Who should read this?

Private Landlords, Estate Agents and Letting Agents, Social Housing Providers, Executive Teams, Boards, Income, Housing Management and Tenancy Enforcement Teams.

What has been announced?

The Court of Appeal decision was handed down in the case of Trecarrell HouseLimited v Rouncefiled (2020) EWCA Civ 760on 18^th June 2020. A copy of the Judgment can be found here: https://www.bailii.org/ew/cases/EWCA/Civ/2020/760.html.

This related to a failure by a Landlord to provide a copy of the Gas Safety Certificate to a Tenant before the Tenant took up occupation of a property pursuant to an Assured Shorthold Tenancy (“AST”) agreement, and as such the Tenant alleged that a subsequent s21 Notice Seeking Possession (“s21 NSP”) served was invalid, even if a valid Gas Safety Certificate was provided after the Tenant took up occupation but before service of the s21 NSP.

The Court of Appeal held that a s21 NSP can be valid if the Gas Safety Certificate in place at the start of the AST is served late, so long as it is provided before the s21 NSP is served.

Background

Regulation 2(2) Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 read together with Regulations 36(6) and/or 36(7) Gas Safety (Installation and Use) Regulations 1998, meant that a s21 NSP could never be served if the Landlord had not provided a Tenant with a valid Gas Safety record before the Tenant took up occupation or displayed a copy of the record at the premises before the tenant went into occupation.

s21A Housing Act 1988 (as amended) provides that a s21 NSP “may not be given in relation to an assured shorthold tenancy of a dwelling-house in England at a time when the landlord is in breach of a prescribed requirement.”

Regulation 2 Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 provides that (for tenancies beginning on or after 1 October 2015):

“2.—(1) Subject to paragraph (2), the requirements prescribed for the purposes of section 21A of the Act are the requirements contained in—

regulation 6(5) of the Energy Performance of Buildings (England and Wales) Regulations 2012(2) (requirement to provide an energy performance certificate to a tenant or buyer free of charge); and

paragraph (6) or (as the case may be) paragraph (7) of regulation 36 of the Gas Safety (Installation and Use) Regulations 1998(3) (requirement to provide tenant with a gas safety certificate).

(2) For the purposes of section 21A of the Act, the requirement prescribed by paragraph (1)(b) is limited to the requirement on a landlord to give a copy of the relevant record to the tenant and the 28 day period for compliance with that requirement does not apply.”

Paragraphs (6) and (7) of Regulation 36 Gas Safety (Installation and Use) Regulations 1998 states:

“(6) Notwithstanding paragraph (5) above, every landlord shall ensure that—

a copy of the record made pursuant to the requirements of paragraph (3)(c) above is given to each existing tenant of premises to which the record relates within 28 days of the date of the check; and

a copy of the last record made in respect of each appliance or flue is given to any new tenant of premises to which the record relates before that tenant occupies those premises save that, in respect of a tenant whose right to occupy those premises is for a period not exceeding 28 days, a copy of the record may instead be prominently displayed within those premises.

(7) Where there is no relevant gas appliance in any room occupied or to be occupied by the tenant in relevant premises, the landlord may, instead of ensuring that a copy of the record referred to in paragraph (6) above is given to the tenant, ensure that there is displayed in a prominent position in the premises (from such time as a copy would have been required to have been given to the tenant under that paragraph), a copy of the record with a statement endorsed on it that the tenant is entitled to have his own copy of the record on request to the landlord at an address specified in the statement; and on any such request being made, the landlord shall give to the tenant a copy of the record as soon as is practicable.”

So, can a Landlord regularise the position by providing the Tenant with a Gas Safety Certificate late, so long as it is provided before a s21 NSP is served?

What if no Gas Safety Certificate existed when the AST started?

What does this mean for Private Landlords and Social Housing Providers?

• A Gas Safety Certificate must be in place for any property at a time when it is let to a Tenant using an AST or Starter Tenancy.
• A copy of the Gas Safety Certificate shouldbe provided to the Tenant before they enter in to occupation of the property.
• Ifa copy of the Gas Safety Certificate is not provided to the Tenant before a s21 NSP is served on the Tenant then the s21 NSP will be invalid.
• So long as the Gas Safety Certificate which existed at the start of the Tenancy is provided to the Tenant beforethe date of the s21 NSP then the s21 NSP will be valid.
• Landlords should be aware that if no Gas Safety Certificate exists at the start of the Tenancy, then simply having one done late and then providing it to the Tenant is not going to be sufficient. Any s21 NSP served is likely to be invalid in those circumstances.

What we will be doing

Our Housing and Regeneration Team are available to offer you help and advice on general matters flowing from the above or in relation to any specific cases you may have. We are still receiving new instructions and opening new cases.