Trecarrel case on section 21 and gas safety certificates finally resolved

April 14, 2022

Royal Courts of JusticeAll landlords whose properties have gas heating will be aware (or should be aware!) of the gas safety regulations requiring them to serve a gas safety certificate on all new tenants, and annually thereafter.

The Deregulation Act 2015 linked these regulations to section 21 making it a requirement for serving a valid section 21 notice that a gas safety certificate had been served on tenants before they moved in.

The Trecarrel case concerned a situation where a landlord had served the notice late (although before the service of the section 21 notice). 

Was this enough to satisfy the new rules?

The Court of Appeal Decision

After a hearing in 2020 the Court of Appeal decided that as the landlord did actually have a certificate this would be sufficient and a late service will not be fatal to a section 21 claim.

The tenant sought to overturn this decision at the Supreme Court but the Supreme Court has now rejected the tenants’ application meaning that the Court of Appeal decision will stand.

Anthony Gold acted for the landlord, and solicitor Sarah Cummins said:

The Court’s decision will be welcomed by private sector landlords who feared that a failure to provide the gas safety certificate before occupation permanently prevented them from recovering possession of their properties,”

It has been nearly two years since the Court of Appeal’s judgment and the Supreme Court’s decision to refuse to hear the tenant’s appeal now brings some certainty to this difficult area of law.

There is no requirement for the Supreme Court to explain its reasons, but it may be that the promised abolition of section 21 notices played some role in the court’s decision to refuse permission to appeal.

Anyone wanting to know more about the Court of Appeal decision should watch the interview with barrister Justin Bates which you will find on YouTube here.

Outstanding issues

As the landlord in the Trecarrel case had actually obtained a Gas Safety Certificate when the tenant moved in, the case does not deal with the situation where the Landlord had not actually obtained his certificate until later. 

Will this mean that section 21 cannot be used at all in that situation? (Which will effectively turn the tenancy into an assured rather than an assured shorthold tenancy).

There may also be problems where landlords of tenancies longer than two years, have failed to hang on to their certificates (as the regs only require them to be kept for two years) meaning that proving compliance may be difficult. 

So always keep your certificates and proof of service on the tenants until the tenancy ends!

The Landlord Law report on the case is here.

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