Trecarrell House Ltd v Rouncefield – a rare victory for landlords

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On 18 June 2020, the Court of Appeal handed down a long-awaited judgment in the case of Trecarrell House Ltd v Rouncefield. The Appeal sought to clarify whether a landlord could serve a valid s21 notice under the Housing Act 1988 when a gas certificate had not been provided before the tenant moved into the property.

The need to serve the gas certificate along with the EPC and, in the case of private landlords, the latest version of the Government’s “How to Rent Guide”, prior to the service of a s21 notice stems from the Deregulation Act 2015 and its associated Regulations, the Assured Shorthold notices and Prescribed Requirements (England) Regulations 2015.

Following the commencement of the Deregulation Act and its Regulations, there had been a widely held belief that to serve a valid s21 it was sufficient, if not ideal, to serve the gas certificate, along with the EPC and if appropriate, the How to Rent Guide just before serving the s21. However an earlier decision by HHJ Luba sitting in the Central London County Court in the case of Caridon Property Ltd v Monty Shooltz had found that the gas certificate needed to be served before the tenant moved into the property causing considerable difficulties for landlords who had failed to do so, or who were unable to prove that they had done so.

County Court decisions are only persuasive rather than binding but, in this instance, nearly all judges chose to follow the decision in Shooltz. Numerous defences were based upon it and landlords who chose to issue without having served the gas certificate prior to their tenant’s occupation commencing ran a very considerable risk of their claim for possession failing. The decision rendered many landlords unable to seek possession under s21 of the Housing Act 1988.

The opportunity to report good news for landlords is rare but, on this occasion, the Court of Appeal has decided that it is sufficient for the gas certificate, in common with the EPC (and in the case of private landlords The  How to Rent Guide) to be served before the s21. There is no requirement for the gas certificate to be served prior to the tenant’s occupation commencing although there does, of course, need to be a current gas certificate in place.

Perhaps on a less positive note, the s21 possession procedure continues to become increasingly complicated and time consuming. The latest version of Form N5 (the Court form required to launch a claim for possession) is now some 18 pages long and requires copious amounts of information and numerous attachments, including copies of every gas certificate relevant to the tenancy along with their dates of service. This is despite their being no legal requirement to produce these to claim possession.

Claimants are also required to provide copies of all tenancy agreements (not just the first and last as was previously the case). The claim form has also been updated to require the landlord to confirm that no prohibited payments have been taken under the Tenant Fees Act and that no notices in relation to the condition of the property have been served by the Local Authority.