On 18 June 2020 the Court of Appeal handed down its eagerly awaited judgment in Trecarrell House Limited v Patricia Rouncefeld  EWCA Civ 760 – a judgment which will draw a sigh of relief from residential landlords.
Since the February 2018 decision in Caridon Property Ltd v Monty Shooltz, landlords have been unable to obtain a possession order using a section 21 notice if they fail to provide their tenants with a copy the most recent gas safety report (GSR) before the tenant took up occupation of the property. However, following the judgment in Trecarrell, landlords will now be able to serve a section 21 notice even if they did not provide the tenant with a GSR prior to the tenant’s occupation.
Ms Rouncefield (the Tenant) was the tenant of Flat 2, Trecarrell House. Flat 2 received heating and hot water via a gas boiler. Crucially, the Treacarrell House Limited (the Landlord) failed to provide the tenant with a GSR prior to the tenant taking occupation of the Property in February 2017.
The Landlord served a GSR dated January 2017 on the Tenant in November 2017, and later an updated GSR dated February 2018. In May 2018, the Landlord served a section 21 notice on the Tenant.
Issues for the court
The Court of Appeal had to consider two main issues:
- Whether the Landlord could evict the Tenant by serving a section 21 notice even though it had not served a GSR on the Tenant prior to her occupation of the property; and
- If the Landlord could evict the Tenant using a section 21 notice, whether the fact that the latest gas safety check was not carried out within the time limits specified by the regulations prevented the Landlord from serving the section 21 notice.
On the first issue, the Court considered the wording of the legislation. It noted that the wording of section 21A does not impose a permanent restriction on service of a section 21 notice if the landlord has failed to provide a GSR. Rather, it imposed a temporary restriction which could be cured by eventual compliance with the regulations. It is unlikely Parliament would have intended that landlords are prevented from serving section 21 notices, as eventual service would still provide the tenant with the information they need.
On the second issue, the Court noted that the Landlord was in breach of the gas safety regulation requiring gas safety checks to be carried out in intervals of not more than 12 months. However, this too did not prevent the Landlord from serving as section 21 notice. Whilst the gas safety check may have been carried out later than required, the fact remained that the GSR given to the Tenant contained all the information required under the regulations.
The Court held that the Landlord was not obliged to serve the Tenant with a gas safety record at the start of her tenancy – it sufficed that the gas safety record was provided prior to the service of the section 21 notice. Nor did it matter that the gas safety check itself was not carried out with the time limit specified under the regulations.
With regards to cases of existing tenancies, the Court also held that there would be no time limit within which landlords must serve an updated gas safety record on a tenant. Eventual service will suffice.
The decision in Trecarrell will be welcomed by residential landlords. Where, under Caridon Property Ltd, landlords were prevented from serving a section 21 notice if they had failed to provide a GSR to the tenant before they took occupation, that is no longer the case. A GSR will still have to be provided to the tenant, but a landlord need only serve the certificate on the tenant prior to the service of the section 21 notice.
We would however encourage landlords to provide gas safety reports to tenants prior to them taking occupation, and to have gas safety checks carried out annually and within the time limits specified within the regulations. As the Court noted in Trecarrell, the inability to serve a section 21 notice before a GSR has been supplied is not the primary sanction that landlords need to be concerned about. Breach of the Gas Safety (Installation and Use) regulations 1998 is punishable by itself as a criminal offence. This decision is also likely to be challenged by the tenant’s solicitors so it’s not the end of the story just yet!