I may have imagined it, but did carbon dioxide gas levels spike ever so slightly when judgment was given in Trecarrell House Ltd v Rouncefield [2020] EWCA Civ 760; [2020] PLSCS 119? Landlords and practitioners who advise them will have breathed a collective sigh of relief on reading the Court of Appeal’s favourable decision.
The statutory provisions
Section 21 of the Housing Act 1988 introduced a no-fault eviction procedure for assured shorthold tenancies. It provided the landlord with a mandatory ground of possession in circumstances where the tenant had been given two months’ notice in writing that possession was required.
Over time, parliament gradually introduced a number of statutory prescribed requirements for landlords to comply with before they could serve a section 21 notice. Under section 21A of the Act, a landlord cannot serve a section 21 notice on a tenant “at a time when the landlord is in breach of a prescribed requirement”.
Regulation 2(2) of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 specified the prescribed requirements to which section 21A of the Act applied. Regulation 36(6) of the Gas Safety (Installation and Use) Regulations 1998 fall within the prescribed requirements.
Pursuant to regulation 36(6)(a) of the 1998 Regulations a landlord must give an existing tenant a copy of the most current GSC within 28 days of the gas safety inspection. By virtue of regulation 2(2) of the 2015 regulations, this prescribed requirement “…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… does not apply”.
Pursuant to regulation 36(6)(b) of the 1998 regulations, a copy of the current gas safety certificate (GSC) must be given to a tenant prior to the tenant going into occupation of the property.
The trip wire
Trecarrell House Ltd (TH) was the owner of a flat situated at Trecarrell House, Carthew, Terrace, St Ives, Cornwall. On 20 February 2017, TH granted Patricia Rouncefield an AST. TH failed to give Rouncefield a GSC before she entered into occupation of the flat. Subsequently on 9 November 2017, TH gave Rouncefield a GSC dated 31 January 2017. On 1 May 2018, TH served a section 21 notice on Rouncefield seeking possession of the flat.
When possession proceedings were subsequently issued, Rouncefield defended the claim by arguing that the section 21 notice was invalid. As TH had failed to give her a GSC prior to her going into occupation of the flat it was in breach of a prescribed requirement and therefore debarred from serving the section 21 notice by virtue of section 21A of the Act. The district judge granted possession. In doing so, the judge found that a failure to provide the GSC before the tenant went into occupation was not a bar to late compliance.
Rouncefield appealed. Relying on Caridon Property Ltd v Monty Shooltz (unreported, February 2018) the circuit judge in the county court held that a failure to provide a tenant with a GSC before the tenant went into occupation could not be remedied by late compliance. A landlord would, in such circumstances, be debarred from serving a section 21 notice. TH appealed to the Court of Appeal.
The release
On appeal Rouncefield additionally argued that TH had carried out a gas safety inspection in February 2018. A GSC for that inspection was not provided. This was denied by TH. Further, as the February 2018 inspection was carried out 12 months after the January 2017 inspection, it breached regulation 36(6)(a) of the 1998 regulations and rendered the section 21 notice invalid.
By a majority of 2 to 1, the Court of Appeal held that the correct construction of section 21A of the Act and regulation 2(2) of the 2015 regulations was to exclude the time limits for compliance set out in regulation 36(6)(a) and (b) of the 1998 regulations. Late compliance would suffice.
Accordingly, a landlord that failed to provide a tenant with the GSC prior to the tenant going into occupation could serve a section 21 notice if the GSC was given to the tenant beforehand.
Additionally, a failure to carry out a gas safety inspection within the 12-month time limit did not debar the landlord from serving a section 21 notice if the GSC was given to the tenant before service of the section 21 notice.
All resolved?
The judgment in Trecarrell has not resolved all issues. It still remains uncertain whether the absence of any GSC before the tenant goes into occupation acts as an absolute bar on the service of a section 21 notice.
Key points
- A failure to provide a gas safety certificate (GSC) to the tenant prior to going into occupation does not debar a landlord from serving a section 21 notice if the GSC is given to the tenant before service of the section 21 notice
- If an annual gas inspection is carried out after the 12-month time limit has expired, a landlord can serve a section 21 notice once the GSC has been provided to the tenant
Elizabeth Dwomoh is a barrister at Lamb Chambers
