Legal News | 2.07.20

Possession Proceedings and Gas Safety Certificates

TRECARRELL HOUSE LTD v PATRICIA ROUNCEFIELD (2020)

The Court of Appeal have assisted landlords looking to obtain possession of their properties let under assured shorthold tenancies (“ASTs”), in situations where they have failed to provide their tenants with a Gas Safety Certificate (“GSC”) from the outset.

Brief facts of the case:

• The tenant occupied the property under an AST from February 2017.
• When the AST was granted, the landlord failed to provide a copy of the GSC.
• A GSC was produced prior to the tenant’s occupation, dated 31 January 2017, but was provided to the tenant much later on 9 November 2017. Therefore, the tenant had occupied the property for eight months before it was given a copy of the GSC (but the GSC was valid at the time the AST was granted).
• The landlord served a notice pursuant to section 21 of the Housing Act 1988 on the tenant on 1 May 2018. A Section 21 Notice is a no-fault notice, meaning the tenant had not breached the terms of the AST, but the landlord still required possession of the property.

Judicial treatment:

In the High Court, the HH Judge Carr followed the reasoning of HH Judge Luba QC in Caridon Property Limited v Shooltz, and found that the landlord was not able to serve its Section 21 Notice having failed to assure the tenant that it was living in a property compliant with Gas Safety Regulations (“the Regulations”). This created an unusual security for tenants, whereby a landlord was unable to remedy its mistake in failing to provide a GSC at the outset and later obtain possession.

In contrast, the Court of Appeal found that the landlord’s delay in complying with its obligation to provide a GSC ought not be a bar to serving a Section 21 Notice.

In coming to its decision, the Court noted that the landlord could be found to have committed a crime in failing to comply with the Regulations, and to be prevented from relying on a Section 21 Notice was an ancillary consequence (and to be considered in this context).

Further, landlords were able to rectify other mistakes made in relation to the tenancy, and were not subsequently prevented from relying upon their Section 21 Notices. For example, landlords were able to rely upon Section 21 Notices after returning a tenant’s deposit in full (where it had failed to comply with the requirements on holding the deposit in an appropriate Deposit Scheme).

The Court recognised that it was not the intent of Parliament to prohibit landlords from ever being able to rely upon a Section 21 Notice, where they had failed to provide a GSC at the outset of a new tenancy.

Conclusion:

Since the Deregulation Act 2015 came into effect, many landlords have been prevented from obtaining possession of their properties, with tenants perceived as having an equivalent security to assured tenants. Whilst possession claims remain a tricky area to navigate, this decision provides landlords with some welcomed relief, so long as they later rectify their mistake and provide a GSC prior to serving a Section 21 Notice upon the tenant. However, there remain significant risks in setting up ASTs and landlords should seek legal help if they are unsure how to comply with them.

A careful examination of the facts should always be undertaken before a notice seeking possession is relied upon, and Wansbroughs are here to advise whether any additional steps should be undertaken. If you would like to speak to a member of staff about the status of your tenancy, please get in touch.