Patten, King, Moylan LJJ
In a judgment handed down on 18 June 2020 the Court of Appeal concluded that the failure to provide a gas safety certificate prior to a tenants occupation does not prevent a landlord serving a s.21 notice as long as the relevant certificate has been given before service of the notice.
The Gas Safety (Installation and Use) Regulations 1998 impose various obligations on residential landlords. These include a requirement to carry out an annual gas safety inspection (reg.36(3)); to give a tenant a copy of a gas safety certificate within 28 days of any such inspection (reg.36(6)(a)); and, to give the current certificate to any tenant prior to occupation (reg.36(6)(b)).
Section 21, Housing Act 1988 creates a “no fault / notice only” ground for possession against an assured shorthold tenant. A notice may not be given at a time when a landlord is in breach of a prescribed requirement (s.21A, 1988 Act). The prescribed requirements include reg.36(6) of the Gas Safety (Installation and Use) Regulations 1998, save that “… the requirement… is limited to the requirement on a landlord to give a copy of the relevant record to the tenant and the 28 day period for compliance with that requirement does not apply” (reg.2(2), Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015).
In February 2017, Ms Rouncefield became the assured shorthold tenant of a flat of which Trecarrell House Limited was her landlord. The landlord did not give her a gas safety certificate before she entered into occupation but, in November 2017, provided her with a copy of a certificate dated January 2017.
In May 2018, the landlord served notice under s.21, Housing Act 1988 and issued possession proceedings. The tenant defended the claim on the basis that because no gas safety certificate had been provided prior to her taking occupation, the landlord was not entitled to serve notice under s.21. The Deputy District Judge dismissed the defence and granted a possession order.
On appeal, the Circuit Judge held that a failure to provide a gas safety certificate before the tenancy commenced was not capable of being remedied and granted the tenant’s appeal against a possession order. The Court of Appeal granted permission to appeal. The tenant served a Respondents’ Notice taking a new factual point. It was said that there had been a further gas safety check carried out in February 2018 and that no gas safety certificate had been provided in respect of that test; the failure to do so was said to amount to a breach of a prescribed requirement and so to provide a further reason why the s.21 notice was invalid. The landlord contended that the certificate had been given before the s.21 notice was served.
By a majority, the Court of Appeal held that the correct construction of s.21A and the 2015 Regulations was that the time period for compliance with both reg.36(6)(a) and (b) was disapplied. Thus, a s.21 notice could be given so long as the landlord had – at any time before service of the s.21 notice – given the tenant a copy of the certificate that was in force before they entered into occupation and a copy of any further certificate that related to a subsequent inspection. It was therefore immaterial that the January 2017 certificate had not been given to the tenant until November 2017. There was, however, a factual dispute as to whether the 2018 certificate had been provided and that was remitted for consideration by the county court.
In simple terms, this is good news for landlords. A failure to provide the original gas safety certificate prior to the tenant going into occupation is not fatal to a s.21 claim so long as it is provided before the s.21 notice is served. Likewise, the failure to carry out the annual inspection in time is not fatal so long as it too is given before the s.21 notice is served. Given the huge number of gas safety inspections that have been missed as a result of the current public health crisis, that is likely to come as a sharp relief.
There are, however, two difficult questions which are left open by the judgment. The first is what the position is if the landlord has not done a gas safety check (and so does not have a gas safety certificate) for the period before the tenant went into occupation. How (if at all) can that be remedied?
The second is similar. What happens if the landlord fails to do the annual gas safety inspection so that there is no certificate to provide? This is probably less important. There is recognition in the judgment that the duty to do an annual safety inspection (reg.36(3)) is not a prescribed requirement for the purposes of s.21A, 1988 Act. There is, however, something rather unattractive about a landlord seeking possession in circumstances where he has unlawfully failed to do a check (and thus provide a certificate) and whether that amounts to (impermissibly) relying on your own wrongdoing.