The Court of Appeal has recently given leeway to landlords in relation to s21 notices and gas safety certificates. As we are sure you are aware, residential landlords must comply with the Gas Safety (Installation and Use) Regulations 1998, which require an annual gas safety inspection. This must be provided to the tenant within 28 days of inspection. A current certificate must be given to any tenant before occupation commences.
Section 21 of the Housing Act 1988 is the no fault ground for possession by a landlord. The notice cannot be served if the landlord is in breach of a prescribed requirement – and it had been argued that a landlord could not seek to bring an assured shorthold tenany to an end if the gas safety certificate was not served on the tenant prior to occupation because this is a prescribed requirement.
In the case of Trecarrell House Ltd v Rouncefield, the landlord gave a copy of the gas certificate to the tenant after she had moved into the property. It was not given prior to her occupation. The Appeal Court held that this was not fatal to the landlord’s s21 notice.
The Court decided that provided the landlord had given the tenant a copy of a gas safety certificate that was in force before the tenant occupied the property, then an s21 notice could be validly served.
Do remember though the requirement that, as a landlord, you also need to serve, within 28 days of carrying them out, any further certificate relating to a subsequent gas inspection, not just the first one in place at the time the tenancy started
If you have a legal issue concerning this or any other element of Landlord and Tenant Law, whether residential or commercial, why not contact one of Alexander JLO’s expert lawyers on 020 7537 7000 or peter@london-law.co.uk for a free, no obligation quotation and see what we can do for you?
This blog was prepared by Alexander JLO’s senior partner, Peter Johnson on the 14th July 2020 and is correct at the time of publication. With decades of experience in almost all areas of law, Peter is happy to assist with any legal issue that you have. His profile on the independent Review Solicitor website can be found Here
Hi
My agent Dexters seems that they did not include the gas certificate at time of the tenancy in 2019. I am trying to get my tenant out but their defence is that they did not get the gas certificate. What do I need to do?
Thank you for your interest in our blog.
In the Trecarrell House case the Court of Appeal ruled by a majority, in the landlord’s favour, that a failure by the landlord to provide the original Gas Safety Certificate is not fatal to a Section 21 Notice being served and subsequent possession proceedings being issued, provided that before the Section 21 Notice was served the Gas Safety Certificate was provided.
So the brief answer to your question will depend on whether or not there was a Certificate in place at all and, if it was, whether the Certificate was provided to the tenant by your agent, or by you, before the s21 notice was served.
If there was a certificate in place and which was served before the service of the section 21 notice, possession proceedings could be issued, provided that the remainder legislative requirements were adhered to, for example in relation to service of the How to Rent Booklet and Energy Performance Certificate protection of any deposit. In addition, it is important to ascertain the date the Section 21 Notice was served to ensure it is has not expired.
Alternatively, in the event the above steps were not taken, then it is likely that the tenant’s position is correct and that you may have a claim against your agents in professional negligence.
Obviously we would need to see all of the papers before we could fully advise and I’d be happy to look at the same should you wish to contact me at peter@london-law.co.uk
Peter Johnson
Senior Partner