Section 21 & Gas Safety (Installation and Use) Regulations 1998 - where are we now?

25 Jun 2020

Court of Appeal hands down judgment in Trecarrell House Ltd v Rouncefield [2020] EWCA Civ 760

This latest housing decision in the Court of Appeal provides clarity in relation to a Landlord’s duty to provide a gas safety certificate… but does it go far enough?

When it comes to gas safety across a Landlord’s housing stock, there are various statutory duties that the Landlord must comply with pursuant to The Gas Safety (Installation and Use) Regulations 1998 (the Gas Safety Regulations). Those Regulations set out that a Landlord must:

  • Carry out an annual gas safety inspection - Regulation 36(3);
  • Provide tenants with a copy of that gas safety certificate within 28 days of the inspection - Regulation 36(6)(a);
  • Provide a gas safety certificate to a new tenant of premises “before that tenant occupies those premises” - Regulation 36(6)(b); 

We know that Section 21 Housing Act 1988 was introduced as a means of securing a no fault basis for possession where a tenant was occupying premises by virtue of an assured shorthold tenancy.

The Gas Safety Regulations and Section 21 Housing Act 1988 were previously distinct pieces of legislation - with neither conditional on the other. The landscape changed with the introduction of the Deregulation Act 2015, specifically ss38 and 39, which amended s21 to include the additional s21A of the Housing Act 1988.

This meant that s21A forged a link between the ability of a Landlord to use the no fault eviction process that s21 afforded and compliance with the Gas Safety Regulations. The aim was to protect tenants from retaliatory evictions by Landlords if, for example, they had complained about disrepair and to ensure that slum landlords were held accountable from the point at which a tenancy is granted. We know, however, that the reality extended far beyond that.

Section 21A sets out that a s21 notice “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.

The “prescribed requirements“ are set out in the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 - paragraph 2(1)(b)) sets out that Regulations 36(6) and 36(7) of the Gas Safety (Installation and Use) Regulations 1998 were such “prescribed requirements.”

HHJ Luba QC in Caridon Property Limited v Shooltz (2018), an appeal from a county court decision, found that where a Landlord has failed to provide a new tenant with a gas safety certificate prior to the new tenant moving in/occupying, then the Landlord will be in breach of the prescribed requirement and unable to serve a s21 Notice during the assured shorthold tenure (which, for social landlords, meant that assured shorthold tenants would move onto assured tenancies, even if they had committed anti-social behaviour during their “probationary” period.) This could not be remedied by serving a subsequent gas safety certificate after occupation, but before service of a s21 notice.

The facts

Enter the case of Trecarrell House v Rouncefield:

  • Ms Rouncefield was a tenant of a flat, pursuant to an assured shorthold tenancy granted by her Landlord, Trecarrell House Ltd, in February 2017.
  • Trecarrell did not provide Ms Rouncefield with a gas safety certificate before she moved in/commenced occupation.
  • Trecarrell did have a gas safety certificate dated January 2017.
  • Trecarrell provided a copy of the January 2017 gas safety certificate to Ms Rouncefield in November 2017.
  • May 2018: Trecarrell served a s21 Notice.
  • Accelerated possession proceedings were brought and defended by Ms Rouncefield on the basis that she was not provided with a gas certificate prior to her occupation, which she says was prescribed requirement, pursuant to s21A and in the absence of this the s21 Notice was invalid.

The Circuit Judge applied HHJ Luba’s reasoning in the Monty Shooltz case: a Landlord’s failure to provide a gas safety certificate before the tenant occupied the property could not be remedied and as such the claim for possession was dismissed.

The Court of Appeal’s decision

On appeal to the Court of Appeal, two further points of appeal arose:

  1. Ms Rouncefield took the point that a further gas safety check had been carried out in February 2018 and Trecarrell failed to provide a certificate within 28 days - further compounding the failure to comply with the prescribed requirements of s21A and the Gas Safety Regulations.
  2. Trecarrell submitted that the 2018 gas certification had been given before the s.21 notice was served.

By a majority of 2:1 the Court of Appeal held that a Landlord’s failure to serve a gas safety certificate before a tenant occupied a property could be remedied.

In effect, this means that a Landlord could still serve a s21 Notice if they carry out the following, before service of the s21 Notice:

  1. The Landlord provides the tenant with a copy of the gas safety certificate which was in force before the tenant occupied; and
  2. A copy of any further, up to date gas safety certificate (even if that wasn’t carried out or provided on time.)

What this means for you

Whilst this judgment will be a welcome one for Landlords in restoring some logic, the Court of Appeal did stress the importance of compliance with the Gas Safety Regulations - failure for which can result in criminal and regulatory sanction.

The Court of Appeal has also not considered, to any great extent, the following issues:

  1. Should a Landlord carry out a NEW gas safety inspection and certification before a tenant moves in (even if there is still an up to date certificate)?; and
  2. What happens if a Landlord simply hasn’t carried out the annual gas safety check and certification on time, by the point they want to serve a s21 Notice?

As a matter of best practice and to avoid any appeals to deal with the caveats of the Trecarrell judgment, BLM would encourage Landlords to consider the following:

  1. Once you know a tenant is about to be granted a tenancy for a void property, if you are able to carry out a gas safety inspection, once the gas is uncapped, and provide updated gas safety certification at this stage then this will evidence compliance with HSE guidance on Regulation 36(2) Gas Safety Regulations- which says:

    If you suspect that an appliance could have been tampered with, or there is the possibility of vandalism while a property remains empty, HSE recommends you arrange for another gas safety check to be completed by a Gas Safe registered engineer before giving access to new tenants. When tenants vacate your premises, they may have removed appliances unsafely (eg leaving open-ended pipes, having shut off the emergency control valve), or left their own appliances.
  2. On the date of tenancy sign up or before the tenant moves in, provide the incoming tenant with:
    • The up to date gas safety certification carried out during the voids stage;
    • Any preceding gas safety certification from the previous 12 months;
    • The EPC certificate.
    • [If you are a private Landlord a copy of the How to rent guide - which does not apply to registered providers of social housing].
  3. Prepare a form which lists all documents provided to the tenant, including the above, and arrange for the tenant to sign and date confirming receipt.
  4. If, during the assured shorthold tenancy period, you are intending to serve a s21 notice, check:
    • Whether you provided the tenant with the gas certification prior to the tenant occupying, if you did not, then arrange for these to be provided before you serve the s21 (whether that be a new gas safety certificate which was carried out during voids/uncapping or the valid gas certification which was in place at the point the tenant occupied;
    • Check whether your annual gas inspection and certification obligations are up to date - if they aren’t can you carry out the inspection and serve the certification within 28 days and before you serve the s21 - if you can, do this.
  5. Prepare certificates of service at each point you serve a tenant with gas certification and set out exactly what was served and when - as good evidence to satisfy the court that the relevant certificates were provided before the s21 Notice.

Written by Elizabeth McCulloch, Solicitor

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to clients of BLM. Specialist legal advice should always be sought in any particular case.

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