Gas Safety Certificates and possession proceedings – where are we now?

23 June 2020

Section 21A Housing Act 1988 provides that a notice under section 21 Housing Act 1988 (Section 21 notice) cannot be served on a tenant by a landlord if that landlord is in breach of one of the ‘prescribed requirements’.

One of the prescribed requirements is, where gas appliances serve a property, for a landlord to serve a gas safety certificate on a tenant and (if the gas appliances for a property are outside of that property) to place a copy of that gas safety certificate in a prominent place inside the property. (This was introduced by the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015, Reg 2(1).)

It is well known that a landlord must carry out an annual safety inspection of all gas appliances serving a rented residential property and that failure to do so is a criminal offence. (See the Gas Safety (Installation and Use) Regulations 1998, Reg 36).

In the case of Caridon Property Ltd v Shooltz [2018] it was held that the gas safety certificate and (if applicable) the copy displayed prominently inside the property, had to be provided before the tenancy commenced; if not, a landlord was prevented from ever serving a Section 21 notice.

Therefore the failure to comply with this prescribed requirement removed the landlord’s right to serve a Section 21 notice and effectively rendered the tenancy agreement a fully assured tenancy, rather than assured shorthold.

In the case of Trecarrell House Ltd v Patricia Rouncefield [2020] (Trecarrell), the Court of Appeal held (by a majority decision) that a landlord isn’t prevented from serving a Section 21 notice so long as a valid gas safety certificate has been served on the tenant (and, if applicable, placed in a prominent place inside the property) before a Section 21 notice has been served.

Therefore the decision of the Court of Appeal in Trecarrell is a highly important and helpful decision for landlords, as it allows a landlord to remedy a failure to serve a gas safety certificate before a tenancy commenced, and then serve a Section 21 notice.

It is to be expected that Trecarrell will be appealed to the Supreme Court by the tenant.

It should also be noted that the Government is considering legislation to remove Section 21 notices altogether, and so this issue has a long way to go before it is finally resolved.

Should you have any questions on the matters covered above, please contact Ian Rattenbury or Jonathan Hulley or another member of Birketts' Social Housing Team.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at June 2020.