• Isobel Sanders

Failure to provide a gas safety certificate prior to a tenant’s occupation is not fatal to s21 claim

Last week, in a judgment that will bring much relief to residential landlords, the Court of Appeal confirmed the position regarding the validity of section 21 notices where a gas safety certificate (GSC) is in force but was not provided to a tenant before the tenant moved into the property.

Section 21A of the Housing Act 1988 precludes landlords from serving a section 21 notice (a notice seeking possession on no-fault grounds) where they have not complied with certain requirements, including those relating to gas safety inspections and the provision of a GSC. Under the Gas Safety (Installation and Use) Regulations 1998 (SI 1998/SI/2451), a landlord must provide an incoming tenant with a copy of the latest GSC before the tenant occupies the premises and provide a copy of any further GSC within 28 days of a subsequent inspection.

Until now, this requirement had become a stumbling-block for landlords who intend to serve a section 21 notice but had failed to provide a copy of the GSC that was in force before the tenant entered into occupation. This raised the question as to whether a landlord could rectify the problem by providing the GSC at a later date, or whether late compliance meant no compliance at all. A number of recent county court decisions suggested that a landlord who had failed to comply at the outset would find themselves in breach of the prescribed requirements for the duration of the tenancy - even if the GSC was served later - thus rendering any section 21 notice invalid.

This point was considered by the Court of Appeal last week in Trecarrell House Ltd v Rouncefield [2020]. The Court of Appeal held that, in providing the GSC (albeit late) before serving the section 21 notice, the landlord had remedied the default.

A section 21 notice is, therefore, valid as long as the landlord has provided the tenant with a copy of the GSC that was in force before they moved into the property, and any up to date GSC, before the notice is served. This is good news for landlords who had previously been concerned about their ability to serve a valid notice in these circumstances.

The position for landlords who are seeking possession but did not carry out an annual gas safety inspection – either before the tenancy began or at all – is still unclear.

In any event, landlords should take care to ensure compliance with all prescribed requirements when serving a section 21 notice, to avoid arguments later on. It is always advisable to instruct a solicitor to prepare and serve the section 21 notice for you.

Isobel is a Graduate Litigation Executive with a background in property litigation and dispute resolution, having acted for a variety of clients including private landlords, tenants, letting agents, property specialists and local authorities.

If you require assistance in serving a notice on your tenant then please contact Isobel Sanders of Bate & Albon Solicitors for a free discussion.

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