Judgment was handed down on 18 June in the long-awaited Court of Appeal case of Trecarrell House Limited v Patricia Rouncefield  EWCA Civ 760. The decision, which clarifies the position with regard to the provision of gas safety certificates, will be welcomed by landlords.
Ms Rouncefield was a tenant occupying a flat in Cornwall under an assured shorthold tenancy granted in 2017. The flat contained no gas appliances itself, but the hot water supply was powered by a gas boiler located elsewhere in the building. Accordingly, the landlord ought to have provided a copy of the gas safety record (or displayed a copy in the building) to Ms Rouncefield under the Gas Safety (Installation and Use) Regulations 1998 (the “Gas Safety Regulations”).
Failure to comply with the Gas Safety Regulations can attract criminal liability on the part of the landlord. In addition, since 1 October 2015, failure to provide a gas safety certificate to a tenant or prospective tenant also prevents landlords from serving a section 21 notice to recover possession of the property.
When Trecarrell served a section 21 notice on Ms Rouncefield, she argued that Trecarrell could not rely on the notice because the landlord had failed to provide or display the gas safety record prior to her taking occupation of the flat. This argument stems from the precise wording of the Gas Safety Regulations, which state that a prospective tenant must be provided with a gas safety certificate ‘before that tenant occupies those premises’ (regulation 36(6)(b) Gas Safety Regulations).
Decisions in the Lower Courts
At first instance, the landlord was successful in obtaining an order for possession. However, on appeal the County Court agreed with Ms Rouncefield. HHJ Carr decided that as the wording stated that the certificate must be provided ‘before’ the tenant occupied the premises, the late provision of the certificate could not remedy the breach. Ultimately, the effect of that interpretation would be to prevent a landlord from ever using the section 21 procedure where it had failed provide a gas safety certificate before the tenant goes into occupation.
The Court of Appeal
By a majority of 2 – 1, the Court of Appeal reversed the decision of HHJ Carr, finding in favour of the landlord. The majority view was that Parliament’s intention had not been to forever bar landlords from serving a section 21 notice where a gas safety certificate had not been provided. Rather, they found that the requirement was for a certificate to be provided, regardless of the timing, prior to the service of a section 21 notice.
They were persuaded that the other, more serious sanctions for failing to comply with the Gas Safety Regulations were intended to be the main protection for tenants and that the restrictions on serving a section 21 notice were a secondary incentive for landlords to comply.
In his dissenting judgment Lord Justice Moylan was unable to agree with the other judges’ interpretation. In his view, service of the certificate after a tenant had taken occupation was a breach that could not be remedied and would prevent the landlord from using the section 21 procedure. In his opinion there was no reason to depart from the plain wording of the various regulations which, taken together, would prevent the use of section 21 in those circumstances.
While it is not a unanimous judgment, the case is important authority on an issue that was of significant concern to landlords. Although the decision will be welcomed, landlords must keep in mind that there are other sanctions for failing to comply with the Gas Safety Regulations, as well as the potential risks to tenants’ health and wellbeing if gas appliances are not properly maintained.
There are also numerous other regulations and restrictions on the service of section 21 notices, as the Government has increased the set of requirements that must be met prior to service in recent years. Though it will no doubt be a relief for landlords that they can now remedy any breaches that may have occurred in order to serve a section 21 notice, it is important for landlords to take advice on the service of section 21 notices to ensure that they have met the requirements and will be able to rely on the notice in Court should they need to.
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