The Court of Appeal has granted permission to appeal to a landlord which failed to provide a gas safety certificate to its tenant before the commencement of the tenancy, and as a consequence has been deemed unable to seek possession of the property by serving notice pursuant to Section 21 of the Housing Act 1988. By way of background Section 21 notices are a “no explanation required” route by which landlords can regain possession of a residential property.

Under the provisions of the Deregulation Act 2015, landlords are required to provide (amongst other things) a valid gas safety certificate to tenants before the tenancy commences. If they do not they are stopped from using the Section 21 route to regain possession. In the case of Trecarrell House Limited –v- Rouncefield, the landlord had provided a gas safety certificate to its tenant before serving a Section 21 notice, but had failed to provide one before the tenant moved into the property. The tenant defended the subsequent possession proceedings on the basis that the failure to provide the certificate at the beginning of the tenancy meant that the landlord should not be entitled to rely on the Section 21 procedure.

At first instance, a possession order was made on the grounds that there was no gas appliance in the property and in any event the gas safety certificate was provided to the tenant before the Section 21 notice was served. The breach of the legislation requiring the provision of the certificate had therefore been remedied by the time the Section 21 notice was served.

The tenant appealed and HHJ Carr, a Circuit Judge, allowed the appeal, finding that the failure to provide the gas safety certificate before the tenant entered occupation was a breach which could not then be rectified at a later date. He reasoned that the intention of the statute was so that a tenant could ensure any gas was well maintained and safe before moving in.

The effect of removing a landlord’s ability to rely on Section 21 is that the tenant cannot be removed from the property unless one of the grounds set out in Section 8 of the Housing Act 1988 can be made out, such as rent arrears or the requirement by the landlord to live in the property themselves. In the absence of the landlord being able to make any of those grounds out, the tenant effectively acquires security of tenure of the property.

The Court of Appeal, in granting permission to appeal, recognises that this case raises an important point of principle; namely whether it is sufficient to provide a tenant with a gas safety certificate at some point during the tenancy, even if one has not been provided at the outset.
It is therefore positive that the Court of Appeal will offer clarity on this area to avoid future uncertainty for both landlords and tenants.

For further information regarding residential tenancies, please contact Jennifer Beatty on 0161 819 4911 or at jbe@nexussolicitors.co.uk.