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TODAY'S OTHER NEWS

Court of Appeal sides with landlords in landmark case ruling

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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    Surely all good landlords should provide evidence of gas safety certificates, environmental certificates, soon-to-come-in electricity safety certificates, statement of which deposit holding company the deposit will be lodged in before tenants sign on the dotted line of the tenancy agreement - it's just good practice.

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    Yes they should, but everyone makes mistakes.

     
    Bill Wood

    Yes, but landlords are human.
    A simple technical oversight, (as opposed to a blatant disregard), should not be used as a tool to stop an S21.

     
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    Totally agree. I am sure the legislation was set up to protect the safety of tenants so the emphasis should be on whether a gas test certificate is in place at the start of the tenancy.

  • Mark Wilson

    I am sure every reader on this site is smart enough to let a flat in a fully compliant manner.

    However, if one scratched the surface, i am pretty sure that many landlords and their agents slip up some where dealing with a process that is absurdly complex.

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    I think it’s reasonable and right that the gas cert is served at the beginning of the tenancy. Then there is no ambiguity later on re the gas being safe. However it is clear to see that this is a manipulation to use the law to tenants advantage. Why would a tenant when served with a sec 21 want to stay in a property that hasn’t got a gas safe cert? If the gov and agitator groups were really that bothered about tenant safety then all adjoining properties would need the same test. This goes for electrical as well

    Suzy OShea

    Jahan Khan,

    Re adjacent properties requiring the same safety tests: you can't demand this if neighbouring properties are private homes.!

     
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    Hi Suzy OShea Im already aware of this

     
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    Have it written into the tenancy agreement.
    "By signing this agreement,you the tenant(s) agree that you have been supplied with a copy of this agreement,along with the Deposit certificate,gas certificate,how to rent information,plus new electrical cert.
    etc etc just add what you want. Simples
    This also acts as a check list for the landlord. It all common sense.

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    We do this. There is more paperwork generated for a rental than for a purchase of a property

     
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    I wonder how many of us landlords forget to give the CURRENT governments how to rent booklet. I doubt this can be remedied in arrears. Make sure you give the latest copy!

    Paul Barrett

    There is NO requirement to give the latest

    How to Rent

    booklet to tenants.
    A new tenancy NOT a renewed one does require the latest HTR booklet.
    This is basic landlording stuff

     
  • Matthew Payne

    If you combine all in an email or Docusign at the start of the tenancy in one delivery its the easy way to show you are organised, know what you are doing and are covered. ie EPC, How to Rent, Prescribed Info, TDSE or equivalent, Deposit certificate, gas cert, elec cert if they happen. Authorities/HMRC/TSO etc are as interested in process as they are in complete compliance. People make mistakes, they just want to be reassured you know you made a silly mistake as opposed to just winging it, or trying to cut corners. Ive seen many many cases, where if agents and landlords demonstrate understanding and process, but acknowledge a small error has happened nonetheless, they are quite lenient. Court hearings always start by stating that consider the facts but are also looking at what is reasonable to expect.

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    On the signing page of my ASTs I have a section for both agent/LL and tenant to initial saying the relevant documents or testing (smoke alarms) has been completed

     
    Matthew Payne

    I would recommend listing them though if you dont already, as relevant is open to interpretation and a tenant could argue they didnt know what documents should have been provided in the first place, so wouldnt know what was missing.

     
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    Yes its all so simple for mostly Asian digital Academics making all the rules running the Uk administration mainly, but never actually doing any work themselves if you keep us tied to the desk how can the property be compliant, maybe the property fixes it self, sorry but I don't have anymore free unpaid time left in my life.

  • Ingrid Mott

    Absurd that the conroversy was over Gas Safe. Surely How To Rent is the one that could be waived on commencement of the tenancy. No-one will die if that one is late. Buffoons are controlling our business.

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    Incredible that the gas safety check was done and the tenant merely stalling for time.
    The court should get the tenant to pay all court cost just a simple email to the landlord for a copy of the certificate was only needed.
    Best interest for LLS to send all relevant documents ON a email electrical certificate water test, insurance, energy efficiency test ,gas check just to cover yourself in future

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    lawyers should be banned from hoc

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