Landlord and tenant – Assured shorthold tenancy – Gas safety record (GSR) – Appellant holding assured shorthold tenancy of property – Respondent landlord serving notice under section 21 of Housing Act 1988 and seeking possession – District judge making possession order – Appellant appealing – Whether failure to obtain GSR before tenant taking up occupation fatal to use of section 21 procedure – Appeal allowed
The appellant was granted an assured shorthold tenancy (AST) of 2 Bayfordbury Mansion, Lower Hatfield Road, Hertford by the respondent landlord on 23 August 2019. It was accepted that when the appellant signed the paperwork prior to commencement of the tenancy he signed a check list which acknowledged that he had been given a gas safety record (GSR). It was common ground that the respondent gave the appellant copies of the gas safety certificates in September 2019, November 2019 and October 2020.
On 7 November 2020, the respondent served a notice on the appellant under section 21 of the Housing Act 1988. The effect of the notice, if valid, was to permit the respondent to obtain possession without proof of default by the appellant. The respondent then issued possession proceedings.
Particulars of claim were issued and the appellant filed a defence arguing that he had not received a valid GSR before going into occupation of the property, even though he had signed the checklist indicating that he had. The factual dispute was not resolved at trial.
In Trecarrell House Ltd v Rouncefield [2020] EWCA Civ 760; [2020] EGLR 30, the Court of Appeal established that the late provision of a relevant GSR to a new or existing tenant would not debar the landlord from subsequently serving notice under section 21 of the 1988 Act to recover possession.
The district judge decided that Trecarrell could not be distinguished and granted the respondent an order for possession. The appellant appealed.
Held: The appeal was allowed.
(1) The majority decision of the Court of Appeal in Trecarrell addressed whether late compliance of service of a GSR on a new tenant complied with the prescribed requirements or was fatal. The focus of the court was on “late delivery” not failure to obtain the relevant GSR at all. That decision was not binding in the present case as the facts in that case related to late service of a GSR that was obtained before the tenant moved in whereas here the issue was the failure to obtain a GSR before the tenant occupied. However, the approach taken by the majority was persuasive and highly relevant.
In the present case, the disparity in treatment of the existing and new tenant did not exist as it did in Trecarrell. On the current facts, if the appellant’s argument was correct, the existing tenant who had never received a valid GSR (ie one that existed before they moved in) would be in the same position as the new tenant. Neither could be served with a section 21 notice. Hence there was no disparity of position: Trecarrell distinguished.
(2) The starting point was to look at the actual wording of the relevant statutory provisions. Section 21A was headed “compliance with prescribed legal requirement”. It then provided that the prescribed requirements might include those that related to the “health and safety of occupiers of dwelling houses”. That was an important protection for tenants.
It was clear from regulation 2(2) of the Prescribed Requirements (England) Regulations 2015 that the landlord was required to give a copy of the “relevant record” to the tenant.
Regulation 36(6) of the Gas Safety (Installation and Use) Regulations 1998 provided that the “last” record had to be provided to a “new” tenant. For the purposes of section 21, the prescribed requirement did not mean that the landlord needed to serve that record before the tenant occupied the premises as late delivery of that record would suffice. In the context of the 1998 Regulations, it was plain that the “last” record had to refer to a record that existed before the tenant occupied. The court now had to interpret the meaning of “last record” where the prescribed requirement was only service of the relevant record which was in turn the last record served on the new tenant.
(3) Regulation 36(6)(a) referred to “existing” tenants and the requirement to provide a record to them in accordance with paragraph 3(c). From the wording of paragraph 6, it was clear that there were different requirements envisaged in relation to new and existing tenants.
The only logical meaning of the prescribed requirement in relation to paragraph 6(b) was that the GSR had to be the last one before the tenant moved into occupation. The words “last” and “new” read with the word “relevant” in regulation 2(2) on their natural meaning led to the inevitable conclusion that what was intended was a GSR that existed when the tenant went into occupation.
The prescribed requirements had to have some meaning. Their purpose was to provide tenants with protection as regards their health and safety whilst in occupation. Section 21A and regulation 2 had no force if the GSR could be obtained at any time in the tenancy.
(4) In reading and interpreting section 21A and regulation 2, the court had to have in mind that there was a prescribed requirement to provide the last record to the new tenant. It was intended to ensure that basic checks had been done before tenants took up occupation. Parliament might not have intended that the prescribed requirement had the force of the 1998 Regulations as regards late delivery but it did envisage a basic minimum that there were checks before occupation.
The failure to obtain a GSR prior to occupation turned the tenancy into something that the parties did not envisage but the remedy was to comply with regulation 2(2) and obtain the relevant record before the tenant moved in. If the court interpreted the regulation as the landlord sought, the result was that section 21A(2)(b) had no meaning. There were no meaningful prescribed requirements regarding health and safety as the landlord could serve the relevant GSR immediately before he served the section 21 notice. If the legislature failed to provide a remedy, that did not permit the court to rewrite the regulations so as to provide a meaning that was not available on the wording of the Act and Regulations even when read in context.
The matter would be remitted to a different district judge to decide whether in fact there was a GSR in place which had been provided prior to the section 21 notice being served.
Marina Sergides (instructed by Edwards Duthie Shamash) appeared for the appellant; Savannah Bullen-Manson (instructed by MB Lawyers) appeared for the respondent.
Eileen O’Grady, barrister
