A recent Court of Appeal decision has provided some much needed clarity for landlords regarding an interpretation of the relevant statutory framework surrounding the provision of gas safety certificates to tenants.
Section 21 of the Housing Act 1988 provides landlords with a ‘no default’ route to possession of a property let under an assured shorthold tenancy agreement by giving notice in the prescribed form. However, the relevant notice will be deemed invalid if the landlord has failed to comply with a number of procedural steps during the tenancy.
One step is the requirement to give to the tenant a copy of an up-to-date gas safety certificate. In the case of Trecarrell House Limited v Rouncefield, the landlord had a valid gas safety certificate in place but failed to provide a copy of it to the tenant when the tenancy commenced in February 2017, but did do so at a later date before the notice was served. When the landlord served notice in May 2018, the tenant refused to move out and the landlord’s claim for possession was heard in the County Court.
Initially, the landlord was successful in obtaining an order for possession. However, the tenant successfully appealed that order on the grounds that they had not received a gas safety certificate before moving in.
The landlord subsequently 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 gas certificate 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.
The Court of Appeal also considered whether a failure to carry out a gas safety inspection within the time limit required by gas safety regulations could invalidate a section 21 notice. They ruled that a landlord could still serve a valid section 21 notice even where a gas safety inspection has been undertaken late, as long as a copy was provided before serving the section 21 notice, and as long as other prescribed requirements had been satisfied.
Property Litigation expert Andrew Shipp of Gardner Leader explained, “this Judgment is good news for landlords and provides some clarity on a matter which had been a grey area for some time. However, although the court has now confirmed that certain administrative errors can be rectified, this should not be interpreted as any lessening of the prescribed requirements, and it’s still extremely important to follow good practice procedures as closely as possible.”
“An administrative error of failing to provide a copy of a valid gas safety certificate at the start of the tenancy is one thing, but failing to have a valid safety inspection in place is quite another. Landlords should of course remember that they have a legal duty to provide a gas safety certificate for their tenants as a matter of course.”
“Similarly, a delay on undertaking a subsequent inspection at the right time may be acceptable, particularly where tradesmen have not been able to visit premises during lockdown, but the Court of Appeal Judgment is not a licence for landlords to abandon such responsibilities.”
“It remains best practice to ensure that tenants receive all relevant documentation before they move in to the property, failing which, landlords run the risk that their right to possession of their property will be challenged.”
Trecarrell House Ltd v Rouncefield  EWCA Civ 760 (18 June 2020)