Gas Safety Certificates - Court of Appeal Decision Trecarrell House Limited v Patricia Rouncefield [2020] EWCA CIV 760

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.

 2. FACTS

 3. JUDICIAL HISTORY

4. PRESENT APPEAL & MAJORITY JUDGMENT OF LORD JUSTICE PATTEN, LADY JUSTICE KING AND LORD JUSTICE MOYLAND

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

BARRISTER

33 BEDFORD ROW

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