On the 18 June 2020, the Court of Appeal handed down the long awaited judgment in the case of Trecarrell House Limited v Patricia Rouncefield [2020] EWCA Civ 760. In a two-to-one majority, the Court of Appeal have allowed the appeal of the landlord, Trecarrell House Limited, and held that where a landlord has failed to provide an assured shorthold tenant with a gas safety record (GSR) prior to occupation, it is not precluded from serving a section 21 notice.
The decision by the Court of Appeal, although not unanimous, is an important one, particularly for landlords. It dealt with two main points:
Primarily, the decision overrules the previously understood position (and relevant case law including Caridon Property Limited v Shooltz) that where a GSR is not provided to a tenant prior to occupation of the property, the landlord is precluded from ever serving a section 21 notice; the effect of this being that the landlord might only recover possession if one of the Schedule 2 grounds for possession could be made out. Following the judgment in Trecarrell, a failure to provide the GSR at the outset can be remedied at a later date, provided that there was a valid GSR when the tenancy began and this is provided to the tenant before a section 21 notice is served,
Secondly, it was held that, even in the event a landlord fails to carry out subsequent gas safety checks within the 12 month timeframe required by Gas Safety (Installation and Use) Regulations 1998, it can comply by providing the existing tenant with a GSR made outside the 12 month window. In Trecarrell, there was a disputed issue regarding the date of service and the matter has been remitted to the County Court for determination of this point before the final determination of the appeal.
For the purposes of this article, we will not be focusing on the second point in relation to time frames and the Regulations, but if you would like further advice on this please do get in touch.
Decision of Patten LJ and King LJ in relation to the service of the section 21 notice
In his leading judgment, Lord Justice Patten held that 'Although the point is not straightforward...' he was not persuaded that the purpose of the prescribed requirements of Section 21A of the Housing Act 1988 was to prevent a landlord from ever serving a section 21 notice in the event that a GSR was not properly served prior to the occupation of the tenant. Both Lord Justice Patten and Lady Justice King held that such failure to serve the GSR could be remedied, provided the GSR is served prior to the service of the section 21 notice.
The majority judges, in considering the proper interpretation of regulation 2(2) of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015, noted the disparity between the outcome of an 'administrative oversight' where a landlord fails to provide a GSR to a new tenant prior to occupation, and the position where a landlord fails to provide an existing tenant with a copy of the GSR following the annual safety inspection, if the reasoning in Caridon Property Limited v Shooltz were to be applied. It was held that such 'disparity of outcome' did not seem to 'fit with the legislative scheme as a whole'.
Concluding remarks
Despite the dissenting judgment provided by Lord Justice Molyan in relation to preclusion of service of the section 21 notice, this recent decision by the Court of the Appeal is likely to be warmly welcomed by landlords. It is positive to see that landlords will not be precluded from serving section 21 notices to assured shorthold tenants in circumstances where a GSR was not provided prior to occupation.
The importance of the GSR should not be understated as it contains vital information for the tenant and a landlord should of course fulfil its obligations under the 1998 Gas Safety (Installation and Use) Regulations: a failure to do so constitutes a criminal offence. However, as provided by Lord Justice Patten, section 21 of the Housing Act 1988 (whilst it continues to exist) is a key provision for landlords as they do not have to rely on and establish one of the grounds for possession set out in Schedule 2 of the Act in order to recover possession and it reassuring to know that this right is not lost in the event of an administrative error.
