Section 21 Notices & Regaining Possession

Section 21 Notices and Regaining Possession: Gas Safety Certificates and The Trecarrell case

It is important for any landlord to be able to have the ability to regain possession of a property at the end of the fixed term of an assured shorthold tenancy. Serving a Notice pursuant to section 21 Housing Act 1988 (as amended) is the route followed to evict a tenant on a "non-fault" basis i.e. where a landlord simply wants his/her property back. It may be that they wish to sell, let to someone else, or want it to live in themselves. It doesn't matter- because under the section 21 regime, there is no requirement to prove fault on the tenant's part.

However, there are various requirements that must be met before a valid section 21 notice can be served. One of those requirements pursuant to Regulation 36(6)(b) the Gas Safety (Installation and Use) Regulations 1998 is that a landlord must serve the tenant with a valid gas safety certificate before the tenant moves into the property.

In Caridon Property Limited v Monty Shooltz (2018), it was held that as the landlord did not serve the tenant with a copy of the latest gas safety certificate before the tenant moved in, the landlord could never serve a valid section 21 notice, which meant the landlord would permanently lose his ability to rely on the no-fault route of obtaining possession. Based on this decision the only way a landlord would ever be able to obtain possession would be where the tenant(s) breached any of the tenancy conditions such as the requirement to pay rent or to keep the property in a reasonable state of repair. This was therefore a draconian decision by the Court.

However, the very recent Court of Appeal decision in the case of Trecarrell House Limited v Rouncefield (2020), has now held that a landlord's failure to provide the gas safety certificate before the tenant went into occupation, does not permanently preclude that landlord from serving a valid section 21 notice. It was held that a valid notice could be served provided the certificate was given to the tenant before service of the Section 21 Notice. In her judgment Lady Justice King also noted that a landlord has no actual obligation to provide the gas safety certificate prior to the granting of the tenancy as the right to see this arises only once a person became a tenant

This decision is clearly welcomed by landlords as they will no longer be permanently barred from serving a valid section 21 notice to obtain possession for what was a simple administrative reason. Landlords must remember though that there are a number of prescribed documents other than a gas safety certificate that must be served on a tenant before a section 21 Notice can be served including an Energy Performance Certificate and the 'How to Rent' Checklist for England and Wales. Ideally these should be served at the outset of the tenancy.

For more advice on this subject please contact Kristy Ainge or John French on 02476 632121 or email them on KJA@bandhattonbutton.com or JNF@bandhattonbutton.com