EWCA Civ 760 was a long-awaited case for all parties involved, and the Court of Appeal’s ruling was ultimately issued on June 18. The Court concluded 5-4 that if the Landlord gives the tenant a Gas Safety Certificate after the s.21 notice is served, the s.21 notice is permissible since the Landlord gave the tenant the GSR before the s.21 notice was served. The Court’s decision benefited landlords, but the matter was difficult to resolve, and many questions remain unsolved.
In Real Life
Patricia Rouncefield began their guaranteed shorthold tenancy in February 2022. They completed the Gas Safety Certificate in January 2022, but it wasn’t delivered to Ms Rouncefield until November 2022—long after she had moved there. After a gas safety examination in February of that year, an s.21 notice was issued in May. The receipt of the February GSR by Mrs Rouncefield before the s.21 notice was challenged (and that issue has been remitted to the county court for determination).
They have filed a claim for possession at Truro County Court. Ms Rouncefield claimed that the Landlord did not give her a copy of the GSR before moving in. After deciding that the s.21 notice would remain valid, notwithstanding the late compliance, the District Judge issued a possession order. Possession order was overturned after HHJ Carr of the Circuit Court heard Ms Rouncefield’s appeal. HHJ Carr agreed with the reasoning in the county court appeal case Caridon Property v. Monty Scholtz, in which HHJ Luba QC ruled that a landlord’s failure to provide the tenant with the GSR before the occupation was a breach that could not be remedied late and resulted in a permanent exclusion from relying on the s.21 procedure.
The Legal System
Before delving into the issues before the Court of Appeal, it’s crucial to step back. And analyze the complicated legal framework in which the appeal was filed.
The s.21 method has been drastically amended as of October 1, 2015, due to the Deregulation Act of 2015. The Housing Act of 1988 was amended to include a new section 21A. Which bans serving a section 21 notice in England. Where the landlord is in contravention of EPC and a Gas Safety Certificate.
The requirements were based on the legal responsibilities previously imposed on landlords. The Gas Safety (Installation and Use) Regulations 1998 (“The Gas Safety Regulations“) compel landlords. To provide tenants with a Gas Safety Certificate in line with paragraph 6 or paragraph 7 of regulation 36. According to an express provision in the 2015 Regulations. The requirement is “limited to the requirement on a landlord. To give a copy of the relevant record to the tenant and the 28 days for compliance with. That requirement does not apply” for section 21A of the Housing Act 1988. As we will see later, this caveat was crucial in the Court of Appeal’s final decision.
Under Regulation of the Gas Safety Certificate
A landlord is responsible for two things: (a) providing a copy of the GSR to each existing tenant within 28 days of the check. And providing a copy of the most recent GSC made in respect of each appliance. Or flue to any new tenant of the property to. Which the record relates before that tenant’s occupancy of the premises.
Landlords can comply with these requirements by posting the GSC in a prominent area. Within the leased premises, as stipulated in Regulation 36. This is true if a gas boiler heats the renter’s apartment outside the apartment building. And there is no such appliance in the tenant’s occupied or to-be-occupied room.
Issues
By the time the hearing was scheduled, the Court of Appeal had been asked to rule on two important issues.
- How much of a landlord’s inability to serve a valid section 21 notice on a tenant is caused by the latter’s failure to receive the GSR before occupation?
- Can the GSR be based on a late safety inspection, nullifying the section 21 notification?
- The second issue was a new one raised by Ms Rouncefield during the appeal.
Before the Invasion
Let’s start with the most basic issue: whether a landlord can compensate. A tenant for not receiving a GSR before occupation. All three judges viewed the obligation in Regulation 36(6) to send a copy of the most recent GSC. To a prospective renter as part of the necessary legal obligations. However, the majority of the Court found that the time constraint imposed by the Gas Safety Regulations. To provide the GSR before occupation did not impact the s.21 goal. It can be utilized to remedy the Landlord’s failure to provide the tenant with a GSC. Before the delivery of the s.21 notice as long as it is delivered before the service of the s.21 notice.
In his leading opinion, Patten LJ considered the preceding provisions in depth. However, he and King LJ based their decision on an interpretation of Regulation 2(2) of the 2015 Regulations. Which outlines the situations in which the 28-day limit does not apply. Patten LJ and King LJ couldn’t see why Parliament would have meant a harsher penalty for landlords’ commitments. To new tenants if the 28-day compliance period was ignored for current renters.
“Such a disparity of consequence does not appear to me. To agree with the legislative system as a whole,” stated King LJ. According to Patten LJ, the duty to provide a GSC is only triggered once a person becomes a tenant. While one possible justification for this disparity is that a new tenant should see the GSC. Before deciding whether or not to enter into the tenancy. This obligation does not arise until after the person has become a tenant. This does not justify providing additional security to new tenants.
Both Patten LJ and King LJ referenced that the limitations on delivering
An s.21 notice are not the major consequence for breach of landlords’ gas safety duty to support their interpretation. You may risk criminal prosecution if you do not cooperate. According to the Gas Safety Certificate, “the imposition of a restriction to the serving of an s.21 notice by s.21A. Is thus purely ancillary to these effects and, at most, a spur to compliance.”
Before serving an s.21 notice, landlords might correct the remaining requirements. The refund of a security deposit, for example, would be a suitable consequence for tenancy deposit legislation infractions. The phrase “at a time” in section 21A of the Housing Act of 1988 did not establish conclusive proof. That the infringement was automatically redressal. Still, it did imply that the Landlord had the authority to take corrective action.
Moylan L.J. wrote a dissenting opinion. Since the 28-day compliance deadline was explicitly disapplied to pre existing tenants, he believes that only that restriction was relaxed. A literal interpretation of the rule, he claims, would have an unfair impact on new and existing renters.
Delayed Risk Analyses
That was the tenant’s second complaint in the Respondent’s Notice he filed following the gas inspection. It was argued that the s.21 notice was invalid since the GSR was not a copy of the record produced in compliance. With the Gas Safety Certificate because the second inspection happened more than a year after the first. In a previous case, a renter successfully utilized this similar line of reasoning in county court.
Patten LJ ruled in a rapid reply that the yearly gas safety check requirement of the Gas Safety Regulations was not a prerequisite to the service of an s.21 notice. (even though it could be a breach of the Gas Safety Certificate exposing the Landlord to criminal penalties). Landlords can meet this obligation for present tenants by supplying them with a GSC. That includes all of the required information, even if the check is completed late. As long as the GSR is supplied before the service of the s.21 notice. This judgment will relieve landlords who have had difficulty going into their buildings. To undertake timely checks owing to the present pandemic.
After Trecarrell, what options do property owners have?
The Court of Appeal’s decision would alleviate many excellent landlords. Who did gas safety checks and were concerned that mistakes in paperwork. Or failure to supply tenants with the Gas Safety Certificate would preclude them from ever using the s.21 procedure. The Court of Appeal overturned the ruling in Caridon v. Monty Scholtz, which found that landlords could not serve an s.21 notice if the Cp12 arrived a day late. The judgment and precedent it established will bring much-needed relief to landlords.
However, the Court’s decision does not give a solution to the plethora of issues. That have developed due to the 2015 law change. In light of this judgment, there are still many unanswered questions. The most important of which being. What would happen if a landlord failed to do a gas safety inspection before a renter moved in. Is it too late to remedy this, and how should it be done? Because the Landlord checked before the renter moved in, this was not addressed in the appeal.
What if the Landlord inspected the premises before the tenant moved
But neither he nor the tenant has a copy of the GSC. Or any evidence demonstrating that the original GSR was given to the tenant? Because the CP12 certificates only require records to be retained for two years. This could be a problem for many compliance landlords.
The Court of Appeal did not decide that all prior gas safety violations are correctable. If the tenant is given the most recent GSR before issuing the s.21 notice. That could imply that if a landlord fails to meet their gas safety obligations. They could be permanently barred from using the s.21 procedure. As long as difficult legal questions have not been answered. The top courts will be called upon to evaluate them in fresh cases. The tenant’s legal team has stated that they want to file an appeal with the Supreme Court. Thus the Court of Appeal’s decision may not be the last word for home tenants.
Although landlords can take heart from the verdict overall. It would be a mistake to interpret the Court of Appeal’s decision as a relaxation of the restrictions. The decision may indicate a more permissive interpretation of the law. Still, it emphasizes the need for landlords to take their gas safety obligations seriously. And perform the requisite checks, distribute Gas Safety Certificate to renters, and keep records. Landlords who want to use the s.21 procedure. Because it is a widespread and effective method of enforcing legal duties should not overlook their legal responsibilities. Or lose the documents required to establish it.