On 18 June 2020 the Court of Appeal handed down judgment in the eagerly awaited appeal in Trecarrel House Limited v Patricia Roundfield .
A section 21 notice may not be given in relation to an assured shorthold tenancy of a dwelling house where a landlord is in breach of a “prescribed requirement”. One of those requirements is that the landlord must provide to a prospective tenant (or ensure that they have access to) a copy of the last gas safety record before taking up occupation and to an existing tenant within 28 days of the inspection taking place (Regulation 36 of the Gas Safety (Installation and Use) Regulations 1998).
In the case of Trecarrel, the tenant (Ms Rouncefield) was a tenant of Flat 2, Trecarrell House, Carthew Terrace, St Ives, Cornwall pursuant to an assured shorthold tenancy agreement. The flat had central heating and hot water which was supplied by a gas boiler which was located in the building.
At the time the tenancy was granted in February 2017 Ms Rouncefield was not provided with a copy of the relevant gas safety record nor had a copy been displayed in the flat. The landlord served a s.21 notice on Ms Rouncefield on 1 May 2018 and provided her with a copy of the last gas safety record on 9 November 2017 (after she had taken up occupation but before the service of the s.21 notice). The gas safety record was dated 31 January 2017 and so was out of date by the time the s.21 notice was served.
Possession proceedings were issued against Ms Rouncefield and she defended them on a number of bases including the fact that the 2017 gas safety record had not been provided to her prior to taking up occupation of the flat.
At the hearing of the claim DDJ Rutherford sitting in the County Court at Truro held that regulation 36 had no application either because there was no gas appliance in the flat or because the time limit prescribed in the regulations for the provision of the gas certificate was not a bar to late compliance.
Ms Rouncefield appealed and was successful. The court found that where there had been late compliance with the regulations, the landlord was not entitled to serve and rely on a s21 notice. This resulted in a (some would say farcical) situation where a landlord could not recover possession by service of a s 21 notice where a gas safety record was not supplied to the tenant or displayed in the flat prior to taking up occupation.
The landlord appealed to the Court of Appeal. In a judgment handed down on 18 June 2020 the Court of Appeal decided that a s.21 notice could be given as long as, prior to service of the s.21 notice, the landlord had provided the gas safety record that was in force prior to the tenant taking up occupation and a copy of any record relating to any subsequent inspection
The decision will be welcome news to landlords who have found themselves being unable to serve a s21 notice where there had been a technical breach of the gas safety regulations by failing to provide certain information to a tenant even if the gas appliances had been properly checked and maintained.
Landlords who have failed to provide to their tenants the last record of inspection should ensure that they do so before service of a s21 notice.
If you have any questions about the impact this judgment will have on you as either Landlord or Tenant to discuss the options available to you, please contact Steven Ross, Partner by email on firstname.lastname@example.org or by telephone on 0207 644 7261 or contact him on LinkedIn.