Landlord’s failure to a provide gas safety certificate prior to occupation by a tenant does not prevent a landlord later serving a section 21 notice

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Landlord’s failure to a provide gas safety certificate prior to occupation by a tenant does not prevent a landlord later serving a section 21 notice

Published 25 June 2020

An Assured Shorthold Tenancy (“AST”) is the most commonly encountered type of tenancy in England & Wales and if you have let your property on a short-term basis, the likelihood is your tenancy falls within this category.

Section 21 of the Housing Act 1988 (“the Act”) provides that a landlord may regain possession of a property let on an AST after the fixed term has expired by serving a section 21 notice and giving his or her tenants 2 months’ notice[1] to leave the property.

It is possible to use an accelerated Court procedure following the service of a section 21 notice, which means that a possession order requiring tenants to leave the property can be obtained in as little as three weeks after the notice period has expired.

It is not necessary for the landlord to rely on and establish one of the grounds for possession set out in Schedule 2 of the Act, nor does the court have to be satisfied that it is reasonable to make the order.

The ability to serve a section 21 notice is regarded as important to landlords due to the ability it affords them to recover possession quickly and without having to prove to the Court any particular circumstance justifying or requiring the making of a possession order.

Since their introduction in 1997, the AST has come under considerable criticism by housing charities and advocates, because a tenant who has been in a property a number of years on a rolling monthly tenancy (following the expiry of their fixed term AST) can find themselves homeless within 3 months of first receiving a section 21 notice due to no fault of their own.

Various prescribed requirements have been imposed upon landlords if they wish to use the section 21 procedure (see s.21A of the Act) which includes the requirement to protect tenants’ deposits in a recognised government scheme and to serve upon the tenant a document giving particulars of the deposit and where is it protected.

The prescribed requirements include complying with regulation 36 of the Gas Safety (Installation and Use) Regulations 1998. In order to comply with regulation 36,  a Landlord must carry out an annual gas safety inspection; give a tenant a copy of a gas safety certificate within 28 days of any such inspection and give the current certificate to any tenant prior to occupation.

Until recently, the position was that the a gas safety certificate needed to be provided to the tenant before they moved in should the landlord wish to use the section 21 procedure. Additionally, the situation could not be remedied by giving the certificate to the tenant after they moved in. Even if the gas safety certificate was a couple of days late, the landlord was forever prevented from using the section 21 procedure to regain possession.

The case which confirmed this point was the first instance decision of Caridon Property Limited v Shooltz [2018] WL 05822845. Whilst this was decision was a county court appeal to the circuit judge, and thus not technically binding, the Judge who made this decision is an eminent and respected housing practitioner and his decision was extremely persuasive, even if not binding.

However, the Court of Appeal has now ruled on this point and on 18 June 2020 handed down judgment in the case of Trecarrell House Ltd v Rouncefield [2020] EWCA Civ which categorically overruled Caridon. As a result of this Court of Appeal decision, so long as a landlord provides the tenant with a copy of the gas safety certificate that was in force before the tenant entered into occupation and a copy of any further certificate that related to a subsequent inspection prior to serving the section 21 notice, this will cure any breach of the prescribed requirements barring the use of section 21. In effect, the Landlords no longer simply have only one opportunity to provide the gas safety certificate at the outset of the tenancy, but they now have the opportunity to rectify the situation by serving the gas safety certificate before or with the Section 21 notice

That being said, best practice remains to ensure that the gas safety certificate in force is provided along with all other prescribed documentation when the tenant takes occupation. The prescribed requirements imposed upon landlords on the grant of an AST are precise and it is not uncommon for landlords to overlook all the requirements. Therefore, we would recommend that Landlords should always take legal advice before granting an AST and before serving a section 21 notice.

[1] Currently 3 months as a result of the emergency legislation passed during the COVID 19 Pandemic

Authors

Guy Knight

Guy Knight

London - Walbrook

+44 (0)20 7894 6299

Rosa-Maria Kane

Rosa-Maria Kane

London - Walbrook

+44(0)20 7894 6909

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