Gas Safety Records and Section 21 Notices: An Update
The recent county court appeal ruling in Byrne v Harwood-Delgado found that where a landlord had failed to obtain a gas safety certificate before the tenant took up occupation under an AST, they will be unable to use the section 21 procedure for possession.
The leading case of Trecarrell House Ltd v Rouncefield [2020] concerned the late service of a gas safety record after the tenancy commenced. The Court of Appeal held that if the gas safety certificate was provided to the tenant before the section 21 notice, the notice would be valid.
However, the issue in Bryne v Harwood was whether the section 21 notice would be valid if there was no gas safety record until after the tenant moves in.
In the first instance, a possession order was granted on the rationale that the landlord should not be barred from obtaining an order for possession under section 21 if a gas safety certificate had been provided to the tenant after occupation but before the notice. However, permission to appeal was granted.
The tenant’s appeal to set aside the possession order was allowed. HHJ Bloom stated that pursuant to the regulations, landlords are obliged to provide the “last” record to a “new” tenant, so it can be concluded that the legislation intended for a gas safety certificate to exist when the tenant begins occupation.
It was held that a situation where the landlord has made a trivial error and failed to serve a document can be distinguished from a situation where the landlord has failed to obtain any safety checks which exist to ensure that properties are safe and provide the tenants with protection as regards their health and safety whilst in occupation. It was decided that the latter situation could not be remediable.
The case serves as an important reminder for landlords to obtain early legal advice before serving any notices or taking any action to terminate the tenancy.
For more information or advice on this or any other landlord/tenant disputes, please call us on 0800 118 1500 or email Katie Jones in our Dispute Resolution Team for find out how we can help you.