Landlords reminded to watch the small print
Landlords are breathing a sigh of relief over the news that a court has allowed an eviction notice despite a copy of the gas safety certificate not being provided before the tenancy started.
But experts are warning that attention to the small print is essential if landlords are to avoid problems in future when they are looking to regain possession under what is known as the Section 21 procedure.
Section 21 of the Housing Act 1988 provides landlords with a route to possession against an assured shorthold tenant for any reason, not just when a tenant has defaulted or otherwise breached their tenancy. But a section 21 notice (a 2 month notice for possession (although 3 months notice are required to be given at present due to the coronavirus pandemic)) cannot be served on a tenant if the landlord is in breach of any of the prescribed requirements.
Those include giving tenants a copy of an up to date gas safety certificate, the energy performance certificate – commonly known as an EPC , and the current version of the authorised ‘How to Rent’ booklet.
In the recent case of, Trecarrell House Limited v Rouncefield, the landlord had a valid gas safety certificate in place but failed to provide a copy when the tenancy commenced in February 2017. When the landlord served a section 21 notice in May 2018, the tenant refused to move out and the landlord’s claim for possession was heard in the County Court. Initially, the landlord was successful in obtaining the order for possession, but the tenant successfully appealed on the grounds that they had not received a gas safety certificate before moving in.
This was in line with an earlier case involving a similar situation. Caridon Property Ltd v Monty Schooltz had previously ruled that a landlord’s failure to provide the gas safety certificate before the tenant occupied the property was a breach that could not be rectified later.
But when the landlord in this latest case was given permission to appeal, the Court of Appeal ruled by a majority in his favour. This means that as long as a gas certificate is in force before a tenant occupies a property, and that certificate together with those for any subsequent period are provided before a section 21 was issued, then that will be acceptable.
The Court of Appeal also considered whether a failure to carry out a gas safety inspection within the time limit required by gas safety regulations could invalidate a section 21 notice. They ruled that a landlord could still serve a valid section 21 notice even where a gas safety inspection has been undertaken late, as long as a copy was provided before serving the section 21 notice, and as long as other prescribed requirements had been satisfied.
Explained our Landlord Law expert, Paul Reader: “This will be welcome news to landlords, as it allows for administrative errors to be rectified and section 21 notices to be served. But it should not be interpreted as any lessening of the prescribed requirements, and it’s still important to follow good practice procedures as closely as possible.
An administrative error of failing to provide a copy of a valid gas safety certificate at the start of the tenancy is one thing, but failing to have a valid safety inspection in place is quite another. Similarly, a delay on undertaking a subsequent inspection at the right time may be acceptable, particularly where tradesmen have not been able to visit premises during lockdown, but the judgement is not a licence to abandon such responsibilities.”
He added: “If landlords wish to avoid challenges in when they need to regain possession of a property under the section 21 procedure, they should ensure that they have provided the tenant with the required documentation when the tenancy has been agreed, and before they move in.”
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The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.