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22nd June 2020

Trecarrell House Ltd v Rouncefield [2020] EWCA Civ.

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A failure of a landlord to provide a Gas Safety Certificate to a residential tenant prior to the tenant’s occupation of premises, does not preclude a landlord from relying on section 21 of the Housing Act 1988, the ‘no fault ground’, to recover possession of those premises provided it was given before serving the Section 21 notice.  The Deregulation Act 2015 (DA 2015) introduced new rules in relation to the way in which Assured Shorthold Tenancies (AST) in England can be brought to an end and a landlord's ability to rely on the ‘no fault ground’ under Section 21.

Since 1 October 2018, the DA 2015 provisions have applied to all ASTs, regardless of when the relevant tenancy was granted.

The DA 2015 provisions relate to several key areas, which are:

• Gas Safety Certificates and Energy Performance Certificates – to be supplied by the landlord (free of charge) and given to the tenant.
• Prescribed information – information that the landlord is required to give to the tenant (i.e. MHCLG: How to rent: The checklist for renting in England).
• Tenancy Deposit Schemes - requiring the landlord to register a tenant’s deposit with a deposit protection scheme and to provide to the tenant prescribed information relating to the deposit and how it is held.
• Protection against retaliatory eviction - to prevent a landlord from evicting a tenant in retaliation for the tenant making a complaint about the condition of their rented property.

Since the 1 October 2018 a landlord cannot serve a Section 21 notice unless they have provided the tenant with an Energy Performance Certificate (EPC) and a Gas Safety Certificate (if one is required). However, until recently, the relevant regulations that prohibited a landlord from serving a Section 21 notice while in default, were interpreted in such a way as to allow a landlord to remedy the breach, and thus lifting the restriction, by simply giving the tenant an EPC or a Gas Safety Certificate at any time before the service of the Section 21 notice.

While the requirement to give an EPC is a continuing one and therefore, it can be satisfied at any time before the service of a Section 21 notice, the law in relation to Gas Safety Certificates was thrown into doubt by the 2018 case of Caridon Property Limited v Shooltz [2018] 2 WLUK 712. In this case HHJ Luba QC held that the requirement for a landlord to provide a tenant with a Gas Safety Certificate before that tenant occupies the relevant premises is a “one and for all” obligation. It cannot be cured by the late provision of the certificate.

The ruling in Caridon received judicial support at first hearing of the case of Trecarrell House Limited v Rouncefield 13 February 2019. In this case HHJ Carr reached the same conclusion as the one reached in Caridon. He too emphasised the importance of ensuring that tenants receive assurances that premises are safe before they move in.

However, the landlord, Trecarrell House Limited, appealed against the decision of the lower court that its late compliance in providing the Gas Safety Certificate precluded it from relying on the Section 21 notice served on the respondent, Ms Rouncefield. It is this binding decision of the Court of Appeal, that has been hotly awaited by landlords and property lawyers alike.

The Judgment

The Court of Appeal held by a majority, in their judgment handed down on the 18 June 2020, that where a landlord had failed to provide a tenant with a Gas Safety Certificate before their occupation of the premises had begun, a Section 21 notice could still be relied on, so long as the landlord had given the tenant a copy of the certificate that was in force before they entered into occupation, and a copy of any further certificates relating to subsequent inspections, before serving the Section 21 notice.

However, the case has not answered the question of whether a landlord is precluded from relying on a Section 21 notice where a landlord cannot show that a gas safety check was carried before the occupation of the premises commenced, but can show that subsequent inspections have been carried out. This can present practical difficulties if the tenancy started a number of years ago before the DA 2015 came into force and the landlord has not retained the relevant certificate, not knowing it would be required when they did seek to give a Section 21 notice. Landlords should ensure that they retain copies of all Gas Safety Certificates and evidence that these, together with the EPC, the “how to rent” guide and any required information in relation to the deposit, were provided to the tenant.

For more information on any of the items discussed in this article please contact Christian Firmin on 01223 532768 or click here to email Christian.