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In October 2015, section 21A of the Housing Act 1988 (the Act) came into force, as part and parcel of the changes made by the Deregulation Act which had received royal assent earlier that year.

By way of a reminder, section 21A of the Act provides that a notice pursuant to section 21 of the Act may not be given at a time when the landlord is in breach of a prescribed requirement relating to the condition and energy performance of dwelling houses and the health and safety of the occupiers.

Accompanying Regulations from the Secretary of State refer to compliance with existing energy performance and gas safety regulations and confirm that a section 21 notice will only be valid if the landlord provided the tenant with an energy performance certificate and a current gas safety certificate (if applicable) prior to their occupation of the property.

The Regulations applied (and continue to apply) to all assured shorthold tenancies, so that even though the above documents may not have been a requirement when the tenancy began, landlords still needed to comply with the Act if they wished to rely on a section 21 notice. This raised questions where a section 21 notice was served when it could not be proved that a valid gas safety certificate was provided to the tenant prior to the start of the tenancy. 

The leading authority on this matter is the Court of Appeal decision in Trecarrell House Limited and Patricia Rouncefield [2020]. In this case, the tenant began a new tenancy in February 2017. The landlord did not give her a gas safety certificate before she entered into occupation. In November 2017, the landlord provided her with a copy of a certificate dated January 2017 (i.e before the date the tenancy began). The landlord served a section 21 notice and issued possession proceedings. 

The tenant defended the claim on the basis that the gas certificate had not been provided prior to her taking occupation and the landlord was not therefore entitled to rely on the section 21 notice. The Court of Appeal held that the correct construction of s.21A of the Act was that as long as a valid gas safety certificate which was in force before the tenant moved in was provided before service of the section 21 notice, the notice could be relied upon. This was good news for landlords who could correct any administrative failures to comply with the Act and then proceed to serve a section 21 notice.

Trecarrell did not, however, provide any authority on what would happen if no adequate gas safety inspection had been carried out at all prior to commencement of the tenancy. A recent County Court appeal decision of HHJ Bloom in the case of Dean Byrne v Thomas John Harwood-Delgado [2022]  provides some additional guidance to landlords on this point.  

In this case, unlike in Trecarrell there was no evidence that a valid gas safety certificate was in force at all at the commencement of the tenancy albeit that a certificate was provided 6 months later. 

The first instance decision of DDJ Wright was that the lack of a valid gas safety certificate at the outset of the tenancy should not stop the grant of an order for possession where a certificate had been provided after the tenancy commenced but permission for appeal was granted. 

HHJ Bloom's decision was that the appeal should be allowed. She explained that the Regulations provide that the "last" record must be provided to a "new" tenant. Following Trecarrell this does not mean that the landlord needs to serve that record before the tenant occupies the premises as late delivery of that record will suffice. However, HHJ Bloom stated that it must refer to a record that existed before the tenant occupied. She concluded that, the purpose of the Regulations is to ensure that the property is safe for the occupiers.

While in Trecarrell the view was taken that the landlord should not be locked out of the section 21 procedure, there should absolutely be consequences for failing to comply with safety regulations that are in place to protect the occupants of the property. The earlier decision was set aside and the matter remitted to be heard by a different judge on the factual issue as to what checks had in fact been carried out before the tenancy commenced and whether there was a certificate in force at that time.

These questions, however, may soon become obsolete given the recent announcement of the abolishment of the section 21 notices. For more information about the proposed changes, Emma Salvatore and Faye Craggs provide an update on the White Paper "A Fairer Private Rented Sector" which was published on 16 June 2022.