Tenant evictions and gas safety certificate warning for landlords

Landlords are breathing a sigh of relief over the news that a Court has allowed an eviction notice despite a copy of the gas safety certificate not being provided before the tenancy started.  Mollie Leak, Litigation and Dispute Resolution Solicitor, here reviews the particular details of this case and warns that attention to the small print is essential if landlords are to avoid problems in future when they are looking to regain possession under the Section 21 procedure. 

What is the Section 21 notice?

Section 21 of the Housing Act 1988 provides landlords with a route to possession against an Assured Shorthold Tenant for any reason, not just when a tenant has defaulted or otherwise breached their tenancy.  A Section 21 notice however cannot be served on a tenant if the landlord is in breach of a prescribed requirement, which includes giving tenants a copy of:

• an up to date gas safety certificate;
• the Energy Performance Certificate (EPC);
• the current version of the authorised ‘How to Rent’ booklet; and 
• relevant information about the Deposit Protection Scheme.

Importance of the gas safety certificate

In this case, Trecarrell House Limited v Rouncefield [2020], the landlord had a valid gas safety certificate in place but failed to provide a copy when the tenancy commenced in February 2017.   When he then served a Section 21 notice in May 2018, the tenant refused to move out and the landlord’s claim for possession was heard in the County Court.  Initially, the landlord was successful in obtaining the order for possession, but the tenant successfully appealed on the grounds that they had not received a gas safety certificate before moving in.

This was in line with an earlier case involving a similar situation, Caridon Property Ltd v Monty Schooltz, which previously ruled that a landlord’s failure to provide the gas safety certificate before the tenant occupied the property was a breach that could not be rectified later.

However, when the landlord in the Trecarrell House case was given permission to appeal, the Court of Appeal ruled by a majority in his favour, meaning that as long as a gas safety certificate was in force before a tenant occupied the property, and that certificate together with those for any subsequent period were provided before a Section 21 was issued, then that will be acceptable. 

The Court of Appeal also considered whether a failure to carry out a gas safety inspection within the time limit required by gas safety regulations could invalidate a Section 21 notice.  They concluded that a landlord could still serve a valid Section 21 notice even where a gas safety inspection has been undertaken late, as long as a copy was provided before serving the Section 21 notice, and as long as other prescribed requirements had been satisfied.   

This will be welcome news to landlords, as it allows for administrative errors to be rectified and Section 21 notices to be served.  Mollie advises however that it should not be interpreted as any lessening of the prescribed requirements, and it’s still important to follow good practice procedures as closely as possible.  An administrative error of failing to provide a copy of a valid gas safety certificate at the start of the tenancy is one thing but failing to have a valid safety inspection in place is quite another.  Similarly, a delay on undertaking a subsequent inspection at the right time may be acceptable, particularly where tradesmen have not been able to visit premises during lockdown, but the judgment is not a licence to abandon such responsibilities.  All tenants should receive the right documentation when the tenancy has been agreed, and before they move in, if landlords wish to avoid such challenges in a situation where they may need to regain possession of a property.

If you are a landlord with questions regarding when you can serve a Section 21 notice, or you need advice on evicting a tenant, you can contact Mollie or a member of the team on 023 8071 7487 or email mollieleak@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.