The Court of Appeal has today handed down judgment in the case of Trecarrell House Ltd v Rouncefield [2020] EWCA Civ confirming that a landlord’s failure to provide a tenant under an Assured Shorthold Tenancy (AST) with a copy of the current Gas Safety Certificate (GSC) before it takes up occupation does not prevent the landlord from serving a valid section 21 notice on the tenant to bring the tenancy to an end provided that a copy of the relevant certificate is given to the tenant before the section 21 notice is served.
This is a reversal of the County Court Appeal decision in Caridon Property Limited v Shooltz (2 February 2018) in which the court ruled that a landlord’s failure to serve the tenant with a GSC before the tenant takes up occupation of a property cannot be retrospectively remedied thus preventing a landlord from ever serving a valid section 21 notice. Although Caridon was only a County Court Appeal case it has been followed by a number of subsequent cases, including in Rouncefield, particularly as the presiding judge in Caridon was a leading housing law practitioner.
The Court of Appeal’s decision in Rouncefield brings the law in relation to GSCs into line with the other prescribed requirements for serving a section 21 notice, such as provision of an Energy Performance Certificate and the How to Rent Booklet, which a landlord is required to provide to the tenant before the AST commences but, which if it fails to do so (or cannot prove it did so), it can retrospectively remedy by providing copies to the tenant serving the section 21 notice.
The judgment is particularly good news for Receivers who often don’t know whether a borrower landlord has complied with the prescribed requirements before the AST was entered into or does not have the evidence to prove that it so complied. To avoid disputes arising it would be prudent to provide all tenants of ASTs with copies of the necessary documents, including the GSC from the time the tenancy was entered into, before serving a section 21 notice as a matter of course.
The judgment does leave open one important question: what if the landlord has not undertaken a gas safety check for the period before the tenant went into occupation – can that be remedied? Unfortunately the Rouncefield case did not consider that point because although the tenant was not given the GSC before she went into occupation of the property in February 2017, there was an existing GSC from January 2017 which she was subsequently provided with. It therefore remains to be seen what the court will do in that situation.
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