For landlords, ensuring that their property is gas safe is vitally important for many reasons. It is particularly important for Landlords to be able to show that their property is and has been compliant throughout a tenants period of occupation should they wish to serve a Section 21 eviction notice to take back possession of a property on no-fault grounds.
In this article, we’ll look at a trio of cases that highlight the main issues, and assess what lessons we can learn from them.
What is a Section 21 Notice
A section 21 notice is one which seeks possession of a property and gives a landlord the right to evict a tenant in the following circumstances:
- After the end of a fixed-term tenancy if a written contract exists
- At any time during a tenancy with no fixed end date – normally referred to as a ‘periodic’ tenancy
Section 21 notices apply in the case of assured shorthold tenancies (AST), which generally refers to the majority of new residential tenancies at the present time. There are however some instances where Section 21 notices cannot be served, some of which are set out below; It is less than 4 months since the tenancy started, or the fixed-term hasn’t ended, unless the tenancy agreement contains a clause allowing eviction in these circumstances;
- The property in question is categorised as a house in multiple occupation (HMO), but doesn’t not have a council-issued HMO licence
- The tenancy started after April 2007 and the landlord has not placed the tenant’s deposit in a deposit protection scheme within the relevant time frame
- The landlord fails to serve the notice using form 6a
- The council has served an improvement notice on the property in the last 6 months
- The council has served a notice in the last 6 months stating that it will carry out emergency works on the property
- The landlord has failed to repay any unlawful fees or deposits charged to the tenant
- The landlord has failed to prove the tenant with copies of the property’s Energy Performance Certificate, the government’s ‘How to rent’ guide and a current Gas Safety Certificate (if the property has gas installed)
As far as the last of these rules is concerned, the ‘How to Rent’ guide, Energy Performance Certificate, and Gas Safety Certificate need to have been given to the tenant before they move into the property and a failure to do so could result in the tenant successfully defending a claim brought in reliance of the Section 21 notice served by a landlord.
Caridon Property Ltd v Monty Shooltz
The first case of note was that of Caridon Property Ltd v Monty Shooltz, which was heard on appeal in February 2018. Here, the landlord had issued a Section 21 notice to the tenant (Mr Shooltz) and, upon expiry of the Section 21 notice had issued possession proceedings through the courts.
In deciding whether the possession claim was valid the judge found that, because a Gas Safety Certificate was only provided to Mr Shooltz 11 months after the tenancy commenced, the regulations had not been complied with and the Section 21 notice was rendered invalid.
. The landlords appealed this decision and the appeal was heard in front of His Honour Judge Jan Luba QC, who had been one of the UKs leading housing barristers before becoming a judge. Judge Luba upheld the original decision, stating that:
- Section 36(6)(b) of the Gas Safety Regulations must be compiled with at the start of the tenancy and this was a ‘once and for all’ chance for the landlord to do the right thing and provide the tenant with a copy of the latest Gas Safety Certificate
- Interpreting the Assured Shorthold Tenancy regulations in any other way could potentially give a green light to landlords to let premises which were dangerous and hadn’t been gas safety checked, and that the regulations had been put in place to protect tenants
Many housing experts at the time of this decision expressed the view that the interpretation of the law by the appeal court had been unfairly draconian, in creating a ‘once and once only’ opportunity for the landlord to comply with the regulations.
Although, as a County Court decision, the ruling was in no way binding, it was felt that the track record of the Judge – in particular their role as co-author of “Defending Possession Proceedings”, generally regarded as the textbook of choice for housing lawyers– meant that the decisions made in Caridon Property Ltd v Monty Shooltz represented the correct interpretation of the law.
Trecarrell House Limited v Patricia Rouncefield
Some relief was however provided for worried landlords in the case of Trecarrell House Limited v Patricia Rouncefield, which took place in 2020.
The facts of this case are that Ms Rouncefield took up an Assured Shorthold Tenancy in a property owned by Trecarrell House Limited on 20 February 2017. The flat in question featured central heating and hot water provided by a gas boiler located elsewhere in the property, but no gas pipes or appliances were located within the flat.
Ms Rouncefield was not given a copy of a Gas Safety Certificate before moving into the flat, and nor was a copy displayed in a prominent position. She was, however, given the Gas Safety Certificate – dated 31st January 2017 – in November 2017, nine months after moving in.
At a later date, a Section 21 notice was served and a claim for possession issued through the courts. Ms Rouncefield defended the claim on the grounds that she hadn’t been given a copy of the Gas Safety Certificate before moving into the property, and that this meant Trecarrell was prohibited from serving a Section 21 notice.
The County Court rejected this argument, but Ms Rouncefield successfully appealed. Trecarrell then took the case to the Court of Appeal.
In the Court of Appeal, Trecarrell argued that the 2015 Regulations only placed an obligation on landlords to provide a Gas Safety Certificate to tenants, and not that they must do so before the tenant moved into the property.
The Court found that a landlord who has failed to provide his tenant with a gas safety certificate before the tenant moves into the property is not prevented from using section 21 of the Housing Act 1988 (HA 1988) to recover possession, so long as he provides a copy of the Gas Safety Certificate before service of the notice.
The situation following this case, then, was that failure to provide a copy of the Gas Safety Certificate to a tenant before they move into the property was not, in and of itself, sufficient to prevent a Section 21 notice being served and upheld, so long as the Landlord provides the tenant with a copy of the Gas Safety Certificate prior to serving the Section 21 notice.
Byrne v Harwood-Delgado
This brings us to the third case under consideration, that of Byrne v Harwood-Delgado, which was decided in June 2022. In this particular case, the Court had to decide whether a Landlord who had failed to obtain a Gas Safety Certificate prior to a tenant taking up occupation of a property (as opposed to having a Certificate in place but failing to provide a copy to the tenant) could remedy this retrospectively by obtaining a Gas Safety Certificate after a tenant has moved in, and subsequently whether this would invalidate a Section 21 claim.
In Byrne v Harwood-Delgado, the tenant, Mr Harwood-Delgado moved into the property in August 2019 and was provided with a copy of the Gas Safety Certificate in November 2019. Crucially, the Certificate was dated September 2019, i.e. after the tenant moved into the property.
In October 2020 another annual Gas Safety Certificate was provided and in November 2021 the landlord served a Section 21 notice.
As in the case of Trecarrell House Limited v Patricia Rouncefield, the tenant argued that the landlord could not serve a Section 21 notice due to the failure to provide a Certificate when the tenancy commenced. The County Court dismissed this argument and made a possession order, judging, in line with the Trecarrell House case, that providing a copy of the Certificate late was not in itself a bar to serving a Section 21 notice.
The tenant appealed this decision and, on appeal, the court found that there were differences between this case and Trecarrell House Limited v Patricia Rouncefield. In the Trecarrell House case the landlord had in fact obtained a Gas Safety certificate prior to the tenant taking up occupation but had simply failed to provide a copy to the tenant at the right time, an oversight which could be remedied by providing a copy at a later date.
In the case of Byrne v Harwood-Delgado, on the other hand, the Landlord had failed to obtain a valid Gas Safety Certificate by the date occupation commenced, meaning that the landlord couldn’t reasonably know that on the date on which the tenant moved into the property, the property, and the tenant were safe.
This failure gets to the heart of the reason the Gas Safety Regulations were created, and why the bar to serving a Section 21 notice was introduced as a deterrent to such an oversight.
The Court therefore found in favour of the tenant in this case, meaning that a failure to obtain a gas safety certificate prior to a tenant occupying the relevant property will prevent that landlord from being able to serve a Section 21 notice to terminate the tenancy in perpetuity. In such a case a shorthold tenancy would become an assured tenancy, and the landlord would only be able to seek possession on fault-based grounds.
Conclusion
Both the Trecarrell and Byrne cases represent a correct and proportionate interpretation of the regulations currently in place.
What this means for any landlord wishing to retain the right to serve a Section 21 notice is that any property they are thinking of marketing must, prior to this, have the relevant certification in place, that a copy of the Gas Safety Certificate should be left on display in the property and, to make absolutely certain of demonstrable compliance with the regulations, a further copy should be given to the tenant and signed by them when they sign the tenancy agreement (prior to moving into the property).
Landlords should also ensure that a Gas Safety Inspection takes place 11 months later i.e. before expiry of the original certificate, that a copy of the Certificate given to the tenant, and that a record is kept of when the tenant was provided with a copy of the Certificate.
These laws are in place to ensure the safety of tenants in rented property, and whilst they have remained open to legal interpretation in some respects, this fact holds true and landlords need to act accordingly to ensure their rights, and those of their tenants are unaffected.
Should you require any support in matters surrounding this topic or any other property disputes, please do not hesitate to contact us for an impartial consultation.
