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Landmark ruling on Section 21 validity and gas safety certificates

In a judgment handed down on 18 June 2020 the Court of Appeal concluded that the failure to provide a gas safety certificate prior to a tenants occupation does not prevent a landlord serving a S.21 notice as long as the relevant certificate has been given before service of the notice.

This is great news for landlords.

The Law

The Gas Safety (Installation and Use) Regulations 1998 impose various obligations on residential landlords. These include a requirement to carry out an annual gas safety inspection (reg.36(3)); to give a tenant a copy of a gas safety certificate within 28 days of any such inspection (reg.36(6)(a)); and, to give the current certificate to any tenant prior to occupation (reg.36(6)(b)).

Under Section 21, of the Housing Act 1988 , landlords can serve a possession notice against an assured shorthold tenant. Crucially, a notice may not be given at a time when a landlord is in breach of a prescribed requirement (s.21A, 1988 Act).

The Problem for Landlords

Therefore, it has been the case that under the previous interpretations of this law, that landlords could not serve a valid Section 21 unless it could be proved that a valid Gas Safety Certificate was given to the tenant prior to the tenancy commencing. As this requirement could seemingly not be retrospectively remmedied, a landlord that had failed to serve the Gas Safety Certificate as required would inadvertently become unable to regain posession of their property, regardless of whether there was a valid certificate in place or not.

New Case Law

The case of Trecarrel v. Roucefield is therefore one of the most significant cases for landlords this year. The Court held that failure to serve the Gas Safety Certificate on tenants before they move in is not fatal to a subsequent claim for possession under section 21.

The Court of Appeal rexamined a case where a landlord was trying to gain posession of a property where a Gas Safety Certificate had not been served on the tenant prior to occupation. The Judge had followed an earlier case which held that a landlord could not gain posession under such circumstances. The Court of Appeal then reversed that decision, holding that landlords could serve a valid section 21 notice so long as the gas safety certificate has been served first. So it did not have to be served before the tenants first moved in.

Likewise, the failure to carry out the annual inspection in time is not fatal so long as it too is given before the s.21 notice is served. Given the huge number of gas safety inspections that have been missed as a result of the lockdown and COVID restrictions, that is likely to come as a sharp relief to many.

Implications

This case is really great news for landlords who might, through a simple administrative oversight, had otherwise been prevented from gaining posession of their property under a Section 21. However, it does not address what would happen if there was no valid Gas Safety Certificate in place at the time the tenancy commenced.

It therefore remains very important to ensure there is a current Gas Safety Certificate in place at the begining of a tenancy and that it is served upon the tenant with proof of service recorded and retained for at least the duration of the tenancy.

At Webb & James we ensure that our landlords meet all their obligations under The Gas Safety (Installation and Use) Regulations 1998 as part of our Tenant Find and Tenany Set-Up Service. Please get in touch if you have any questions or would like us to arrange a Gas Safety Cerfificate for your property.

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