4 August 2020

Important questions remain unanswered for landlords following court decision

By Danny turpin, solicitor, Hayes + Storr.

In February 2020 we covered the Caridon Property v Monty Shooltz case. In short, the landlord, Caridon Property, attempted to obtain a possession order by issuing a section 21 notice to its tenant (Monty Shooltz). The case decided that Caridon’s failure to provide a gas safety certificate prior to Mr Shooltz moving into the premises meant that no valid section 21 notice could be served.

The implications of the decision had the potential to cause considerable difficulty for landlords, raising questions as to whether administrative errors made by landlords can be rectified prior to section 21 notices being served.

In the more recent case of Trecarrell House v Rouncefield, The Court of Appeal sought to clarify the position.

Trecarrell House v Patricia Rouncefield (2020)

In 2017, Ms Rouncefield entered into an assured shorthold tenancy of a flat of which Trecarrell House Ltd was the landlord. Mrs Rouncefield was not given a gas safety certificate until nine months after she had taken up occupation of her rented property.

In May 2018 Trecarrell served notice on Ms Rouncefield and issued possession proceedings. In the County Court the case was decided against the landlord and the matter went on appeal to the Court of Appeal.

In June 2020 the Court of Appeal handed down its judgment and ultimately decided in favour of the landlord in respect of the failure to provide a gas safety certificate prior to the tenant entering into occupation. However, whilst some landlords will be relieved at this outcome, the decision leaves more questions than it answers and is likely to be the subject of a further appeal to the Supreme Court.

At present, the position is as follows:

• A landlord can serve a gas safety certificate late and still serve a valid section 21 notice, provided that the gas safety certificate is served on the tenant prior to service of the section 21 notice. The Court of Appeal dis-applied the 28 day time limit for service of the certificate under the relevant regulations.

• A landlord does not have to provide the tenant with a current gas safety certificate prior to the tenant entering into occupation of the property and can serve the certificate late (as above).

• The failure of a landlord to obtain a further certificate within 12 months of the previous certificate will not prevent the service of a valid section 21 notice as long as the landlord has complied with obtaining the certificate and serving it on the tenant by the time a section 21 notice is served.

Landlords should however note that, if they do not have a current gas safety certificate in place when the tenant enters into the property, they are unlikely to be able to rely on the decision in Trecarrell, and therefore may not be in a position to serve a valid section 21 notice.

The importance of obtaining gas safety checks in a timely manner and keeping good records cannot be understated. The current accelerated claim form now requires that the landlord sends the court all gas safety certificates throughout the course of the tenancy and the courts are taking the matter of gas safety very seriously. Therefore it is imperative that copies are retained by landlords and that the previous certificate is not destroyed when a new certificate is obtained.

This article looks at the position in relation to service of section 21 notices. There may also be criminal sanctions for landlords who fail to comply with their obligations to obtain a gas safety certificate within 12 months of the previous certificate and who fail to provide their tenant with copies within 28 days of receipt.

This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek our specific advice.

If you are a landlord or tenant and would like to discuss any matter relating to this judgement, call Danny on 01328 850749 or email danny.turpin@hayes-storr.com. Danny is an experienced property litigation lawyer with specialist knowledge of the private rented sector.

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