Gas safety checks and S21 - the Court of Appeal speaks

The Court of Appeal has sided with private landlords in a case which threatened the way they could repossess properties. It's an important judgment, which closes a legal loophole that previously prevented landlords from serving a Section 21 (S21) notice to terminate a tenancy.

No gas safety certificate, no S21

Landlords with assured shorthold tenancies have, over recent years, had increasing restrictions on their ability to terminate their tenancies using the “S21” procedure.

Reliance on the no fault, S21 notice has been restricted and in 2015, changes were made so that the S21 procedure could only be relied upon if certain things had been done. One of those things is to provide a new tenant of premises with a copy of the gas safety certificate before they move in to the property.

The court looked at this issue in 2018 in the case of Caridon Property Ltd v Monty Shooltz and confirmed that if a landlord had not provided their tenant with the current gas safety certificate (i.e. the one in force at the time) before they moved into the property they would not ever be able to validly serve a S21 notice during the course of that tenancy.

Restrictions reconsidered

The Court of Appeal have now had the opportunity to consider this issue further.  In Trecarrell House Ltd  v Rouncefield the court, by a majority, decided that if the valid gas safety certificate, in force at the start of the tenancy, was subsequently provided to the tenant, before the service of the S21 notice then the S21 notice would be valid (assuming, of course that all of the other requirements had also been met).

In this case the tenancy started in February 2017 but the landlord only provided the gas safety certificate, dated 31 January 2017, on 9 November 2017. It served a S21 notice on 1 May 2018.  The County Court dismissed the landlord’s claim for possession, on the basis of the decision in Caridon Property Ltd v Monty Shooltz.  The Landlord appealed.

The court analysed the provisions of:

• S21A Housing Act 1988 - which restricts the service of the S21 notice if certain requirements have not been complied with.
• Regulation 2 of the Assured Shorthold Tenancy Notices.
• Prescribed Requirements (England) Regulations 2015 - which confirms that the requirements in Regulation 36 (6) or (7) of the Gas Safety (Installation and Use) Regulations 1998 are one of the requirements to be complied with
• Regulation 36 of the Gas Safety (Installation and Use) Regulations 1998 - which imposes the obligation to provide a copy of the last gas safety record made to any new tenant of premises before that tenant occupies those premises.

Loophole closed

The court decided that there was no restriction on serving a S21 notice, if the gas safety certificate was given late to an existing tenant.  It considered the other sanctions for non-compliance with Regulation 36 (which are criminal in nature).

The court also considered the wording of the legislation, namely that a S21 notice cannot be given “at a time when the landlord is in breach of a prescribed requirement”, as suggesting that the breach could be remedied, inline with all of the other prescribed requirements, which are capable of being remedied.

This is welcome relief to landlords who have complied with their obligations to have a gas safety check carried out at their properties but who have failed to provide a copy to their tenants before they occupied the property.  This decision now means that they are not forever prevented, for this reason alone, in being able to serve a valid S21 notice.

If you need any specific help or advice on your position then please contact Sarah Barratt on 0191 211 7923 or email [email protected]