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Does failure to provide a Gas Safety Certificate prevent you from serving a section 21 notice?

The Court of Appeal has recently held that failure to provide a gas safety certificate prior to a tenant’s occupation does not prevent a landlord serving a section 21 notice, as long as the relevant certificate has been given before service of the section 21 notice.

The law surrounding the service of gas safety certificates had previously left no room for error but the Court of Appeal’s decision in Trecarrell House Ltd v Rouncefield [2020] has clarified the issue for landlords and tenants alike.

Under the Gas Safety (Installation and Use) Regulations 1998 (“the Regulations”), failure to supply a tenant with a copy of the gas safety certificate before they took up occupation is a breach that cannot later be rectified.

In addition to this, the previous Court of Appeal decision in Caridon Property Ltd v Monty Shooltz [2018] held that the previous gas safety certificate of a property will need to be served on a new tenant before the new tenancy commences and any failure to do this would mean that any subsequent section 21 notice would be invalid. This led to considerable panic and uncertainty amongst landlords.

Facts and Decision

In Trecarrell House Ltd v Rouncefield, the landlord granted a tenancy to the tenant in February 2017 but did not provide the tenant with the gas safety certificate (dated 31 January 2017) until November 2017.

In May 2018, the landlord served a section 21 notice and thereafter issued possession proceedings. The tenant defended the landlord’s claim for possession on the basis that the section 21 notice was invalid as it had failed to comply with the requirements of the Regulations.

On appeal, the Court of Appeal held that the Regulations should not be interpreted to mean that failure to serve a gas safety certificate on the tenant prior to occupation of the tenancy renders the landlord unable to bring the tenancy to an end using the section 21 procedure.

It was held that a section 21 notice could be served so long as the landlord had, at any time before the service of the section 21 notice, provided the tenant with a copy of the certificate that was in force before they entered into occupation and a copy of a further certificate that related to a further inspection while the tenant was in occupation.

What this means

Failure to provide a gas safety certificate prior to the tenant occupying the property is not fatal, provided that:

(1)        the landlord was in possession of a current gas safety certificate when the tenant entered into possession; and

(2)        it is served before the section 21 notice, together with any subsequent gas safety certificates.

This is welcome news for landlords, particularly in these unforgiving times. This will mean that the inability to provide gas safety certificates or carry out gas safety inspections during the pandemic will not be overly problematic and landlords will still be able to use the section 21 procedure to obtain possession.

If you are a landlord or a tenant and require any advice, then please contact Alexander Clarke in our Real Estate Disputes team on +44 7557 804715 or email at alexanderclarke@boltburdon.co.uk

You can also contact one of our other solicitors in the Real Estate Disputes team here.

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