No Gas Safety Certificate, no Section 21

Two years on from the judgment in Trecarrell House Limited v Rouncefield (2020) EWCA Civ 760, which dealt with the impact of missing gas safety certificates in the validity of a Notice Seeking Possession served pursuant to Section 21 (s21) Housing Act 1988, judgement in a recent case has offered further clarity on the gaps that were previously left open.

While we won’t delve too deep into the background of prescribed requirements, for reference, as of 1^st October 2015 one of the legal obligations’ landlords must comply to when granting an Assured Shorthold Tenancy agreement is a valid Gas Safe Certificate. This certificate must be provided to the tenant before they take up occupancy of the property, as well as any future certificates that are produced during their tenancy.

Failing to provide a Gas Safe Certificate before the tenant takes up occupancy, and/or not providing ongoing certificates, means a valid s21 notice cannot be served.

Trecarrell held that in the event a Gas Safe Certificate was produced at the start of a tenancy, but the landlord had failed to provide it to the tenant at the time, this could be regularised by the landlord providing it late. So long as the tenant has been provided with the initial Gas Safe Certificate and the one in date as at service of the s21 notice, then the notice would be valid and would not affect a landlord issuing it – assuming all other requirements were met.

Trecarrell did not, however, provide any context or authority on what would happen if no active gas safety inspection had been carried out prior to commencement of the tenancy. A recent County Court appeal decision in the case of Byrne v Harwood-Delgadoat Luton County Court [21 June 2022] provided some additional guidance to landlords on this point.

HHJ Bloom clarified the Regulations provide that the last record must be given to a new tenant. Reiterating 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, she stated that it must refer to a record that existed before the tenant occupied and could not be corrected by producing a later date Gas Safe Certificate. If no certificate exists from this time, then any s21 notice would therefore be invalid.

So, with that said, at present if an Assured Shorthold Tenant is not provided with a Gas Safe Certificate from an inspection prior to their occupancy, then a valid s21 notice cannot be served. It may be that this decision is appealed.