A long-awaited Court of Appeal decision was made at the end of last month, concerning the validity of Section 21 notices in the absence of correctly served gas safety certificates. As Anna Pettinger explains, this has cleared up a very murky area of the law for landlords…
Can I use a Section 21 notice to obtain possession of my property if I did not issue a gas safety certificate at the beginning of the tenancy?
In 2018, a precedent case, Trecarrell v Rouncefield, created much uncertainty for landlords wanting to obtain possession of their property.
The case hinged on a decision by District Judge Luba, who determined that if a gas safety certificate was not issued in accordance with the appropriate regulations, prior to the tenancy starting, the error could not be rectified and a valid Section 21 notice could not be served.
This caused huge issues for landlords (although, personally, I have not seen it being followed in local courts) who were effectively prohibited from regaining possession of their property, if a Section 8 notice could not be applied.
Thankfully, at the end of June, the Court of Appeal rejected Judge Luba’s decision and sided with landlords, providing much-needed clarification on this issue.
The court ruled that a valid Section 21 notice can be served on a tenant, provided a gas safety certificate was issued beforehand. This means failure to serve it prior to occupation is not fatal, as long it is rectified.
Whilst this development provides a sensible outcome and some protection for landlords, especially if rogue management agents were involved, there are still a number of key questions left unanswered.
We are none the wiser about what the position would be if no gas safety check was carried out at the start of the tenancy, if it was done too late or indeed, never carried out at all. It seems we will have to wait even longer for the answer to these questions.
My advice is stick to the letter of the law. Gas safety certificates should be obtained prior to a tenancy commencing and a copy given to the tenant as soon as possible. Even if you use a fully managed agency service to handle your let, I would recommend insisting you are provided with a copy of the certificate and evidence it was issued correctly, given the serious implications of failure to comply with the regulations.
If you are concerned your tenant was not served with a gas safety certificate at the appropriate time, don’t hesitate to email me: anna.pettinger@tayloremmet.co.uk
Anna Pettinger is a property litigation expert at Taylor&Emmet. For more information, telephone (0114) 218 4000
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