4 February 2020

Where next for Section 21?

By Danny Turpin, Solicitor, Hayes + Storr.

It has been two years since the decision in Caridon Property v Monty Shooltz. The case is of significant importance to both landlords and tenants alike.

Following the expiry of a section 21 notice, Caridon issued possession proceedings against its tenant, Monty Shooltz, however, Caridon had failed to provide a gas safety certificate prior to their tenant occupying the premises under an assured shorthold tenancy. This proved to be fatal for Caridon and the proceedings were dismissed.

The case effectively decided that where a gas safety certificate has not been provided by a landlord to a tenant under an assured shorthold tenancy before the tenant occupies the premises, no valid Section 21 notice can be served to recover possession. This was, and remains, a particular problem for a large number of landlords who have not complied with the Gas Safety (Installation and Use) Regulations 1998. There is no saving provision for landlords.

Whilst the case was decided in the County Court and is not therefore binding, it has been increasingly applied throughout the country. Therefore, as it stands, any landlord who has fallen foul of the 1998 Regulations will have to find alternative means of regaining possession under the fault-based procedure. However, it seems unlikely to have been parliaments intention to debar a landlord from ever serving a section 21 notice where they have not complied with the 1998 Regulations.

Caridon did not appeal the decision, but the same point was used to dismiss possession proceedings in the case of Trecarrell House Ltd v Rouncefield. This decision has been appealed to the Court of Appeal who are hearing the case this month, with a decision thought to be likely in either February or March 2020.

This is all however likely to be entirely irrelevant in the near future, as once the government has dealt with the UK’s departure from the European Union, it looks set to condemn section 21 to the history books. It remains to be seen when this will happen and what provisions the government put in place to reform the current difficulties that both landlords and tenants are facing with the system as it presently stands.

We will provide a further article when the decision is handed down in the appeal.

In the meantime, if you are a landlord or tenant and would like to discuss your tenancy then our experienced team will be pleased to assist.

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