Requirement For Gas Safety Certificates In Order To Serve S.21 Notices To Be Tested In The Supreme Court

Hello Investors,

Landlords will certainly be aware of the ever-increasing lengths they need to go to so they can keep up to date with the changing compliance landscape. Apart from keeping tenants safe and avoiding fines, a big reason it’s important to keep up to date is to do with the ability to serve a section 21 notice should it be required.

There is a long list of documents that landlords need to serve tenants when they move into a property and failure to do so generally means that a valid section 21 notice cannot be served. This can be a problem for landlords needing to regain possession of their property.

I have recently been reading about a very interesting case (Trecarrell House Limited v Rouncefield) that could change the landscape when it comes to gas safety certificates. The findings are, so far, positive news for investors who want to get things right but make a basic oversight and I’ve outlined more detail below.

This is because the court of appeal has confirmed that a landlord’s failure to provide a gas safety certificate prior to a tenant’s occupation does not prevent a landlord from serving a section 21 notice, as long as the relevant gas safety certificate has been given before service of the notice.

Whilst this decision has been reached by the Court of Appeal, the tenant has now escalated the case to the supreme court. The outcome of this could radically change investors’ views of the compliance landscape!

The Case

The case is relatively straightforward in that during February 2017, the tenant (Ms Rouncefield) took up an assured shorthold tenancy in Trecarrell House.

The hot water and central heating in her flat was supplied from a gas boiler elsewhere in the building and it was not until November 2017 that she was provided with a gas safety certificate dated 31st January 2017.

In May 2018, the landlord (Trecarrell House Limited) served Ms Rouncefield with a section 21 notice and possession proceedings followed.

Probably as to be expected, the tenant chose to defend the landlord’s claim because the failure to provide a valid gas safety certificate at the start of the tenancy meant that the section 21 notice was invalid. However, the District Judge dismissed Ms Rouncefield’s defence and granted the possession order.

Why was this? Well, the possession order was granted simply because the failure to provide a certificate prior to the tenancy commencing was not able to be remedied. In addition, you will note how there was a valid gas safety certificate; it had just not been provided at the time (probably because of the shared boiler situation).

The Appeal

Following the original possession hearing, Ms Rouncefield chose to appeal the decision with a new point, and this was how there had been a further gas safety check carried out on 2 February 2018 (incorrectly dated 3 April 2018) and she had not been provided with a gas safety certificate in respect of that test.

The tenant’s appeal included how the landlord’s failure to complete the test within the prescribed 12 months was further reason for the notice to be invalid. The court of appeal again dismissed Ms Rouncefield’s defence.

Outcome & Supreme Court

Well, this is certainly music to my ears! Genuine oversights to happen and it is so encouraging to see the courts acting in favour of the landlord for a change.

Yes, there are certainly rogue landlords who will tend to not supply the right documentation or keep their compliance up to date but it is pleasant to see that a genuine oversight can be remedied.

The story is not over… because the ever-determined Ms Rouncefield has now gone to the Supreme Court! Details of this are yet to be released, however, I struggle to foresee how (unless there is further significant evidence) the decision will be overturned.

There are two main points that I pull out of this case, and they are both good news for investors:

  1. Failing to provide a gas safety certificate before a tenant moves in can be remedied by providing a copy of the certificate which was in force before they moved in.
     
  2. If a landlord fails to carry out a gas safety check within the 12-month window, they can remedy this by providing a certificate when one has been completed.

Whilst this is the decision in this case, please don’t hear what I’m not saying, however. Had the landlord supplied the correct information at the right time, they would certainly have avoided the time, money and stress of this situation escalating.

It is so very important to always have your compliance right from the start and if you have any questions regarding buy-to-let compliance then I will be more than happy to book an initial call to help where I can. As usual, the best way to contact me is via LinkedIn.

Hasan

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