The Court of Appeal has now issued its decision in Trecarrell House Limited v Rouncefield (2020) EWCA Civ 760.
The case considers the effect of a landlord failing to provide a valid gas safety certificate (GSC) to a tenant before the tenant takes up occupation of the property. Does this, as was found in the first appeal, and in Caridon Property Ltd v Monty Shooltz, mean that the landlord can never serve a section 21 notice, even if a valid gas safety certificate is later provided?
This decision is important as it will be binding on the lower courts and gives some much needed clarity to landlords as to the position if they have failed to serve a GSC at the start of the tenancy.
The principle issue for the Court of Appeal was whether regulation 2(2) of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015, along with with regulations 36(6) and/or 36(7) of the Gas Safety (Installation and Use) Regulations (‘GSR’) 1998, meant that a section 21 notice could never be served if the landlord had not provided the tenant with a valid GSC before they went into occupation.
The Court of Appeal was not persuaded that for the purposes of serving a valid Section 21 notice “the obligation to provide the GSR to a new tenant prior to the tenant taking up occupation cannot be complied with by late delivery of the GSR. Late delivery of the document does provide the tenant with the information he needs.” However, this would only seem to cover the position where there was a GSC at the start of the tenancy but it was provided to the tenant late, not the situation which more commonly arises where there is no GSC in place at the start of the tenancy and the landlord carries out the gas safety check later in the tenancy.
The tenant also argued that a failure to carry out a safety check within 12 months of a previous check meant that the Landlord could not serve a valid Section 21 notice. This was not accepted by the Court of Appeal. Therefore if an annual gas safety check is carried out late but it is carried out and a copy of the GSC provided to the tenant, this should not preclude a landlord from serving a valid section 21 notice.
While this decision is perhaps not as clear cut as we had hoped, it does give a measure of encouragement to landlords who have failed to comply that a GSC can be served after the tenant has entered into occupation. Further if the GSC is provided before the tenant enters into occupation, future late safety checks will not prevent you from regaining possession.
That said if you want to ensure you can regain possession of your property when you need to, the simplest thing is to make sure you comply with the requirements right from the start of the tenancy and then there is no room for argument. Make sure that you:
- Provide the GSC (along with the EPC and How to Rent Booklet) to the tenant prior to them taking up occupation of the property.
- Keep a record of the documents provided and when and how they were served.
- Carry out the annual gas safety check on time each year and provide a copy of the GSC to the tenant
- Keep copies of each annual GSC and record the date they were carried out and provided to the tenant. The court now requires copies of all GSCs served throughout the tenancy, the date the check was carried out and the date the GSCs were served on the tenant to be provided to the court with accelerated possession claim forms.
It is also important to keep in mind that Section 21A of the Housing Act 1988 is not the primary sanction for non-compliance with the requirement to carry out the annual gas safety check. A breach of the Gas Safety (Installation and Use) Regulations 1998 is punishable as a criminal offence under s.33 of the Health and Safety at Work etc. Act 1974 and a landlord whose breach of the regulations results in the death of a tenant may also have a potential criminal liability for manslaughter.