Update on Gas Safety Certificates and Section 21

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Landlords were extremely concerned last year over an appeal court ruling that meant Section 21 notices were invalid when a landlord had failed to serve a Gas Safety Certificate at the commencement of the tenancy.

What’s more, the error could not be mended. The ruling meant that the tenant effectively had a protected tenancy – no chance of eviction unless there was a serious and provable breach of the agreement using Section 8.

The original appeal ruling was the County Court appeal decision of Caridon Property Ltd v Monty Schooltz, which confirmed that the landlord’s failure to provide a copy of the gas safety certificate before the tenant occupied the property was a breach that could not be rectified.

Consequently, a judgment in the much-anticipated case of Trecarrell House Limited v Rouncefield was finally handed down on 18 June 2020.

In this case the landlord again did not provide a Gas Safety Certificate to the tenant before or at the commencement of the tenancy in February 2017. The landlord did provide an up-to-date copy of the Certificate prior to serving the section 21 notice in May 2018, but the tenant refused to leave.

At the possession hearing the landlord was originally granted an order for possession, but the tenant then successfully appealed on the grounds that they were not provided with a gas safety certificate before moving in.

The case then went to the Court of Appeal (Trecarrell House Limited v Rouncefield 2020) which by a majority concluded that the confusion over the regulations between the Housing Act and the gas regulations was wrongly applied by the previous courts.

It means that the anomaly has been removed and that landlords can enforce a possession claim using Section 21 as has always been the case, providing a copy of the Gas Safety Certificate is given before the Section 21 notice is serviced.

This comes a relief to landlords. Although evictions using Section 21 are relatively rare, when it is needed it works well for landlords and gives much more certainty of outcome than Section 8. However, landlords should make sure that all other requirements: as deposit protection, licencing, EPC, Electrical and Gas Checks and the How to Rent Guide information have been supplied and complied with as they can all affect the validity of a Section 21 notice.

The irony is that Section 21 is to be abolished in the coming months – currently delayed by Covid – but supposedly to be replaced by a more effective version of Section 8. We shall see!

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