Landlord wins section 21 possession case on Gas Safety Certificates

It was a case that was being followed closely by Landlord and tenant solicitors and yesterday the court of appeal ruled in the case of Trecarrell House Limited and Patricia Rouncefield [2020] EWCA Civ 760. The appeal court judges found in favour of the landlord and held that a landlord can serve a Section 21 eviction notice on a tenant when a Gas Safety Certificate has been served after the tenancy has begun. In this blog we look at the case and the implications for landlord and tenants.

Landlord and tenant solicitors

If you have questions about your buy to let property portfolio or if you are worried about eviction proceedings being taken against you then the landlord and tenant team at OTS Solicitors can help you. Call us on 0203 959 9123 or complete our online enquiry form. Appointments can take place by video conference, Skype or by telephone appointment.

Paperwork and valid section 21 notices

The recent court case concerning tenant, Patricia Rouncefield, was all about whether her landlord, Trecarrell House Limited, could serve a valid section 21 notice to seek possession of the tenanted flat when the landlord hadn’t provided Ms Rouncefield with the Gas Safety Certificate prior to the start date of the tenancy agreement. A Gas Safety Certificate was provided but not until months had passed from the start of the tenancy.

Prior to this court case it was established practice that avalid Gas Safety Certificate was one of a number of documents that either a professional buy to let landlord or an accidental landlord had to give tenants before the tenant occupied the tenanted property. The penalty for failing to do so was the landlord then being unable to secure possession of the tenanted property through the later service of a valid Section 21 eviction notice.

Tenant, Patricia Rouncefield, asked the court to determine the point because her landlord, Trecarrell House, served a section 21 notice on her although they had not provided her with the Gas Safety Certificate until after the commencement of her tenancy.

The court of appeal judges concluded that the landlord‘s section 21 notice was valid as although Trecarrell House hadn’t provided the Gas Safety Certificate to the tenant prior to the start of the tenancy agreement the rental property nonetheless had a Gas Safety Certificate and notice under section 21 is valid provided that the Gas Safety certificate is given to the tenant prior to service of the section 21 notice.

The law on section 21 notices

Under section 21(1) of the 1988 Housing Act a landlord can obtain possession of a property let on an assured shorthold tenancy by giving to the tenant at least two months’ notice in writing stating that the landlord requires possession. Importantly, if the landlord is able to use section 21 to gain possession, the landlord does not have to rely on a ground for possession of a tenanted property set out in schedule 2 of the 1988 Act.

In the case of Trecarrell House Limited and Patricia Rouncefield [2020] EWCA Civ 760, the property was let to Ms. Rouncefield in February 2017 for a period of six months on an assured shorthold tenancy. As the provisions of section 21 of the Housing Act 1988 apply to assured shorthold tenancies the landlord served a section 21 notice on Ms Rouncefield.

For landlords it is always preferable to gain possession of a tenanted property by giving a section 21 notice and then, if necessary, getting the court to make an order for possession. Use of the section 21 notice takes the discretion out of the court making a possession order provided of course that the section 21 notice is valid.

When it comes to section 21 notices, regulations have come into force, namely the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015. Those 2015 regulations state that a landlord has to provide their tenant with:

• An energy performance certificate and

• A Gas Safety Certificate.

The regulations say that a prospective tenant should either receive or have access to a copy of the last Gas Safe Certificate before taking up occupation of the tenanted property and that during the tenancy agreement a tenant should be given or enabled to see records of any subsequent inspections carried out during the tenancy and the renewed Gas Safety Certificate/s.

The frequency of gas safety inspections and the production of certificates is also prescribed by regulations. Gas installations should be checked for safety every twelve months beginning no more than twelve months from the installation of the equipment. It is best for landlord s to take legal advice on whether the regulations apply to them. For example, in the case of Ms Rouncefield, the regulations applied to her flat as even the majority of gas pipes were located outside her tenanted property the gas pipes led to a boiler situated in the flat.

The provisions of section 21A of the 1988 Act and the 2015 Regulations were designed to encourage landlords to comply with the gas safety regulations by preventing a landlord from being able to secure possession of their property through using a section 21 notice unless they had complied with health and safety. The principle being that if a landlord failed to comply with safety regulations the landlord lost the ability to use the accelerated section 21 possession procedure and instead the landlord would have to apply for possession citing a ground for possession under section 7 of the 1988 Housing Act.

In the case of Ms. Rouncefield, the landlord served a section 21 notice on their tenant. However, when the tenancy agreement was granted in February 2017 Ms Rouncefield wasn’t given a copy of the relevant Gas Safety Certificate and nor was the Certificate displayed in a prominent position at the property. However, the landlord did provide a copy of the certificate in November 2017. With the passage of time, the certificate provided was out of date by the date that the section 21 notice was served on the tenant.

The possession proceedings took place under the accelerated section 21 procedure and the tenant raised the landlord ‘s failure to fully comply with the 2015 regulations and the impact this should have on the validity of the section 21 notice and therefore the validity of the possession proceedings.

The court of appeal forensically analysed the legislation, regulations and the history of Gas Safety Certificate provision at the tenanted property and concluded that there were factual issues in dispute including whether there was more than the twelve months between gas safety inspections as permitted by regulations, whether a subsequent annual Gas Safety Certificate dated April 2018 did not comply with the regulations because it did not give the correct date for the safety check and if the Gas Safety Certificate had been provided before service of the section 21 notice.

The court of appeal concluded that the late compliance with the landlord’s obligation to provide or display a Gas Safety Certificate after each annual check is not a bar in itself to a subsequent section 21 notice for possession.

Buy to let property solicitors emphasise that the case isn’t over for Ms Rouncefield and her landlord as the outcome of the appeal depends on whether the Gas Safety Certificate given to Ms Rouncefield was received after she was served with the section 21 notice. If she received the certificate before or with the section 21 notice then the notice is valid. If she received the certificate after service of the section 21 notice then the possession case on section 21 must fail. The court of appeal said it could not determine this issue of service and therefore remitted that issue for determination by the county court. Once the county court has made that factual determination, based on the further evidence produced by the landlord and tenant, then the court of appeal has said that it will determine the appeal in accordance with the evidential findings of the county court judge.

The lessons from Trecarrell House Limited and Patricia Rouncefield [2020] EWCA Civ 760

Buy to let property solicitors note that whilst the decision on Gas Safety Certificates and section 21 notices is welcome news for landlords, the court emphasised that section 21 of the 1988 Housing Act isn’t the main penalty if a landlord fails to comply with gas safety regulations. That is because a breach of the relevant health and safety regulations is punishable as a criminal offence under section 33 of the Health and Safety at Work Act 1974. Furthermore, a landlord whose breach of the gas safety regulations results in the death of a tenant may also have a potential criminal liability for manslaughter.

In addition the case highlights the importance to landlords of:

• Getting your admin right and providing Gas Safety Certificates in accordance with the regulations at the outset of a tenancy

• Making sure that Gas Safety Certificates are renewed in accordance with the regulations and checking the date of the certificate

• Carrying out a checklist before service of a section 21 notice to ensure that you won't hit procedural and administrative difficulties and that you have served the relevant Gas Safety Certificate and any other relevant paperwork.

Landlord and tenant solicitors

If you have questions about any aspect of landlord and tenant law or need advice on possession proceedings then the landlord and tenant team at OTS Solicitors can help you. Call us on 0203 959 9123 or complete our online enquiry form. Appointments are available through video conferencing, Skype or telephone appointment.