Distinguishing Trecarrel

23rd June 2022 Commercial Litigation

Again, showing that despite the furore about the White Paper there is a lot of other things going on, an important decision has been made relating to gas safety certificates.

One of the most critical changes in the Deregulation Act 2015 was to impose restrictions on the service of section 21 notices where a landlord had not provided a tenant with a valid gas safety certificate. Actually, it was more complex than this as the obligation is to provide a tenant with a valid gas safety certificate before the tenant first occupied the property. This created a problem where a landlord did not do this as it was not something that could be fixed. A tenant could not occupy a property for the first time twice. The Court of Appeal in Trecarrel House Ltd v Rouncefield has created a way out, of sorts, by holding that where a landlord had a gas safety certificate but had merely not provided the tenant with a copy then that would be acceptable as compliance provided a valid GSC was provided before the s21 was served.

This left open the question of what the law was if there simply was no GSC when the tenant moved in and one was obtained later. It is this question that a HHJ Bloom, a Circuit Judge sitting in Luton County Court has now had to answer.

HHJ Bloom was clear that the gas safety regulations have obligations due to new and existing tenants. The obligation to new tenants is to give them a GSC before they occupy the property. This is not something that can be done later. He drew a clear distinction between the more minor failure of having a GSC but not providing it and the more serious safety violation of simply not having one at all. In that case there is nothing that can be done to resolve the issue and a landlord simply cannot rely on a s21 notice at all.

This is a decision of a Circuit Judge and so it is not binding other than on more junior judges in Luton. But these decisions have a way of getting about just as the decision in Trecarrel did before it reached the Court of Appeal.

It may all be slightly irrelevant in that the White Paper is proposing to get rid of s21 and there is no plan to apply the restrictions relating to s21 notices to any other form of possession notice. So eventually this issue will disappear. In the meantime, it is likely to pose concerns for some landlords. These will not all be landlords who have been dilatory and failed to comply with their GSC obligations. It may also include landlords who have inherited property with tenants in place and administrators or receivers who have taken control of tenanted property with incomplete records. Trecarrel will not be proceeding to the Supreme Court as they have declined to hear the case and so there will be no further clarity from that quarter. It may be that this case will be appealed further. If it is not there will be a collection of landlords who will be nervous about the validity of their s21 notices.

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David Smith is a Partner located in Londonin our Commercial Litigation department

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