The Court of Appeal recently handed down a judgment on the 18th June 2020 that concluded failure to provide a gas safety certificate prior to a tenants occupation does not prevent a landlord serving a s.21 notice as long as the relevant certificate has been given before service of the notice.
The judgment in the case of Trecarrell House Ltd v Rouncefield  EWCA Civ is good news for landlords. Failure to conduct an annual inspection on time is also not fatal to a s21 claim provided that it is a supplied before the s21 notice is served.
The Gas Safety (Installation and Use) Regulations 1998 imposes various obligations on residential landlords. These obligations include a requirement to carry out an annual gas safety inspection (reg.36(3)); to give a tenant a copy of a gas safety certificate within 28 days of any such inspection (reg.36(6)(a)); and, to give the current certificate to any tenant prior to occupation (reg.36(6)(b)).
Section 21, Housing Act 1988 creates a “no fault / notice only” ground for possession against a tenant on an Assured Shorthold Tenancy. A notice may not be given at a time when a landlord is in breach of a prescribed requirement (s.21A, 1988 Act). The prescribed requirements include reg.36(6) of the Gas Safety (Installation and Use) Regulations 1998, save that “the requirement” is limited to the requirement on a landlord to give a copy of the relevant record to the tenant and the 28 day period for compliance with that requirement does not apply” (reg.2(2), Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015).
The judgment does not address the issue of what the result would be if the landlord does not have a gas safety certificate prior to the tenant going into occupation. No doubt this issue will be tested in due course.
Failure to carry out an annual gas safety inspection does not prohibit service of a s21 notice under the Housing Act 1988 as this is not a prescribed requirement.
This judgment has far reaching consequences and is no doubt welcome relief for landlords and property agents. However, landlords should not avoid complying with the Gas Safety (Installation and Use) Regulations 1998 as the consequences of a faulty boiler can be disastrous.
A copy of the full judgment can be found here