Back in June 2020 the Court of Appeal ruled two-to-one that late serving of a gas safety certificate does not prevent a landlord from serving a Section 21 notice provided the certificate has been given to the tenant before the notice was served.
The tenant tried to overturn the Court of Appeal’s decision in the Supreme Court but this was rejected on the basis that the application does not raise a point of general public importance.
An analysis by Anthony Gold Solicitors says the Supreme Court judges made their decision on the basis of written submissions from both parties’ lawyers - standard practice for applications for permission to appeal to the Supreme Court.
The landlord’s successful case was supported by the National Residential Landlords Association.
Senior associate solicitor at Anthony Gold, Sarah Cummins - who acted for the landlord - says: “The Court’s decision will be welcomed by private sector landlords who feared that a failure to provide the gas safety certificate before occupation permanently prevented them from recovering possession of their properties.
“It has been nearly two years since the Court of Appeal’s judgment and the Supreme Court’s decision to refuse to hear the tenant’s appeal now brings some certainty to this difficult area of law.
“There is no requirement for the Supreme Court to explain its reasons, but it may be that the promised abolition of section 21 notices played some role in the court’s decision to refuse permission to appeal.”
Cummins says the Supreme Court’s decision means that the interpretation of the law accepted by Court of Appeal’s in June 2020 remains binding on District Judges who deal with possession claims.
Therefore where a landlord has failed to provide a new tenant with the last gas safety certificate before occupation they are able to remedy this by providing the certificate late.
It removes the fear that mistakes in providing tenants with certificates could result in them permanently losing the ability to serve a section 21 notice.
Furthermore, a failure to complete a subsequent annual check on time will not bar the landlord from serving a Section 21 notice provided the certificate is given to the tenant prior to serving the notice.
However, the legal firm cautions that there are still difficult questions left unresolved. For example, what does this mean for a landlord who has failed to carry out a gas safety check at all before the tenant goes into occupation? Are they able to rectify this breach and serve a valid s21 notice?
While the Court of Appeal determined that late provision of the initial gas safety certificate is remediable, it did not go so far as to say that all historic gas safety breaches, including failing to actually have a certificate before the commencement of the tenancy, are capable of remedy.
In addition, the gas safety regulations only require landlords to retain the gas safety certificate for two years from the date of the check which means even where a check has been carried out before the start of the tenancy, landlords may face difficulties remedying the breach later or proving that they have done so.
Senior associate solicitor at Anthony Gold, Robin Stewart, comments: “The Supreme Court’s decision not to allow a further appeal marks the end of one chapter of litigation concerning section 21 notices and gas safety certificates, but this issue is not going away.
“Trecarrell will not be the last case to address these issues because there is still significant uncertainty about how to interpret some aspects of the law concerning Section 21 notices.”
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