19 Jun 2020

The Court of Appeal decision in Trecarrell House v Rouncefield handed down on 18 June 2020 has found that a failure to provide a gas safety certificate before the commencement of the tenancy does not invalidate a s21 Notice so long as the certificate was given to the tenant at any time before the s21 Notice was served.

Background

Section 21 of the Housing Act 1988 provides a "no fault" ground for possession where the tenant has an assured shorthold tenancy. In order to validly serve a section 21 notice, The Deregulation Act 2015 provides that certain prescribed information must have been given to the tenant before the notice is served. These include giving the tenant a copy of the most recent gas safety certificate before the tenancy commences.

Recent cases had concluded that a landlord's failure to provide a gas safety certificate before the tenant's occupation is a breach of the prescribed requirements and could not be remedied. The impact on landlords in these circumstances was to permanently deprive them of the ability to serve a s21 Notice.

Trecarrell House v Rouncefield

Mrs Rouncefield was an assured shorthold tenant of a property under a tenancy which commenced on 20 February 2017. The tenant had not been provided with a gas safety certificate at the start of the tenancy but one was provided before the service of a s21 Notice on 1 May 2018. The landlord issued possession proceedings and the tenant defended the proceedings on the basis that the gas safety certificate was not provided before the tenancy commenced and therefore the notice was invalid.

In the County Court, the defence was dismissed and a possession order granted. However, on appeal, the Circuit Judge reversed the decision. Permission was granted to take the matter to the Court of Appeal.

The Court of Appeal held the correct interpretation of the legislation and Regulations was that so long as all relevant gas safety certificates has been provided to the tenant prior to serving the section 21 notice, it is irrelevant precisely when the gas safety certificate was provided.

Effect on landlords

The decision provides landlords with a chance to rectify their failure to provide the gas safety certificate at the start of the tenancy, enabling the service of a valid section 21 notice.

This decision will be welcomed by landlords, however it does not clarify the position where the landlord has failed to carry out a safety check before the start of the tenancy and there is no gas safety certificate to provide. Landlords should ensure that they are fully compliant with the requirements of the prescribed regulations to ensure the validity of a s21 Notice cannot be challenged.