A recent case offers key learnings on gas safety certificates and S.21 Notices.
The Court of Appeal has confirmed that a landlord’s failure to provide a gas safety certificate prior to a tenant’s occupation does not prevent a landlord serving a section 21 notice, as long as the relevant gas safety certificate has been given before service of the notice.
Background
In February 2017, Ms Rouncefield became the assured shorthold tenant of Flat 2, Trecarrell House of which Trecarrell House Limited was her landlord. The flat was provided with central heating and hot water from a gas boiler located elsewhere in the building. The landlord did not provide her with a gas safety certificate before she entered into occupation but, on 9 November 2017, provided her with a copy of a certificate dated 31 January 2017.
On 1 May 2018, the landlord served a section 21 notice and later issued possession proceedings.
The tenant defended the claim on the basis that because no gas safety certificate had been provided prior to her taking occupation, the landlord was not entitled to serve a section 21 notice. The District Judge dismissed the defence and granted a possession order.
On appeal, the Circuit Judge held that a failure to provide a gas safety certificate before the tenancy commenced was not capable of being remedied and granted the tenant’s appeal against a possession order. In coming to this decision, the Circuit Judge relied on the reasoning of HHJ Luba in Cardon Property Limited v Shooltz. The Court of Appeal granted the landlord permission to appeal.
The Law
Section 21/21A of the Housing Act 1988
- Section 21 of the Housing Act 1988 creates a “no fault / notice only” ground for possession against an assured shorthold tenant.
- Section 21A of the Housing Act 1988 provides that “A notice under subsection (1) or (4) of section 21 may not be given in relation to an assured shorthold tenancy of a dwelling-house in England at a time when the landlord is in breach of a prescribed requirement.”
Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (“2015 Regulations”)
- Regulation 2 of the 2015 Regulations sets out the prescribed requirements for complying with section 21A(2) of the Housing Act 1988. These requirements include:
- To provide an energy performance certificate to a tenant - (Regulation 1.(a));
- To provide a tenant with a gas safety certificate - (Regulation 1.(b)).
- For the purposes of section 21A of the Housing Act 1988, the requirement prescribed by Regulation 1.(b) (providing a gas safety certificate) 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 - (Regulation 2.(2)).
The Gas Safety (Installation and Use) Regulations 1998 (“Gas Safety Regs”)
- The Gas Safety Regs impose various obligation on residential landlords. These obligations include:
- Carrying out an annual gas safety inspection within 12 months of installation and at intervals of not more than 12 months since it was last checked for safety (Regulation 36(3));
- Ensuring a copy of the gas safety certificate is provided to the tenant within 28 days of the check (Regulation 36.(6)(a);
- Providing a copy of the last gas safety certificate before that tenant occupies those premises (Regulation 36.(6)(b)).
The Court of Appeal
The tenant served a Respondents’ Notice, taking a new factual point. It was said that there had been a further gas safety check carried out on 2 February 2018 (incorrectly dated 3 April 2018) and that no gas safety certificate had been provided to the tenant in respect of that test. The tenant submitted that a failure to do so amounted to a breach of a prescribed requirement as the landlord had taken more than 12 months (as permitted by Regulation 36.(3)(a) of the Gas Safety Regs) between inspections and this was a breach of Regulation 36.(6)(a) of the Gas Safety Regs. The tenant contended that this was a further reason why the s.21 notice was invalid. The landlord contended that the gas safety certificate had been given to the tenant before the s.21 notice was served on 1 May 2018.
The Court of Appeal’s decision (by a majority of 2:1) was that:
- Regulation 2(2) of the 2015 Regulations, disapplies the 28 day compliance period for both Regulation 36.(6)(a) and 36.(6)(b) of the Gas Safety Regs.
- The failure to provide a gas safety certificate before a tenant begins occupation can be remedied by the landlord. To do this, a landlord must provide a tenant with a copy of the gas safety certificate that was in force before they entered into occupation.
- If a landlord fails to carry out a gas safety check within the 12 month timeframe (required by Regulation 36.(3)(a)), they can remedy this breach by providing the tenant with a gas safety certificate once the inspection has been completed.
- The landlord had remedied the Regulation 36(6)(b) default by providing the gas safety certificate before serving its section 21 notice. However, the factual dispute as to whether the landlord provided the tenant with a gas safety certificate relating to a subsequent check in February 2018, before the section 21 notice was served on 1 May 2018. The case has been sent back to the county court to determine this issue.
Comment
On the face of it, the judgment will be welcomed by landlords. Landlords can pursue section 21 claims, provided tenants have been served with a gas safety certificate and any subsequent gas safety certificates are provided prior to the service of a section 21 notice.
In addition, the failure to carry out the annual gas inspection in time, will not be fatal, so long as it is carried out and a gas safety certificate provided before a section 21 notice is served. This issue of gas safety certificates has caused significant practical difficulties for landlords recently. This judgment will come as light relief to those landlords that continue to struggle to complete gas safety inspections due to COVID-19.
The judgement does not indicate what the position would be if a landlord did not have a gas safety certificate for the period before the tenancy began. It is unclear whether this type of breach is capable of being remedied by the landlord. However, social landlords as a matter of course ensure that gas is capped when properties are left void and a gas safety check is completed when the gas is reinstated at the property. If this procedure is followed, it is unlikely that social landlords will find themselves operating within this grey area.
If you have any queries in relation to the above, please do not hesitate to contact a member of the Housing and Regeneration Team.
A full copy of the judgment can found below:
