At long last, the Court of Appeal has delivered its judgment in the case of Trecarrell House Limited v Rouncefield, which relates to whether a Section 21 notice can be valid if a Gas Safety Certificate was not provided to the tenant before they commenced occupation of the property. As it is some months now since our earlier articles on this topic, it may helpful to summarise the facts.
Initially, the landlord, Trecarrell House Limited (“Trecarrell”), was granted an order for possession under Section 21, but the tenant, Ms Rouncefield, successfully appealed the order on the grounds that she was not provided with a Gas Safety Certificate prior to moving into the property. To be clear, a gas safety inspection had been carried out, and a certificate issued – it was simply not provided to Ms Rouncefield until after she had taken up occupation.
At the first appeal, the judge held that a failure to provide a Gas Safety Certificate before the tenancy commenced was not capable of being remedied, so the order for possession was set aside. Given the considerable implications of this decision for residential landlords and tenants, the Court of Appeal granted Trecarrell permission to appeal.
By a majority, the Court of Appeal held that a Section 21 notice is valid so long as the landlord has, at any time before service of the notice, given to the tenant:
- a copy of the certificate that was in force before they entered into occupation; and
- a copy of any further certificate that related to a subsequent inspection.
Put simply, this is very good news for landlords. Failing to provide the original Gas Safety Certificate prior to a tenant’s occupation is not fatal to the Section 21 process, so long as it is provided before the notice is served. Likewise, if a landlord fails to carry out the annual inspection in time, it will not prove fatal so long as the further certificate is also given before the Section 21 notice is served.
Of course, in the current climate that is particularly important as lockdown has meant that considerable numbers of gas safety inspections will not have been able to proceed.
While not strictly relevant to the facts of the Trecarrell case, there remains the question of what is the position if the landlord has failed to undertake a gas safety check – so there is no certificate – for the period before the tenant went into occupation. It is unclear whether that can be remedied.
It is also unclear what is the position if the landlord has failed to undertake the annual gas safety inspection, so again there is no certificate to provide to the tenant.
In Trecarrell, the Court of Appeal held that the duty to undertake an annual gas safety inspection is not a prescribed requirement for the purposes of Section 21A. This could be welcome relief where a landlord’s gas service engineer has been refused access to the property. However, the landlord who has failed to comply should expect a defence to a possession claim based upon the legal doctrine that a person cannot pursue legal remedy if it arises in connection with their own illegal act.
Our advice for all landlords is to remain vigilant in providing your tenants with valid Gas Safety Certificates prior to a new letting, and completing annual inspections.