Since our earlier articles on this issue, we have been keenly awaiting the announcement of the date for the Court of Appeal hearing in the case of Trecarrell House Limited v Rouncefield. This appeal, which will now be heard at the end of January 2020, relates to whether a section 21 notice can be valid if the Gas Safety Record was not provided to the tenant before they commenced occupation of the property.
This is not the first time the courts have considered this issue. While not binding, many landlords are still reeling from the decision in Caridon Property Ltd v Shooltz, where it was held that a landlord who had failed to issue a gas safety certificate to an assured shorthold tenant prior to moving in, could never rely on a section 21 Notice as a means of ending the tenancy and recovering possession.
The decision of the Court of Appeal in Trecarrel House will, however, be binding. Landlords therefore have a very keen interest in the decision.
The facts of the Trecarrel House case are that Ms Rouncefield entered into an Assured Shorthold Tenancy commencing and dated 20th February 2017. A gas safety inspection was carried out before her occupation of the property, but she was not provided with a copy of the Gas Safety Record until 9 November 2017. On 1st May 2018, a section 21 notice was served by Trecarrel House.
At the first hearing at Truro County Court, Ms Rouncefield’s case was that the section 21 notice was invalid because the Gas Safety Record had not been provided prior to the occupation of the premises. In reply, Trecarrel House argued that as the Gas Safety Record had been provided before the section 21 notice was served, the breach had been remedied and the notice was therefore valid. The District Judge favoured this argument and held that there is no absolute time limit on the provision of the gas record for the purposes of section 21. He therefore granted possession.
Ms Rouncefield’s subsequent appeal in the County Court was allowed on the basis that the Gas Safety Record had neither been given in line with regulation 36(6)(b) Gas Safety (Installation and Use) Regulations 1998, nor had it been displayed in a prominent position, as per Regulation 36(7) of the 1998 Regulations. It was held by the judge that both regulations required compliance prior to the tenant commencing occupation of the property.
The hearing in the Court of Appeal has been listed for 28th/29th January 2020, where the decision for the Court will be whether a section 21 notice can be valid if a Gas Safety Record was not provided to the tenant prior to occupation of the premises, but was provided prior to service of the section 21 notice. This is an important point of law which will ultimately affect the future of many possession proceedings in the private rented sector. It will also focus attention on the initial procedures that Landlords and Letting Agents should be adhering to.
We shall be following the outcome of this case closely.