Serving a Section 21: Importance of gas safety certificates

Tue 4th Apr 2023

Two high-profile cases have highlighted the importance of having appropriate gas safety certificates before serving a Section 21 notice, as Hayley Gaffney from our personal disputes team explains…

All landlords must be aware of the legal requirement of having a valid gas safety certificate at the start of an assured shorthold tenancy agreement and therefore before serving a Section 21 notice. Two, different high-profile cases have highlighted just how important this is.

There can be a lot of uncertainty about up-to-date certificates, when they need to be provided and what role they play in serving a Section 21 notice.

So, when can a Section 21 notice be served and what requirements need to be in place?

What is a Section 21 notice?

In brief, a Section 21 notice can be used to evict an assured shorthold tenant without needing a reason, hence they are commonly referred to as ‘no fault’ evictions. However, these can only be issued at certain points and there are exemptions to the ability to serve such notices. You cannot use a Section 21 notice to evict a tenant if you have not supplied them with copies of certain documents, including:

  • An up-to-date Energy Performance Certificate (EPC).
  • The government’s ‘How to Rent’ booklet.
  • And valid gas safety certificates.

The law states that an EPC and ‘How to Rent’ booklet must be supplied before the start of an assured shorthold tenancy. The gas safety certificate must also be given to the tenants before they begin renting the property.

For now, Section 21 remains in place. However, it is important to know that in the proposed Renters Reform Bill, Section 21 could be abolished removing ‘no fault’ evictions.

Gas safety certificates

The gas safety regulations surrounding tenancies were set out in the Gas Safety (Installation and Use) Regulations 1988.

Landlords are required to carry out annual gas safety inspections on their properties. They must supply a copy of the gas safety certificate to tenants within 28 days of those inspections.

Importantly, the current certificate relevant at the date of commencement of the tenancy, needs to be supplied to tenants before they occupy the property.

Landlords cannot serve a valid Section 21 notice if they have not adhered to these regulations by providing tenants with valid gas safety certificate(s).

There has, historically, been some confusion about whether a valid Section 21 Notice can be served in circumstances where one was available at the start of the tenancy but not served until shortly before a Section 21 Notice was issued.

The law was somewhat unclear on this until Trecarrell v Rouncefield [2020].

Relevant Cases

Trecarrell House v Rouncefield

In 2020, we saw the case of Trecarrell House v Rouncefield. When Ms Rouncefield started her tenancy in February 2017, she was not supplied with a gas safety certificate although, importantly, one had been undertaken and was available. It had just not been provided to her at the start of the tenancy. Ten months later in November 2017, Ms Rouncefield was supplied with an up-to-date gas safety certificate dated January 2017.

In May 2018, Trecarrell House served a Section 21 notice on Ms Rouncefield. Court proceedings later commenced and, in defence of that possession claim, Ms Rouncefield stated that the notice was invalid on the basis that she had never been served a gas safety certificate before her tenancy started.

Initially, Trecarrell was successful in obtaining a possession order and the defence was dismissed. Ms Rouncefield appealed this decision, and the case was heard at appeal in Truro County Court. This time, in contrast, the judge considered that Trecarrell House should have served Ms Rouncefield with the gas certificate before occupation and, as such, the Section 21 Notice was deemed invalid.

Trecarrell House then took the case to the Court of Appeal in January 2020. They believed that Section 21 was valid, as the gas safety certificate predated the start of the tenancy and, while it was not served until shortly before the Section 21 Notice, it had been available at the time the tenancy commenced.

The majority decision of the Court of Appeal was that a Section 21 notice can still be validly served, provided that a valid gas safety certificate is in place before the start of a tenancy. The initial gas certificate, as well as any more recent ones, also need to be served to the tenant before the Section 21 notice. Provided that landlords can therefore prove that 1) there was a gas safety certificate in place prior to commencement of the tenancy and 2) that the relevant certificates had been served on the tenant prior to service of the Section 21 Notice, then the notice was valid.

Byrne v Hardwood-Delgado

In the case of Byrne v Hardwood-Delgado [2022], the tenant was not supplied with a gas safety certificate when moving in, similarly to Trecarrell House v Rouncefield. However, by contrast, when the landlord supplied the gas certificate three months after the tenancy began, the certificate was dated 16 September 2019 – a month after the tenant moved in. There had been no valid gas safety certificate in place when the tenancy started.

At this time the landlord also supplied an EPC from 2013 and a ‘How to Rent’ leaflet. It was in November 2020 that the landlord served a Section 21 notice which initiated the court proceedings.

When the case started on 5th January 2022 it was initially decided that the Section 21 Notice was valid. The tenant was allowed to appeal the decision and it was heard in May 2022. Byrne v Hardwood-Delgado referenced the Trecarrell v Rouncefield case, however the judge found the two cases had a distinguishable difference – namely, the fact that a gas safety certificate was available at the start of the tenancy.

Trecarrell House’s case was put down to the landlord’s error of procedure. The gas safety checks were still made to ensure the safety of the property before the start of the tenancy.

In the case of Byrne v Hardwood-Delgado, no gas safety record had been undertaken prior to the start of the tenancy or at the date the tenant moved in. The landlord had not carried out the required safety checks needed to ensure that the property was safe to rent.

The judge’s conclusion in June 2022 was that the landlord’s Section 21 notice was invalid. Their reasoning was ‘ascribed to the importance of protecting a tenant’s right to live in a safe property.’ If a landlord could obtain a gas safety record to satisfy the legal requirements of serving a Section 21 the next day – these rights would be violated.

The landlord was prevented from serving any further Section 21 notices for the remainder of the tenancy.

This highlights the important distinction: while gas safety certificates can be served retrospectively to enable a landlord to serve a valid Section 21 Notice, there must be one in place at the start of the tenancy.

If not, that failure can mean a landlord is unable to ever serve a Section 21 Notice and it is much more difficult for them to remove those tenants from the property.

Advice for landlords

These two cases are great examples of just how complex the law surrounding residential tenancies can be. Ultimately, they demonstrate that a gas safety certificate can be validly served retrospectively even if it was not supplied at the start of the tenancy. This is provided that the gas safety certificate exists prior to the tenancy date.

It is important to note that every case is different and small breaches or errors can lead to massive consequences. Landlords should get legal advice when it comes to serving Section 21 notices. Having legal representation for the resulting proceedings can also ensure that the process runs smoothly.

If you are a landlord looking for more help or legal advice around Section 21 notices and gas safety certificates or any other matters involving residential tenancy agreements or disputes, contact Hayley Gaffney by email or call 0800 328 3282.

Tue 4th Apr 2023

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