Trecarrell House v Rouncefeld [2020] EWCA Civ 760; [2020] PLSCS 119 is authority for the proposition that the late provision of a relevant gas safety certificate to a new or existing tenant will not debar the landlord from subsequently serving notice under section 21 of the Housing Act 1988 to recover possession.
Trecarrell left unanswered the question of whether a landlord was debarred from serving a section 21 notice if he failed to obtain a relevant GSC before a new tenant went into occupation. In Byrne v Harwood-Delgado (unreported, June 2022, County Court at Luton), HHJ Bloom has answered this question in the affirmative.
The respondent landlord was the owner of a property situated in Hertford. He granted an assured shorthold tenancy to the appellant tenant, commencing on 23 August 2019. A checklist signed by the tenant before he went into occupation stated that a copy of the GSC had been given to him before the commencement of the tenancy. It was common ground between the parties that the landlord gave the tenant copies of GSCs in September 2019, November 2019 and October 2020.
On 7 November 2020 the landlord served a section 21 notice on the tenant. Possession proceedings were issued thereafter. Notwithstanding the checklist he had signed, the tenant defended the possession proceedings on the basis that he had not received a valid GSC before going into occupation of the property. It was common ground that neither party had produced any such GSC at trial. This factual dispute was not resolved at trial. Instead, relying on Trecarrell, the trial judge granted possession on the basis that the tenant had received a GSC before the section 21 notice was served.
In allowing the tenant’s appeal, Judge Bloom distinguished Trecarrell on the facts. The focus in Trecarrell was on “late delivery” of the relevant GSC and not the failure to obtain the relevant GSC at all. In Trecarrell the landlord had obtained a GSC before the tenant went into occupation, but had given the same to the tenant late.
Having regard to the statutory provisions, Judge Bloom found that by virtue of section 21A and regulation 2(2) of Prescribed Requirements (England) Regulations 2015 (the 2015 Regulations) the requirement prescribed on the landlord was to give a copy of the “relevant record” to the tenant. The meaning of the “relevant record” had to be construed in light of regulation 36(6) of the Gas Safety (Installation and Use) Regulations 1998 (the 1998 Regulations). Pursuant to regulation 36(6)(b) of the 1998 Regulations the “last” GSC must be provided to a new tenant. The only logical meaning was that the last GSC before the tenant went into occupation must be given to the tenant.
Judge Bloom rejected the landlord’s contention that any subsequent GSC could be given to a tenant before the service of a section 21 notice if the landlord failed to obtain a GSC before the tenant went into occupation. The court held that to find otherwise would render regulation 36(6)(b) of the 1998 Regulations otiose.
The fact that a failure to obtain a GSC before the tenant went into occupation could to all intents and purposes turn an AST into an assured tenancy, may seem draconian, but that was the consequences of the statutory provisions. A landlord could avoid this consequence by complying with regulation 2(2) of the 2015 Regulations.
The matter was remitted back to the county court to determine the factual dispute as to whether the tenant did in fact receive a GSC before going into occupation of the property.
Elizabeth Dwomoh is a barrister at Lamb Chambers
