Trecarrell House Limited v Rouncefield has been a long-awaited Court of Appeal decision, but does it provide the clarity needed surrounding provision of GSRs and the impact this has on being able to use section 21 notices to evict tenants?
Worryingly, both the first Trecarrell appeal decision and Caridon Propety Ltd v Monty Shooltz decided that service of a GSR is not retrospectively rectifiable insofar as eviction is concerned, meaning that if a landlord had not served a GSR on the tenant before he/she takes up occupation, a section 21 notice will be invalid, even if a valid GSR is subsequently provided.
What does the legislation say and how did the Court of Appeal in the Trecarrell case interpret it?
What the legislation says
The legislation applies in respect of tenancies entered into from 1 October 2015 and the relevant provisions are as follows:
– Section 21A of the Housing Act 1988 (“Section 21A”) makes clear that at a time when the landlord is in breach of the steps required by regulation 2 of The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (“Regulation 2”), he/she cannot serve a valid section 21 notice.
– Regulation 2 requires, amongst other things, that the landlord must provide the tenant with a valid GSR in accordance with paragraphs 6 or 7 of regulation 36 of the Gas Safety (Installation and Use) Regulations 1998 (the “Gas Safety Regulations”), but that for the purposes of Section 21A, and the ability to serve a valid section 21 notice, this requirement 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…does not apply’ (Regulation 2(2)).
– The 28-day period comes from the Gas Safety Regulations, which require:
- At 36(6)(a) that an existing tenant must be given a GSR made pursuant to 36(3)(c) within 28 days of the date of the check; and
- At 36(6)(b) that a new tenant must be given a copy of the last GSR made in respect of the property before he/she occupies the property.
– The Gas Safety Regulations also state at 36(3)(a) that gas checks must be made on a 12-monthly basis and subsequent GSRs made up, containing the information required by 36(3)(c).
The fact that Regulation 2(2) states that the compliance with the 28-day period does not apply insofar as GSRs are concerned certainly implies that as long as the landlord has given the tenant a copy of the valid GSR at some point during the tenancy, he can serve a subsequent section 21 notice which is considered valid as per Section 21A.
That being said, there is complication in that only 36(6)(a) of the Gas Safety Regulations refers to the 28-day time period for compliance, so what happens if the landlord does not comply with 36(6)(b)? Regulation 2(2) cannot dispense with a 28-day time period that does not exist, and if the legislation had intended to disapply the “before the tenant goes into occupation” time period integrated into 36(6)(b), why did it not make this clearer? All things considered, though, if no qualification is also made to 36(6)(b) in respect of serving section 21 notices then we end up with a disparate and unsatisfactory position, which is that:
- As long as landlords serve updated GSRs on existing tenants before serving notice, valid notice can be served; but
- if a new tenant is not given a gas safety record before they move in then this is fatal to ever serving a section 21 notice.
What the Court of Appeal in Trecarrell said
Late service
The Court of Appeal decided on a 2:1 majority that the correct approach must be that where Regulation 2(2) states that the requirement to serve a GSR ‘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…does not apply’, the section ‘limited to the requirement…to give a copy of the…record to the tenant’ must apply to both 36(6)(a) and 36(6)(b) and the reference to the 28-day period must relate purely to 36(6)(a). In short, this means that although the tenant must be provided with a valid GSR, none of the time limits apply.
The majority’s opinion was that:
- the disapplication of the 28-day time limit confirms that Regulation 2 was not intended to penalise landlords as strenuously as the Gas Safety Regulations themselves, for which there are separate criminal sanctions.
- Providing the GSR late should not be an instant breach of Section 21A because the tenant is still given the information it needs.
The dissenting judge stated that there is a policy justification for not allowing retrospective rectification 36(6)(b), however; and is not failing to comply with 36(6)(b) worse than a failure to comply with 36(6)(a)? If a tenant is given a valid GSR on moving in, and then given a subsequent update late, may this be seen as less severe than a tenant not being given a valid GSR before entering occupation, given that this would mean they may have no idea of the gas safety of the property before embarking on the tenancy? This question appears to flag up a valid reason for not agreeing with the majority decision, but the fact that taking the alternative stance would forever bar the landlord from serving a section 21 notice is damning.
Carrying out a late check
As stated above, 36(3)(a) of the Gas Safety Regulations requires a 12-monthly check and subsequent GSR ((3)(c)). Because of this, it was argued in Trecarrell that a failure to keep up with this timescale means that the landlord is instantly unable to comply with the requirement to provide the GSR to the tenant, pursuant to 36(6)(a), even with the disapplication of the time period for compliance, because the GSR given would not be a valid GSR as is required by 36(3)(c), and 36(6)(a) requires that the GSR provided is the one made pursuant to 36(3)(c).
This interpretation was not persuasive to the court, which is not surprising, given that the effect of this would mean that if a GSR was made off the back of a late check then a literal reading of 36(6)(a) would mean that a landlord would never be required to provide the GSR to the tenant, which is clearly not what was intended by the Gas Safety Regulations or Regulation 2.
The Court of Appeal confirmed the position with the following, ‘I am not persuaded that a failure to carry out the next safety check within 12 months of the last one means that the landlord cannot comply with paragraph (6)(a) as a prescribed requirement if he serves the tenant with a copy of the record once the check has been carried out.’
No available GSR at the start of the tenancy
Whilst the above quotation clarifies the position in respect of 36(6)(a) and provision of updated GSRs to existing tenants, it does leave questions in respect of 36(6)(b) and new tenants.
What is the position where the landlord has failed to keep up with his gas safety checks regularly enough, or at all, such that at the beginning of the tenancy the GSR is out-of-date, or completely non-existent, and therefore no provision of a valid GSR in respect of the beginning of the tenancy is possible, even retrospectively? Does the non-existence of a valid GSR at the outset of the tenancy scupper the ability to provide a GSR late in order to serve notice?
Specifically, 36(6)(b) states that landlords must ensure that ‘a copy of the last record made in respect of each appliance…is given to any new tenant of premises to which the record relates before that tenant occupies those premises’. It is understood that the time limit is disapplied such that the “last record” can be given to the tenant after occupation, but does such “last record” still have to be one which covers a gas check for the period before and during the tenant’s entry into occupation, or can it also refer to a GSR made after the tenant moves in, as well as retrospectively served? The judgment is not clear on this point.
Outstanding factual issue
The Court of Appeal has referred the case back to the County Court for determination in respect of whether a subsequent GSR was given to the tenant prior to the service of notice. The final determination of the appeal will be heard after this factual dispute is clarified.
Points to note
- Landlords must provide tenants with a valid GSR before serving a section 21 notice, although this does not have to be within 28 days of a check, or before the tenant enters occupation, for the notice to be validly served. The majority decided that the disapplication of time limits applies to both 36(6)(a) and (6)(b) equally.
- It seems sensible that before serving notice any GSR relating to the period before and during the tenant’s entry into occupation should be provided, in addition to any subsequent GSRs that have been carried out.
- The position is not clear as to whether lack of a valid GSR covering the beginning of occupation will prevent service of valid notice, even if the landlord does the next best thing and has a check done during the tenancy period and then provides this to the tenant.
Of course, the best approach for landlords to take is to always make sure that they keep on top of GSRs (there are separate criminal sanctions under the Gas Safety Regulations for not doing so) and to provide these to tenants alongside draft tenancy agreements as a matter of course. Failure to keep organised in respect of gas safety means treading into territory that is still not without complication, even after the Trecarrell Court of Appeal judgment.