In an eagerly awaited decision the Court of Appeal has found that a landlord's failure to provide a Gas Safety Certificate prior to a tenant's occupation of the property does not prevent the landlord from serving a valid section 21 Notice Requiring Possession so long as the certificate is provided before the notice.
The Gas Safety (Installation and Use) Regulations 1998 impose obligations on landlords of residential premises to ensure that gas appliances are maintained in a safe condition and are regularly inspected.
Once inspected, the record of that inspection or Gas Safety Certificate must be kept by the landlord for 2 years and:
- must be given to any new tenant before that tenant occupies the premises; and
- given to each existing tenant of premises to which the record relates within 28 days of the date of the check.
All clear so far!
Under section 21 of the Housing Act 1988 the landlord may obtain possession of premises let on an AST by giving the tenant at least two months' notice (currently 3 months due to Covid-19) in writing stating that possession is required. When that is done the Court must make an order for possession.
In recent years Parliament has introduced various statutory restrictions on the right and ability of the landlord to serve a s21 notice, including the need to comply with the prescribed legal requirements and s21A HA1988 states that the landlord may not serve a s21 notice at a time when the landlord is in breach of a prescribed requirement.
The obligation to provide a Gas Safety Certificate to any new tenant before that tenant occupies the premises is one of the prescribed legal requirements. In Caridon Property Limited v Shooltz His Honour Judge Luba QC held that the requirement for the Gas Safety Certificate to be provided to the tenant prior to taking up occupation should be strictly applied and that the later service or display of the relevant certificate did not free the landlord from the restriction on the service of a s21 notice.
His Honour Judge Carr held the same view that a failure to provide a Gas Safety Certificate before Ms Rouncefield's assured shorthold tenancy commenced in February 2017 could not be remedied even where the certifcate dated January 2017 was provided in November 2017 and before the s21 Notice was served in May 2018. HHJ Carr therefore granted the tenant’s appeal against a possession order.
The Court of Appeal rejected this strict interpretation and held that a s21 notice could be given so long as the landlord had, at any time prior to service of the s21 notice, given the tenant a copy of the Gas Safety Certificate in force before the tenant took up occupation of the property.
The tenant also sought to uphold the original decision of HHJ Carr on the grounds that the second gas safety inspection took place more than 12 months after the previous inspection and therefore the landlord remained in breach of the regulations and precluded from serving a s21 notice. The Court did not accept this argument and again found that so long as the certificate is provided before the s21 notice, that notice will be valid.
This decision will come as a relief to landlords who have have been concerned about serving a s21 notice where they may have omitted to provide a valid Gas Safety Certificate to the tenant at the time the tenancy was entered or following a subsequent inspection.
Although the point is not straightforward, I am not therefore persuaded that for the purposes of s.21A the obligation to provide the GSR to a new tenant prior to the tenant taking up occupation cannot be complied with by late delivery of the GSR