In positive news for residential landlords, the Court of Appeal in Trecarrell House Limited v Patricia Rouncefield has ruled that a landlord that had served a gas safety certificate only after the grant of an assured shorthold tenancy (AST) was permitted to serve a no-fault section 21 notice to evict their tenant and regain possession of their property.
The High Court had decided, following the decision in Caridon Property Ltd v Monty Shooltz, that since the landlord had failed to provide a gas safety certificate prior to the tenant taking up occupation, this could not be remedied by later service of the certificate. The decision in Caridion caused a lot of concern for landlords as it meant that once a breach occurred, (even if for a short period by a genuine oversight) the right to serve a section 21 notice to regain possession was permanently lost and tenancies were effectively converted into assured tenancies. Landlords could only re-take possession if they could establish one of the statutory grounds available under Schedule 2 of the Housing Act 1988.
The Court of Appeal disagreed with this interpretation of the relevant legislation. It found that the landlord was prevented from serving a section 21 notice only while they were in breach of the obligation to provide the safety certificate. Once they had served the required certificate, they were no longer in breach.
As a result of this decision, a landlord who was previously prohibited from serving a section 21 notice while in breach of the requirement to provide or display a valid gas safety certificate can make good that omission by providing the certificate at a later date. They are then able to serve a section 21 notice requiring possession.
The Court of Appeal in handing down judgment acknowledged that the legislation governing the position (the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015) is not as clear as it might have been. However, a 2:1 majority considered that the correct interpretation of the legislation allowed the breach to be remedied, in common with the approach for other failures by landlords, such as a failure to place deposits in an authorised tenant scheme where a section 21 notice could be served where a deposit was first returned to the tenant before service.
It was also noted that separate legislation exists to provide penalties where landlords have failed to comply with their gas safety responsibilities (including potential criminal liability under the Health and Safety at Work etc Act 1974). It was therefore considered unlikely that Parliament intended such a draconian sanction for providing a gas safety certificate after the tenancy had commenced.
Given the unclear drafting in the legislation (which does seem to allow for irremediable procedural breaches), we may not have seen the end of the debate on the subject of gas safety certificates. The judgment will assist landlords who fail to provide a copy of a gas safety certificate before the tenant takes up occupation or within the prescribed time limits for annual gas safety checks. However, the Court of Appeal has not gone so far as to confirm that a failure to have a certificate at all prior to the beginning of the tenancy is a remedial breach.
Landlords should keep careful records to evidence that they have carried out the appropriate gas safety checks and have supplied the relevant certificates to their tenants (both at the beginning of tenancies and on subsequent annual inspections) to reduce delay in the event that the landlord wishes to serve a Section 21 Notice.