Gas Safety and Section 21 Notices
Residential landlords and letting agents will have been eagerly awaiting the judgment in Trecarrell House Ltd v Rouncefield which was handed down last month. The key point to take away is that it has overruled the position in Caridon Property Ltd v Monty Shooltz.
In Monty Shooltz, the outlook was bleak for a landlord that had failed to present the Gas Safety Certificate (“GSC”) to a tenant prior to their occupation of a property (a prescribed requirement). It precluded them from ever serving a section 21 (or ‘no fault’) notice as the breach was deemed irredeemable.
Ms Rouncefield became the tenant under an assured shorthold tenancy in February 2017. She had not been provided with a GSC for the property prior to her occupation by her landlord, Trecarrell House Ltd. The GSC was subsequently provided in November 2017 although, notably, it was dated January 2017.
In May 2018, the landlord served a section 21 notice on Ms Rouncefield. She sought to defend the possession claim on the basis that she had not been provided with the GSC prior to her occupation. That argument was dismissed but, on appeal, it was held that failure to provide the GSC prior to occupation was a breach incapable of being remedied and thus the section 21 notice was invalid. It followed that the landlord was not entitled to possession.
The Court of Appeal
The court considered that the purpose of providing the GSC prior to occupation was not to prevent a landlord from serving a section 21 notice. Other prescribed requirements (such as protecting a tenant’s deposit) are capable of remedy and it was therefore questionable why this requirement was not. The GSC was in fact provided to the tenant before service of the section 21 notice and further demonstrated that the property was safe from commencement of the tenancy.
This decision will be welcomed by many landlords. Failing to provide the GSC prior to occupation is not considered fatal to a section 21 notice as long as the GSC is provided before or at the same time as the section 21 notice is served. The Court of Appeal appeared more flexible in its interpretation than the courts beneath it and appears to recognise that administrative errors can occur.
The importance of Gas Safety Regulations however cannot be overstated. This case deals with late compliance rather than non-compliance and it remains unclear whether the same stance would be taken if the GSC was not in place at the time of the commencement of the tenancy. A landlord can face criminal liability for non-compliance with Gas Safety Regulations so it may be unlikely that the position is ever tested.
It is worth noting that it is possible that there will be a further appeal to the Supreme Court which may overrule the position in Trecarrell House Ltd v Rouncefield. For the time being though this is good law.