The Court of Appeal yesterday ruled that Section 21 notices issued by landlords are valid provided a gas safety certificate is issued before the notice is given to the tenant, not before a tenant moves into a property.
The case of Trecarrell v Rouncefield focussed on the relationship between Section 21 notices and gas safety certificates.
The landlord, Trecarrell House Limited, was initially granted an order to repossess the property using Section 21 powers, but the tenant successfully appealed on the grounds that they were not provided with a gas safety certificate before moving into the property.
However, the Court of Appeal ruled that failure to give the gas safety certificate before the tenant begins to occupy can be remedied by giving it at any time before service of a Section 21 notice.
The case itself was heard earlier this year and landlords in England and Wales have been waiting for the outcome of this important decision.
The judgment hinged on whether a landlord’s failure to provide a gas safety certificate before the tenant’s occupation is a breach of the prescribed requirements to serve a valid Section 21 notice under the Housing Act 1988.
This was a particularly important case as a mistake by a landlord or its agent would have consequences far greater than other breaches of legislation, which can be remedied or resolved in order to serve a fresh notice.
Without the ability to serve a section notice at any point in a tenancy the rights of landlords would be seriously curtailed and could prevent the use of possession of a property in future where the landlord has no other grounds to secure possession.
The leading ruling from Lord Justice Pattern, which will be welcomed by so many landlords, states: “Although the point is not straightforward, I am not therefore persuaded that for the purposes of Section 21 the obligation to provide the gas safety record to a new tenant prior to the tenant taking up occupation cannot be complied with by late delivery of the gas safety record.
“Late delivery of the document does provide the tenant with the information he needs. If a breach has the consequence for which Cherry contends then that must apply in every case of late delivery even if the delay is only minimal. This seems to me an unlikely result for Parliament to have intended particularly in the light of the express rejection of the 28 day deadline under paragraph (6)(a).
“Many ASTs are granted for fixed periods of one year or less so that in practice the landlord’s inability to rely upon section 21 will provide a strong incentive for the timely compliance with paragraph (6)(b).
“As a matter of construction, I, therefore, prefer the view that as a result of regulation 2(2) the time when the landlord “is in breach” of paragraph (6)(b) ends for the purposes of Section 21 once the gas safety record is provided.”
But landlords should ensure that all other requirements such as deposit protection, for instance, are fully compliant as they can affect the validity of a Section 21 notice.
Tony Kent, head of the property litigation team at Mackrell Solicitors, said: “For landlords, this decision comes as an enormous relief since the consequences of the ruling of the lower courts have seemed disproportionately severe for them, especially when there is a gas safety record in existence and the landlord or their agent had either forgotten to serve it or the tenant has denied receipt at the beginning of the tenancy.”
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