Walker Morris’ Housing Litigation experts Karl Anders and Zoe McLean-Wells explain two recent cases which highlight that compliance with gas safety is an essential pre-requisite for residential landlords wishing to recover possession.

Recovering possession by section 21 notice

Residential landlords will be aware that serving two months’ notice under section 21 of the Housing Act 1988 is a method by which an assured shorthold tenancy can be brought to an end without the landlord having to give a reason for requiring possession.

However, the situation is not straightforward because of the requirements which must be complied with before a section 21 notice can be validly served. For tenancies granted after 1 October 2015, the requirements include the need to provide the tenant with a valid Energy Performance Certificate (EPC); the current version of the booklet: ‘How to rent: The checklist for renting in England’ and a valid Gas Safety Certificate (GSC). Furthermore, the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (the 2015 Regulations) specifically require that a landlord must provide a GSC to a tenant at the start of the tenancy, before the tenant takes up occupation.

A crucial question…

Whether a landlord’s failure to provide a GSC at the outset in respect of such tenancies is an absolute bar to service of a section 21 notice to recover possession, or whether it is a breach that can be rescued by later provision of a GSC, has now been addressed in two recent cases: Caridon Property Ltd v Monty Shooltz [1] and Trecarrell House Ltd v Rouncefield [2] – with both decisions being firmly in favour of the tenant.

…repeatedly answered for the tenant

In Shooltz in 2018 HHJ Luba, a very experienced housing judge, stated that the requirement to provide a GSC to a tenant at the outset is a “once and for all obligation on a prospective landlord in relation to a prospective tenant” and that if the intention was that a once and for all breach should not debar a landlord from serving a section 21 notice, then the legislators could have stated that expressly in the 2015 Regulations. HHJ Luba also stated: “…if the… GSC was not given to the tenant before he or she occupied, this is a breach which cannot be rectified”.

In Rouncefield in February 2019 HHJ Carr echoed HHJ Luba’s reasoning and decision. He added that the reasons behind the gas safety regulations were self-evident (a tenant moving into residential premises needs to be sure that the gas appliances are well-maintained and safe) and that a landlord would not lose the ability to serve a section 21 notice unless they failed to provide basic safety information.

WM Comment and practical advice

Whilst these decisions are at County Court level and are not therefore strictly binding on other courts, this very clear and consistent safety-focused approach is likely to have a persuasive effect on other County Court judges. The decisions have received considerable publicity and are likely to be relied upon by tenants as an absolute defence to section 21 possession claims wherever the landlord has failed to provide a GSC at the outset of a tenancy. Advocates acting for tenants may also seek to argue that, by analogy, the same principle should apply where the landlord fails to provide an EPC and possibly also the How to Rent Booklet.

It is possible that the more recent Rouncefield case may be appealed to the Court of Appeal and Walker Morris will monitor and report on any developments.

In the meantime, landlords and their managing agents should ensure that, in all cases, tenants are provided with an EPC, a GSC and the How to Rent Booklet before start of the tenancy and before the tenant moves in. If the tenancy is held jointly, these documents should be issued to all prospective tenants. Landlords and their agents should also keep clear records of both the date of issue of these documents and of the tenant’s receipt, in case evidence is required in any subsequent possession claim.