Back in March 2018, I posted an article setting out landlords’ obligations and the prescribed information that has to be provided to new tenants which can be read here. In particular, it focused on the case of Caridon Property Ltd –v- Monty Shooltz, and the effect of failing to provide a gas safety certificate (GSC) on serving notice under section 21 of the Housing Act 1988 (the Act).
By way of background, since 1 October 2015, at the beginning of a residential tenancy, a landlord must provide the tenant with:-
In addition, landlords must also secure their tenant’s deposit in a government approved tenancy deposit protection scheme within 30 days of receipt and provide to the tenant the prescribed information regarding the deposit.
Under the Act, landlords are entitled to seek possession of their property once the fixed term tenancy has ended, or during a tenancy with no fixed end date (a periodic tenancy) by giving 2 months’ notice in writing to the tenant, although the notice period has been extended since The Coronavirus Act came into force in March 2020, and which is explained in more detail below. However, it is important to note that a section 21 notice cannot be served if the prescribed information listed above has not been provided to the tenant.
It was previously accepted that, save for information relating to the deposit, the documentation set out above could be served after the tenancy began, but before a section 21 notice was served. However, following the case below in 2018, this has been somewhat of a grey area.
(Central London County Court – 02.02.2018)
The appeal Judge, in the above matter, heard that the landlord failed to provide its tenant with a GSC until 11 months after the start of the tenancy, and a short period before being served with notice under section 21 of the Act. The Judge found that the landlord was in breach of his statutory obligations and the section 21 notice served on the tenant was invalid because he had failed to provide the tenant with a copy of the gas safety certificate prior to the start of the tenancy. As the appeal was heard in the County Court, its decision was not binding, except in London. However, it meant that courts dealing with future appeals could take it into consideration.
Fast forward to January 2020, and the decision in Caridon Property Ltd –v- Monty Shooltz was considered again in the above matter.
In this case, the landlord had a valid GSC but failed to provide the tenant with a copy at the start of the tenancy, but did so at a later date, before notice was served under section 21 of the Act. The tenant refused to move out and the landlord’s claim for possession was heard in the local County Court. Initially, the landlord was successful in obtaining possession of its property. However, the tenant successfully appealed on the grounds that a GSC was not provided before she moved in. In addition, the tenant also argued that a subsequent gas safety check was carried out more than 12 months after a previous one, and that meant that the section 21 notice was invalid. The landlord appealed that decision, which was heard in the Court of Appeal. The judges ruled by a majority in the landlord’s favour. The Judgment confirmed that, as long as a GSC was in force before a tenant occupied the property, and that certificate, together with those for any subsequent period, were provided before a section 21 was served on the tenant, the required steps were complied with.
Regarding the alleged lateness of the gas safety check, Lord Justice Patten commented “I am not persuaded that a failure to carry out the next safety check within 12 months of the last one means that the landlord cannot comply [with his statutory obligations] as a prescribed requirement if he serves the tenant with a copy of the record once the check has been carried out.”
The case of Trecarrell House Ltd –v- Patricia Rouncefield has provided much needed clarity for both landlords and tenants alike. It means that some administrative errors can be rectified, and which may not affect the validity of a future notice served under section 21 of the Act. However, it is imperative that landlords do not become laid-back in following their statutory obligations. A landlord should err on the side of caution and provide all the prescribed information before a tenancy commences. In addition, it is advisable that a landlord place copies of the GSC and electric performance certificates in a prominent place in the property itself.
In particular, it is also imperative that landlords comply with regular gas safety and electrical checks. As Lady Justice King reminded the appeal court, “The bar to the service of a section 21 notice is collateral to the criminal sanctions under s.33 Health and Safety at Work etc. Act 1974 and therefore [section 21] is not the primary sanction for non-compliance”.
If a landlord, or a tenant, is unsure of its obligations, it should seek independent legal advice as soon as possible.
As a final point, the Coronavirus Act which came into force on 25 March 2020, halted court possession hearings for at least five months, which meant that court orders ordering an eviction would not be processed until end of August 2020. In addition, it provided that landlords had to give 3 months’ notice period to tenants to vacate a property.
However, from 29 August 2020 the Government extended the notice period to 6 months unless in serious circumstances, such as anti-social behaviour and domestic abuse, where the notice period has returned to the relevant pre-Coronavirus Act period. Further, where at least 6 months’ of rent arrears is unpaid, a minimum of 4 weeks’ notice will be required. The Government also extended the stay of possession court hearings a further 4 weeks to 20 September 2020.
Again, before serving notice, it is imperative that landlords seek independent legal advice if they are unsure of their statutory landlord obligations.