Gas Safety Certificates and Section 21 Notices

Failure to provide a gas safety certificate before the tenant takes up occupation does not permanently prevent a landlord from ever serving a section 21 notice. The long awaited decision of the Court of Appeal in the case of Trecarrell House Ltd v Rouncefield (2020) was published on 18 June 2020.

The facts of the case are as follows. A flat was let under a six month fixed term assured shorthold tenancy on 20 February 2017. Although there was a valid gas safety certificate dated 31 January 2017, no gas safety certificate was provided to the tenant or displayed before the start of the tenancy. A further certificate was produced on 2 February 2018 (2 days late). The landlord served a section 21 notice on the tenant on 1 May 2018.

At the first appeal, the County Court decided that the wording of section 21A Housing Act 1988 and Regulation 2 of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 meant that a landlord could never serve a section 21 notice where they had not either: provided the tenant with a valid gas safety record before they went into occupation, or, had displayed a copy of the record at the premises before the tenant went into occupation (if there were no gas appliance in the property).

The landlord appealed the County Court decision to the Court of Appeal.

The Court of Appeal held that as long as the gas safety certificate was provided to the tenant before the service of the section 21, the notice would be valid. It was also held that a landlord’s failure to carry out a gas safety check within 12 months of the last one does not mean that a landlord fails to comply with their obligation if the tenant is served with a copy of the certificate once the check has been carried out.

However, in this case there remains a dispute as to whether the landlord had served the certificate dated 2 February 2018 on the tenant before or after the service of the section 21 notice. This issue has therefore been returned to the County Court for determination. The Court of Appeal said that if it is found that the tenant was served with the certificate before the section 21 notice the claimant’s appeal must be allowed. However, if the tenant received it after service of the notice the appeal must be dismissed.

The case provides much needed clarification of legislation, specifically whether a section 21 notice is valid where a valid gas safety certificate was not served on a tenant before they took up occupation. Unfortunately, the case does not provide any guidance in cases where there was no valid certificate at the commencement of a tenancy, or during a period of the tenancy before a valid certificate and notice are served.

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.