SUMMARY: THE COURT OF APPEAL HAS COME TO THE AID OF LANDLORDS BY ALLOWING SECTION 21 NO FAULT EVICTIONS TO PROCEED, IN CIRCUMSTANCES WHERE A LANDLORD HAS FAILED TO PROVIDE A GAS SAFETY CERTIFICATE TO A TENANT PRIOR TO THE TENANT’S OCCUPATION OF THE PROPERTY (PROVIDED THE CERTIFICATE IS SERVED WITH OR BEFORE THE SECTION 21 NOTICE).
1. RELEVANT LEGISLATION AND REGULATIONS
HOUSING ACT 1988 [AS AMENDED BY THE DEREGULATION ACT 2015]
21A Compliance with prescribed legal requirements
(1) A notice under subsection (1) or (4) of section 21 may not be given in relation to an assured shorthold tenancy of a dwelling-house in England at a time when the landlord is in breach of a prescribed requirement.
(2) The requirements that may be prescribed are requirements imposed on landlords by any enactment and which relate to-
(b) the health and safety of occupiers of dwelling-houses
21B Requirement for landlord to provide prescribed information
(1) The Secretary of State may by regulations require information about the rights and responsibilities of a landlord and a tenant under an assured shorthold tenancy of a dwelling-house in England (or any related matters) to be given by a landlord under such a tenancy, or a person acting on behalf of such a landlord, to the tenant under such a tenancy.
(3) A notice under subsection (1) or (4) of section 21 may not be given in relation to an assured shorthold tenancy of a dwelling-house in England at a time when the landlord is in breach of a requirement imposed by regulations under subsection (1).
REGULATION 2 OF THE ASSURED SHORTHOLD TENANCY NOTICES AND PRESCRIBED REQUIREMENTS (ENGLAND) REGULATIONS 2015 (“Regulation 2”)
(1) Subject to paragraph (2), the requirements prescribed for the purposes of section 21A of the Act are the requirements contained in –
(b) paragraph (6) or (as the case may be) paragraph (7) of regulation 36 of the Gas Safety (Installation and Use) Regulations 1998(3) (requirement to provide tenant with a gas safety certificate).
(2) For the purposes of section 21A of the Act, the requirement prescribed by paragraph (1)(b) is limited to the requirement on a landlord to give a copy of the relevant record to the tenant and the 28 day period for compliance with that requirement does not apply.
1998 GAS SAFETY (INSTALLATION AND USE) REGULATIONS – REGULATION 36 (“regulation 36”)
(2) Every landlord shall ensure that there is maintained in a safe condition-
(a) any relevant gas fitting; and
(b) any flue which serves any relevant gas fitting,
so as to prevent the risk of injury to any person in lawful occupation or(sic) relevant premises.
(3) Without prejudice to the generality of paragraph (2) above, a landlord shall –
(a) ensure that each appliance and flue to which that duty extends is checked for safety within 12 months of being installed and at intervals of not more than 12 months since it was last checked for safety….
(c) ensure that a record in respect of any appliance or flue so checked is made and retained for a period of 2 years from the date of that check, which record shall include the following information…
(6)…every landlord shall ensure that-
(a) a copy of the record made pursuant to the requirements of paragraph 3(c) above is given to each existing tenant of premises to which the record relates within 28 days of the date of the check; and
(b) a copy of the last record made in respect of each appliance or flue is given to any new tenant of premises to which the record relates before that tenant occupies those premises save that, in respect of a tenant whose right to occupy those premises is for a period not exceeding 28 days, a copy of the record may instead be prominently displayed within those premises.
- Ms Rouncefield was the defendant and tenant of Flat 2, Trecarrell House, Carthew Terrace, St Ives in Cornwall (“the flat”) pursuant to an assured shorthold tenancy agreement dated 20 February 2017 (“AST”), to which the provisions of section 21 of the Housing Act 1988 applied.
- The claimant, Trecarrell House Limited, was the landlord and owner of the flat.
- The flat was provided with central heating and hot water by means of a gas boiler, which was housed elsewhere in the building. There were no gas appliances or gas pipes within the flat.
- It was common ground that under section 21(1) the Housing Act 1988, the landlord could obtain possession of the flat by giving the tenant at least two months’ notice in writing stating he required possession. No fault need be established and/or a determination by a court whether it was reasonable for possession to be granted to the landlord.
- The claimant served a section 21 notice on the Ms. Rouncefield on 1 May 2018.
- At the time the tenancy was granted in February 2017, Ms. Rouncefield was not provided with a copy of the gas safety certificate (“GSC”).
- A copy of the GSC was provided on 9 November 2017 and was dated 31 January 2017; thus, although the GSC was current at the date the tenancy was granted, it was out of date when the section 21 was served, being 15 months later.
3. JUDICIAL HISTORY
- On 13 September 2018, the landlord sought a possession order from the Truro County Court, under the accelerated possession procedure.
- District Judge Rutherford held that regulation 36 was not applicable, either because there was no gas appliance in the flat or because the time limit prescribed in regulation 36(6)(b) for the provision of the GSC (“before the tenant occupies the property”) was not a bar to late compliance; in the present case on 9 November 2017.
- Ms. Rouncefield appealed, which was heard by HH Judge Carr on 13 February 2019.
- On appeal it was common ground that the gas safety regulations did apply where the property was served by an external gas boiler; the issue on appeal was whether the landlord could rely on its section 21 notice as it has not served the GSC before the tenant’s occupation of the property.
- Judge Carr, adopting and relying on the reasoning of HH Judge Luba QC in the Caridon Property Limited v Shooltz case found the landlord could not.
- The judge considered the reasoning and strict interpretation of the regulations by learned Judge Luba and adopted the same; namely to ensure gas safety checks were carried out by landlords and appliances found to be safe to the satisfaction of tenants on moving into properties.
- Tenants should have the assurance of living in a safe environment. Any other interpretation would leave it open to landlords to utilise this fault free means of evicting tenants, even where the landlord may have let dangerous and unchecked premises in breach of the Gas Safety Regulations.
4. PRESENT APPEAL & MAJORITY JUDGMENT OF LORD JUSTICE PATTEN, LADY JUSTICE KING AND LORD JUSTICE MOYLAND
- The court found that late compliance with the landlord’s obligation to provide, or display a GSC after each annual check pursuant to regulation 36(6)(b) of the Gas Safety Regulations was not in itself a bar to serving a subsequent section 21 notice.
- The argument that Regulation 2 (2) did away with the requirement to provide a GSC before occupation; thus omitting the application of regulation 36(6)(b) in its entirety was rejected by the court; such an interpretation made no policy sense - why would Parliament require a landlord to provide a GSC to existing tenants but not new ones.
- As for the fundamental issue, namely the time limits for providing the initial GSC, the court took in to account that there were other sanctions which applied to landlords who failed to comply with the Gas Safety Regulations; namely the potential for criminal liability.
- The prohibition on relying on a section 21 notice was thus merely a collateral sanction, rather to spur compliance with the Gas Safety Regulations; the provision thus had to be read and interpreted in such a context.
- The court considered other sanctions, such as a failure to lodge a tenant’s deposit and noted that these could be remedied so as to end the prohibition on no fault evictions – it thus begged the question why the present couldn’t be.
- The court acknowledged that the point was not straightforward, but was ultimately not satisfied that Parliament had intended to outlaw service of a section 21 notice in all circumstances and indefinitely where a landlord had failed to comply with the initial requirement to provide a tenant with the GSC prior to occupation; the prohibition on relying on section 21 only lasted so long as the landlord was in breach of the Gas Safety Regulations.
- The matter was thus remitted to the County Court to determine when Ms. Rouncefield had received the GSC, as it was contended she had not received it when the section 21 was served. The appeal to be disposed of when the finding of fact had been made on the basis that if she received it before or with the section 21 notice then the claimant’s appeal would be allowed, failing which it would be dismissed.
It appears the court of appeal has adopted a more flexible statutory interpretation than the lower courts, such that an anticipated judgment has been reached.
LARA MCDONNELL © 2020
33 BEDFORD ROW
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