Gas Safety and Section 21 Notices –The effect of Trecarrell House Ltd v Rouncefield  EWCA Civ 760
Rachel Garton, 22nd June, 2020
Section 21 of the Housing Act 1988 (‘the Act’) creates a “no fault” ground to terminate an Assured Shorthold Tenancy (‘AST’)
The Gas Safety (Inspection and Use) Regulations 1998 (‘the Regulations’) require a landlord to carry out an annual gas safety inspection and to give a Gas Safety Certificate (‘the GSC’) to any tenant prior to their occupation. A notice pursuant to Section 21 of the Act may not be served if the landlord has failed to comply with the Regulations.
The previously understood position is that where a GSC is not provided to a tenant at the outset of a tenancy, the landlord cannot rectify the breach by serving the GSC on a later date and is therefore prohibited from serving a Section 21 Notice. Due to this provision landlords have found themselves in a difficult position and have not been able to terminate an AST unless they can make out a ‘fault’ ground and serve a notice under Section 8 of the Act.
In the case of Trecarrell House Ltd v Rouncefield the Landlord carried out a gas safety inspection and obtained a GSC but failed to provide it to the tenant before the AST commenced. The GSC was dated prior to the date of the AST but it was served on the tenant 9 months after she went into occupation. The landlord served a Section 21 Notice and the tenant claimed that it was invalid as a GSC had not been served at the outset of the AST.
The County Court ruled that the GSC should have been provided before the tenant entered into occupation and the landlord was therefore prohibited from serving a Section 21 Notice. The Landlord appealed.
On 18 June 2020, the Court of Appeal ruled that as long as there was a valid GSC when the tenancy began, the landlord can still proceed with serving a Section 21 Notice as long as they serve the GSC before they serve a Section 21 Notice. The failure to comply with the Regulations can therefore be rectified at a later date.
This is reassuring news for landlords as they will not be precluded from serving a section 21 notice in circumstances where a GSC was not provided prior to occupation possibly due to an administrative error. However, the facts of the case and wording of the case leaves open the possibility that lack of a valid GSC at the time when the tenant first entered into an AST remains an irremediable breach and in such circumstances the landlord may not be able to serve a Section 21 Notice.
The solicitor instructed by the tenant have confirmed that the tenant is seeking leave to appeal to the Supreme Court so the position may change in due course depending on the outcome.
The importance of the GSC should also not be understated as a result of this case. A GSC contains vital information for the tenant and a failure to comply with the Regulations constitutes a criminal offence.
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