A landlord’s failure to issue an assured shorthold tenant with a gas safety certificate (GSC) prior to occupation does not create a permanent bar to issuing a section 21 eviction notice, the Court of Appeal has ruled.
By a two-to-one majority, the court found in favour of the landlord of a block of flats in St Ives, Cornwall, that it is possible to rectify the failure by providing the GSC before issuing a notice terminating the tenancy under section 21 of the Housing Act 1998.
Giving the leading judgment, Lord Justice Patten said that the conclusion of the lower courts in this case and another influential case that the failure to comply strictly with regulation 36(b)(b) of the Gas Safety (Installation and Use) Regulations 1998 excludes the service of a section 21 notice for all time “cannot be justified” under the 1998 Act and the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015.
Though he confessed the point was “not straightforward”, he said that he was not persuaded that the obligation to provide a GSC to a new tenant prior to the tenant taking up occupation could not be complied with by late delivery of the GSC.
“Late delivery of the document does provide the tenant with the information he needs,” he said, adding that it seemed unlikely that parliament would have intended only a minimal delay to delivery of the GSC to permanently prevent the landlord seeking possession via a section 21 notice.
However, the case now has to go back to Truro County Court to decide on the facts whether the landlord in question, Trecarrell House, had successfully issued a more recent GSC to tenant Patricia Rouncefield prior to the section 21 notice it issued on 1 May 2018.
Brooke Lyne of Landmark Chambers, who acted for Trecarrell House, said that the issue was one of concern to landlords, as the lower courts in the past couple of years had held that landlords were unable to use section 21 if they had failed to give a copy of the GSC prior to the tenant taking occupation. The crucial question, she said, was whether failure to do so meant landlords could never serve a section 21 notice.
“Thankfully, the Trecarrell decision says that is wrong,” she said. “You can still serve it late, at some point prior to service of the section 21 notice.”
In addition, the court found that the landlord’s continuing duty to provide an up-to-date GSC within 28 days of an annual check being carried out was not breached in the event that the inspection did not take place within the required 12 months.
Lyne added: “The Court of Appeal said that, if you carry out that inspection late, as long as you give the relevant GSC prior to section 21, then you are OK. Particularly in the context of the last few months, where landlords won’t have done gas safety inspections within the 12 month period, they are not going to be in a position where they cannot serve a section 21 notice..”
Georgina Redsell, senior associate at Charles Russell Speechlys LLP, said that the issue of gas safety certificates has caused “significant practical difficulties for landlords” and that the Court of Appeal’s ruling provides “some long awaited clarity”.
She added: “By finding that a landlord can provide a gas safety certificate late, after a new tenant has moved in, the court has recognised the need to balance the safety of occupiers of property with the ability of a landlord to take possession of its property at the end of the tenancy, without having to prove any fault on the part of the tenant. Going forward, landlords will not be prevented from serving a section 21 notice seeking possession if they have not served the gas safety certificate before the tenant takes up occupation. However, they must serve it before they can serve a valid section 21 notice.
“However, the decision was not unanimous and it must be viewed in the context of the increasing regulation of residential tenancies, with a number of new measures coming into force during 2019 and 2020. There is more reform on the horizon, including the government’s proposals to abolish the section 21 process and so called ‘no fault evictions’. With this in mind, today’s decision may give landlords one less thing to worry about.”
Elizabeth Dwomoh, barrister at Lamb Chambers, said that the judgment provided a “very sensible outcome”, adding: “Landlords will be relieved to read that a failure to give a copy of the gas safety record to a tenant before they go into occupation of the premises will not act as a once-and-for-all bar on the service of a section 21 notice if an up-to-date certificate is given before or at the same time the section 21 notice is served.”
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