Section 21 and Gas Safety Record Before Occupation

The long-awaited decision from the Court of Appeal for Trecarrell House Ltd v Rouncefield (2020) EWCA Civ 760 (18 June 2020) has been published. 

This case is critical because it considers whether a section 21 notice can be served if a gas safety record was not given to a tenant before occupation. 

It was previously held in the first appeal of Caridon Property Ltd v Monty Shooltz. Central London County Court. 2 February 2018 that if a gas safety record was not given before occupation, the landlord was permanently barred from ever serving a section 21 notice. 

In the long-awaited Court of Appeal case, a flat was let to Ms Rouncefield under a six months assured shorthold tenancy from 20 February 2017. No gas safety record had been provided before the tenant began to occupy the premises in February 2017, nor had the record been displayed in a prominent position at that time (there was no gas appliance in these premises as hot water was supplied from a communal boiler so displaying prominently is an acceptable substitute). 

However, a valid gas safety record for this period and a copy of the record dated 31 January 2017 were given to the tenant on 9 November 2017. 

A further gas record was produced to the court, which had a date of inspection of 2 February 2018 (note: this second gas record is two days late as it should have been completed by 31 January 2018). 

On 1 May 2018, the landlord served a section 21 notice on the tenant. 

Some questions were raised in this appeal and for a more detailed analysis, see this excellent NearlyLegal article on this case. 

However, the main question for our article and readers is whether the failure to give (or display prominently if no gas appliance on the premises) was fatal to the section 21 notice dated 1 May 2018. The answer is no, and it is not fatal. The notice would be valid if it were given to the tenant before service of the section 21 notice. 

However, that’s not the end of the story! 

In this case, you will recall that the second gas safety record was two days late. Did that render the section 21 notice invalid? Answer: no. Similarly, as long as a copy of the gas safety record was given before service of the notice, section 21 would be valid - even if the record was late in being completed.

 At para 35, Lord Justice Patten said:

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.

However, in this case, the landlord still does not know if they have possession! 

This is because the record provided to the court dated 2 February 2018 could not be shown to have been given (or displayed prominently) before section 21 was served on 1 May 2018. 

This part of the appeal has been remitted to the county court for consideration. If the gas safety record of 2 February 2018 was given or displayed prominently before 1 May 2018, section 21 is valid, and possession will be ordered. Still, possession will be refused if it is not given nor displayed prominently. 

As the NearlyLegal article comments, there are questions raised from this decision. For example, what if no gas safety record was active on the tenant's move-in? For example, what if the record completed on 2 February 2018 was the first record in a couple of years? 

We will no doubt have to wait for further appeals dealing with this specific question to arise before we know the answer. Is it just a requirement that a single active gas safety record is given to the tenant before a section 21 notice is served? Or, is both a valid record before the tenancy starts AND a valid record before a section 21 notice be given to the tenant before service?

Quite how the latter would work if a tenant has been in three or more years remains to be seen. The gas safety regulations only require keeping a copy of a record for two years. One interesting point is that giving a copy of the gas safety record with and at the same time as the section 21 notice seems acceptable. 

We always preferred the gas safety record (and other requirements) before serving the section 21 notice. 

At para 37:

… If she received it [gas safety record] before or with the s.21 notice then the claimant’s appeal must be allowed. If she received it after service of the s.21 notice then the appeal must be dismissed for that reason alone.