Landmark ruling clarifies no-fault eviction position on gas safety certificates for landlords across the country, says Mackrell.Solicitors

Posted on Thursday June 18, 2020

Tony Kent

The Court of Appeal ruling in the case of Trecarrell House Limited v Rouncefield has resolved a serious issue of great importance to possession claims, according to London law firm Mackrell.Solicitors.

In its latest ruling, the Court has confirmed that landlords can evict a tenant by a section 21 notice even if they haven’t provided an up to date Gas Safety Record (GSR) at the beginning of the tenancy.

The majority of the Court held that in respect of the ability to rely on a s.21 notice, failure to give the GSR before the tenant begins to occupy can be remedied by giving it at any time before service of a s.21 notice.

The case itself was heard earlier this year and landlords in England and Wales have been waiting for the outcome of this important decision.

The judgment hinged on whether a landlord’s failure to provide a gas safety certificate before the tenant’s occupation is a breach of the prescribed requirements to serve a valid s.21 notice under the Housing Act 1988.

In particular, the most serious aspect of the appeal decision was whether this initial failure before the tenant occupies the property is a “once and for all obligation” failing which results in an absolute bar to serve a s.21 notice, also referred to as a no-fault eviction.

This was a particularly important case for landlords as a mistake of this type by a landlord or its agent would have consequences far greater than other breaches of legislation, which can be remedied or resolved in order to serve a fresh notice.

Without the ability to serve a s.21 notice at any point in a tenancy the rights of landlords would be seriously curtailed and could prevent the use of possession of a property in future where the landlord has no other grounds to secure possession.

The leading ruling from Lord Justice Patten, which will be welcomed by so many landlords, states:

“Although the point is not straightforward, I am not therefore persuaded that for the purposes of s.21A the obligation to provide the GSR to a new tenant prior to the tenant taking up occupation cannot be complied with by late delivery of the GSR.  Late delivery of the document does provide the tenant with the information he needs. If a breach has the consequence for which Mr Cherry contends then that must apply in every case of late delivery even if the delay is only minimal.  This seems to me an unlikely result for Parliament to have intended particularly in the light of the express rejection of the 28 day deadline under paragraph (6)(a). Many ASTs are granted for fixed periods of one year or less so that in practice the landlord’s inability to rely upon s.21 will provide a strong incentive for the timely compliance with paragraph (6)(b). As a matter of construction, I therefore prefer the view that as a result of regulation 2(2) the time when the landlord “is in breach” of paragraph (6)(b) ends for the purposes of s.21A once the GSR is provided.”

This has the effect that as long as the GSR is provided before a “no fault” notice under s.21 is served any failure to provide it at the beginning of the tenancy is not fatal to the use of that procedure. However, landlords should ensure that all other requirements such as Deposit Protection, for instance, are fully compliant as they can affect the validity of a s.21 notice.

Tony Kent, Head of the Property Litigation team at Mackrell.Solicitors, said: “For landlords this decision comes as an enormous relief since the consequences of the ruling of the lower Courts have seemed disproportionately severe for them, especially when there is a GSR in existence and the landlord or their agent had either forgotten to serve it or the tenant has denied receipt at the beginning of the tenancy.”

In response to the Court’s findings, and the importance of ensuring that all relevant requirements are compliant before serving Notices Seeking Possession, Mackrell.Solicitors is encouraging landlords to come forward and seek advice on their current position and documentation well in advance of the expiry of the current eviction ban later this year.

The decision of the Court was not unanimous with Lord Justice Moylan disagreeing with the decision. It is believed that an appeal is being considered.

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