Sarah Salmon examines an important Court of Appeal ruling on section 21 notices and the service of relevant gas safety records.
In a somewhat welcome judgment for landlords, the Court of Appeal has held, by a majority, that failure to provide a gas safety record before a tenant occupies a property does not prevent a landlord serving a section 21, Housing Act 1988 notice so long as the relevant certificate has been given before the notice is served.
Background to the case
On 18 June 2020, the Court handed down its long awaited judgment in the case of Trecarrell House Ltd v Rouncefield  EWCA Civ 760.
Ms Rouncefield had an assured shorthold tenancy. At the time the tenancy was granted in early 2017, she was not provided with a copy of the relevant gas safety record nor had the claimant landlord displayed a copy in a prominent position in the property.
On 9 November 2017, the landlord provided Ms Rouncefield with a copy of the gas safety record. The record pre-dated the start of the tenancy. By the time the section 21, Housing Act 1988 notice was served, on 1 May 2018, the gas safety record was out-of-date.
Possession proceedings were brought under the accelerated procedure. Ms Rouncefield defended the possession claim on the basis that the landlord had failed to comply with either regulation 36(6)(b) or 36(7) of the Gas Safety (Installation and Use) Regulations 1998 when it granted her the tenancy and before she began to occupy the flat.
Those regulations set out:
“(6)…every landlord shall ensure that-
(a) a copy of the record made pursuant to the requirements of paragraph (3)(c) above is given to each existing tenant of premises to which the record relates within 28 days of the date of the check;
(b) a copy of the last record made in respect of each appliance or flue is given to any new tenant of premises to which the record relates before that tenant occupies those premises save that, in respect of a tenant whose right to occupy those premises is for a period not exceeding 28 days, a copy of the record may instead be prominently displayed within those premises.
(7) Where there is no relevant gas appliance in any room occupied or to be occupied by the tenant in relevant premises, the landlord may, instead of ensuring that a copy of the record referred to in paragraph (6) above is given to the tenant, ensure that there is displayed in a prominent position in the premises (from such time as a copy would have been required to have been given to the tenant under that paragraph), a copy of the record with a statement endorsed on it that the tenant is entitled to have his own copy of the record on request to the landlord at an address specified in the statement; and on any such request being made, the landlord shall give to the tenant a copy of the record as soon as is practicable.”
Restrictions on serving a s21 notice seeking possession
Within the Housing Act 1988 (among other places), there are various restrictions on the serving of a section 21 notice.
Section 21A provides that neither a section 21(1) nor a section 21(4) notice may be given where a landlord in England is in breach of a prescribed requirement. The requirements that may be prescribed are requirements imposed on landlords by any enactment and which relate to:
- the condition of dwelling-houses or their common parts,
- the health and safety of occupiers of dwelling-houses, or
- the energy performance of dwelling-houses.
The Secretary of State has made regulations that specify which regulations are to be treated as prescribed requirements. Regulation 2, Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 provides:
“2.(1) Subject to paragraph (2), the requirements prescribed for the purposes of section 21A of the Act are the requirements contained in-
(a) regulation 6(5) of the Energy Performance of Buildings (England and Wales) Regulations 2012 (requirement to provide an energy performance certificate to a tenant or buyer free of charge); and
(b) paragraph (6) or (as the case may be) paragraph (7) of regulation 36 of the Gas Safety (Installation and Use) Regulations 1998(requirement to provide tenant with a gas safety certificate).
(2) For the purposes of section 21A of the Act, the requirement prescribed by paragraph (1)(b) is limited to the requirement on a landlord to give a copy of the relevant record to the tenant and the 28 day period for compliance with that requirement does not apply.”
Ms Rouncefield’s defence failed before the district judge. But HH Judge Carr, allowing her appeal, held that the landlord could not rely upon a section 21 notice where there had been late compliance relating to regulation 36(6)(b) and (7).
The landlord appealed to the Court of Appeal.
Court of Appeal decision
The landlord’s appeal was allowed. Lord Justice Patten (with whom Lady Justice King agreed) considering the scheme as a whole held that the obligation to provide the gas safety record to a new tenant before the tenant took up occupation can be complied with by late delivery of the record. Late delivery provides the tenant with the information s/he needs.
Lord Justice Moylan gave a dissenting judgment and would have dismissed the appeal. It will be interesting to see whether the case goes further.
In addition, as noted within the judgment there was a new argument, not advanced below, raised by the parties: whether a landlord can only comply with paragraphs (6) and (7) of regulation 36 if the gas safety record provided to the tenant or displayed is a record in respect of a safety check which has been carried out within the time limits stipulated in regulation 36, namely within 12 months of installation or the previous check. The court left this question for another day.
What does the judgment mean for landlords?
In the introduction to this article, it said this was a “somewhat welcome judgment for landlords”.
Although the obligation to provide the gas safety record to a new tenant before the tenant takes up occupation can be complied with by late delivery, if the landlord wishes to rely on a section 21 notice it seems the “relevant” gas safety record has to be served before any such notice can be relied on to gain possession of a property.
If a landlord does not have a gas safety record for the relevant period – i.e. 12 months covering the start date of the tenancy – the judgment does not seem to suggest that this can be cured by obtaining a gas safety record after the tenancy has begun.
Clarity is still required. Time will tell what the impact of this judgment will be in the county court for issues that are still not made clear.