Landlords reminded to watch the small print

Claire Mac Mahon

Article written by Claire Mac Mahon, Solicitor, Litigation department

Landlords are breathing a sigh of relief over the news that a court has allowed an eviction notice despite a copy of the gas safety certificate not being provided before the tenancy started.

But experts are warning that attention to the small print is essential if landlords are to avoid problems in future when they are looking to regain possession under what is known as the Section 21 procedure.

Section 21 of the Housing Act 1988 provides landlords with a route to obtaining possession against an assured shorthold tenant for any reason, not just when a tenant has defaulted or otherwise breached a term of their tenancy agreement. However, a section 21 notice cannot be served on a tenant if the landlord is in breach of a prescribed requirement. This includes giving tenants a copy of an up to date gas safety certificate, the Energy Performance Certificate (EPC) and the current version of the Government’s ‘How to Rent’ booklet.

In this case, Trecarrell House Limited v Rouncefield, the landlord had a valid gas safety certificate in place but failed to provide a copy to the tenant when the tenancy commenced in February 2017.  When he served a section 21 notice in May 2018, the tenant refused to move out and the landlord’s claim for possession was heard in the County Court. Initially, the landlord was successful in obtaining the order for possession, but the tenant successfully appealed on the grounds that they had not received a gas safety certificate before moving in.

This was in line with an earlier case involving a similar situation. Caridon Property Ltd v Monty Schooltz had previously ruled that a landlord’s failure to provide the gas safety certificate before the tenant occupied the property was a breach that could not be rectified later.

When the landlord in this latest case was given permission to appeal, the Court of Appeal ruled by a majority in his favour, meaning that as long as a gas certificate was in force before a tenant occupied the property, and that certificate together with those for any subsequent period were provided before a section 21 was issued, then that will be acceptable.

The Court of Appeal also considered whether a failure to carry out a gas safety inspection within the time limit required by gas safety regulations could invalidate a section 21 notice. They ruled that a landlord could still serve a valid section 21 notice even where a gas safety inspection has been undertaken late, as long as a copy was provided before serving the section 21 notice, and as long as other prescribed requirements had been satisfied.

This will be welcome news to landlords, as it allows for administrative errors to be rectified and section 21 notices to be served. But it should not be interpreted as any lessening of the prescribed requirements, and it’s still important to follow good practice procedures as closely as possible.

An administrative error of failing to provide a copy of a valid gas safety certificate at the start of the tenancy is one thing but failing to have a valid safety inspection in place is quite another. Similarly, a delay on undertaking a subsequent inspection at the right time may be acceptable, particularly where tradesmen have not been able to visit premises during lockdown, but the judgment is not a licence to abandon such responsibilities.

All tenants should receive the correct documentation when the tenancy has been agreed, and before they move in, if landlords wish to avoid such challenges in a situation where they may need to regain possession of a property.

For further information, please contact Claire via email or directly on 020 8305 3537.