The Court of Appeal’s recent judgment in the case of Trecarrell House Ltd v Rouncefield will be a welcome relief to landlords who may have inadvertently breached the Gas Safety (Installation and Use) Regulations 1998 (“the Gas Regulations”).
Pursuant to the Gas Regulations landlords are to carry out an annual gas safety inspection and provide the tenant with a copy of the safety certificate within 28 days of the same. Article 36(6)(b) stipulates that a landlord must give a copy of the current gas safety certificate to a tenant before occupation. This requirement often caught landlords off-guard, and was frequently, albeit unintentionally, breached.
Section 21 of the Housing Act 1988 provides for ‘no fault’ possession. Prior to serving a section 21 notice, a landlord must comply with certain mandatory requirements, including those in the Gas Regulations. If they do not do so correctly, then their ability to recover possession without proving a positive case will fail.
Unfortunately until now, Judges in the County Courts varied in their approach regarding a breach of the Gas Regulations. Some held that as long as a gas safety certificate had been provided prior to service of the section 21 notice, that was sufficient for the purposes of seeking possession pursuant to section 21; others held that the failure to provide the certificate in line with the regulations was a bar to possession on the basis of section 21. Given that County Court decisions do not create precedent, the unfortunate reality was that there was always an element of risk in bringing possession proceedings, if there had been a failure to comply with the Gas Regulations before a section 21 notice was served. It quite literally would depend on the Judge on the day.
The Court of Appeal has now resolved the matter in Rouncefield, and its decision binds the lower courts. We now know the position: so long as a gas safety certificate has been provided, before service of the section 21 notice, possession proceedings may be pursued.
This is a important, and welcomed, and sensible clarification, given that the alternative would be that, effectively, an assured tenancy was created, making possession proceedings much more difficult.
It was the Government’s intention, pre-Coronavirus, to abolish section 21 evictions. At the time of writing there has been no further indication as to if or when such abolition is coming into effect, however nearly all possession proceedings are currently on hold until the end of August 2020.