A recent decision has been handed down which clarifies the harsh position that was previously in place in respect of landlord compliance with regulation 36(6)(b) of the Gas Safety (Installation and Use) Regulations 1998 (Gas Safety Regulations), which requires landlords to provide a copy of the latest gas safety certificate to an incoming tenant before that tenant occupies the premises. A breach of this regulation has in the past precluded landlords from serving a section 21 notice pursuant to section 21A Housing Act 1988 (HA 1988), meaning that landlords potentially faced the untenable position of being able to recover possession of their rental properties in the absence of a breach of the tenancy on the part of the tenant.
The Court’s approach towards the gas certificate regulations mentioned above have been very strict in the past as a result of the case of Caridon Property Ltd v Shooltz  EW Misc B9, in which the requirement to supply a gas safety certificate prior to the tenant occupying the premises was described as a “once-and-for-all-obligation”, in the sense that a breach of this regulation could not be cured retrospectively and providing the relevant gas certificate at a later date would not remedy the breach. The effect of this was that landlords, who had failed to provide a gas certificate prior to a tenant moving in, were prohibited from serving a valid section 21 notice in relation to that tenancy and therefore had to pursue fault-based grounds for possession pursuant to Schedule 2 of the HA 1988 and serve a section 8 notice, such as in respect of rent arrears, which was not always appropriate or applicable.
On the 18 June 2020, the former position was overruled in the case of Trecarrell House Ltd v Rouncefield  EWCA Civ 760. It was held that as long as a valid gas safety certificate has been provided to an existing tenant before a section 21 notice is served, i.e. one that was in place at the time that the incoming tenant took occupation of the property, then the landlord retained his right to use the eviction procedure under section 21 HA 1988, notwithstanding the earlier breach of section 36(6) of the Gas Safety Regulations.
This surprising turn of events lifts the bar previously imposed by a breach of regulation 36(6) of the Gas Safety Regulations and gives the opportunity to use section 21 notices to landlords who have previously been in breach of the regulations.
Impact for Landlords
This development is set to have a largely positive impact on landlords in gaining possession of their properties on non-fault grounds, such as for reasons of sale and substantial repair/renovation. This will prevent landlords from having to establish fault grounds under Schedule 2 of the HA 1988, and can therefore benefit from the accelerated possession procedure if the tenant fails to comply with the section 21 notice and vacate the property.
Despite the decision which relaxes the restriction placed on landlords in relation to gas safety certificates; it should nevertheless not be viewed as an excuse in failing to adhere to regulation 36(6) of the Gas Safety Regulations. If landlords find themselves in a position where they have not complied, it is highly recommended that they arrange for one to be provided to tenants at the first available opportunity and seek legal advice. This will not only ensure the safety of the tenant, but will also ensure any section 21 notices served in the future are valid.
The Dispute Resolution Team continues to monitor legal developments affecting our landlord clients so that they are provided with the most up to date information. Should you have any questions, please do not hesitate to contact the Team on 01206 574431 or by e-mail at email@example.com