The Court of Appeal handed down judgment on whether a landlord’s failure to provide a gas safety certificate (prior to a tenant’s occupation) prevents a landlord later relying on a Section 21 notice. In short, the Court concluded that it does not, so long as the relevant gas safety certificate has been provided before the Section 21 notice is served.
The tenant let the property pursuant to an Assured Shorthold Tenancy agreement in February 2017. She was not provided with a copy of the relevant gas safety certificate at the time.
The landlord did then provide the tenant with a copy of a gas safety certificate – 9 months later, in November 2017. The certificate was dated prior to the date she took up occupation (January 2017). In May 2018, the Landlord served the tenant with a notice under Section 21 of the Housing Act 1988 and subsequently issued possession proceedings.
The tenant defended the claim for possession on the basis that the landlord failed to comply with either regulation 36 (6) (b) or 36 (7) of the Gas Safety (Installation and Use) Regulations 1998. This was on the basis that no gas safety certificate had been provided prior to her occupation of the property and therefore, the landlord was not able to serve a valid notice under Section 21.
The tenant’s defence was initially dismissed and the court at first instance granted a possession order – this was on the basis that regulation 36 had no application either because there was no gas appliances in the property or because the time limit prescribed in the regulations to provide the certificate was not a bar to complying with it late.
The tenant appealed and the Circuit Judge held in February 2019 that a failure to provide a gas safety certificate prior to the commencement of the tenancy was not capable of being remedied. This meant that late service of a gas safety certificate could not enable a landlord to then later rely on a Section 21 notice – a position supported by other senior judges in other decisions at the time.
The Court of Appeal granted the landlord permission to appeal and ultimately concluded that the failure to provide the original gas safety certificate prior to a tenant’s occupation was not a barrier to the service of a Section 21 notice, provided the relevant gas safety certificate (i.e. that which was in force prior to then tenant’s occupation) had been served at any time prior to service of the Section 21 notice.
In summary, a failure to provide the original gas safety certificate prior to a tenant going into occupation is not fatal to a claim for possession based on a Section 21 notice, as long as it is provided before the Section 21 notice is served. This means:
- Landlords still need to serve new tenants with a Gas Safety Certificate at the beginning of their tenancy;
- If the original Gas Safety Certificate is provided to the tenant prior to service of a Section 21 notice, the notice can still be valid;
- There is no time limit for serving an existing tenant with a Gas Safety Certificate that would effect the validity of a Section 21 notice.
Unfortunately however the Court of Appeal did not address some key questions, namely what if the landlord has not done a gas safety check (and so does not have a gas safety certificate to provide) for the period before the tenant takes up occupation. What is the position of a gas safety check done out of time? Further, what is the legal position if the landlord has failed to do the annual gas safety inspection so that there is no certificate to provide? Time will tell whether the Supreme Court is willing to allow a further appeal…
For further information about this judgment, the Gas Safety Regulations or Section 21 Notices, please contact Donna McCarthy or Billy Moxley.