Pre-tenancy gas certificates and its implications for Section 21 Notices
This was a case where the initial pre-tenancy Gas Safety Certificate was not just served late but was fundamentally non-compliant.
The landlords had arranged for a Gas Safety check prior to the tenancy commencement date in May 2021. The tenants received a copy of the first Gas Safety Certificate but this initial certificate failed to provide the landlord’s full name and address.
The landlords carried out a further Gas Safety Certificate in both 2022 and 2023, these were both fully compliant.
A Section 21 Notice was served in 2024. The tenants argued that the notice was invalid because the initial Gas Safety Certificate was non-compliant, which should prevent the landlords from ever being able to recover possession through the Section 21 process.
In deciding whether to grant a Possession Order, the Judge looked at the case of Trecarrell House v Rouncefield (2020) where it was found that the failure to serve a Gas Safety Certificate on time could be cured by the late service of a further compliant Gas Safety Certificate.
The Judge looked at whether the “curing” principle in Trecarrell could be extended where the landlord holds a defective Gas Safety Certificate but also holds two further compliant Gas Safety Certificates which are in line with regulations.
The Judge found that the omission of the address constituted a breach of the regulations. However, he formed the view that this was at the minor end of the scale of breaches and that because they had then served further Gas Safety Certificates in 2022 and 2023 that they were compliant. A Possession Order was therefore granted.
The tenant appealed the decision. The Appeal Court upheld the initial possession order and concluded that the failure regarding the initial Gas Safety Certificate was not fatal because of the subsequent compliance.
The court reasoned that a proper construction of the statutory scheme indicates that Parliament did not intend for a landlord to be barred from using Section 21 indefinitely due to an initial, unrectified error, especially after subsequent compliant checks had been completed.
The court concluded that the relevant legal obligations permitting a Section 21 notice to be served are compliance with the prescribed requirements in relation to at most, the two most recent checks before the notice is served.
What does this mean for Landlords?
This case provides some form of guidance on when an initial defective Gas Safety Certificate may be rectified by subsequent compliance checks.
The ability of a landlord to serve a Section 21 notice is dependent on compliance with “prescribed requirements,” notably those outlined in the Gas Safety Regulations and Section 21A of the Housing Act 1988 prevents a landlord from serving a notice if they are in breach of a prescribed requirement.
It was believed that landlords would need to evidence compliance with valid gas safety certificates from the date the tenant went into occupation and provide confirmation of service of each valid gas safety certificate.
The result of this case is that as long as a landlord has served the last two Gas Safety Certificates and they are strictly compliant, they should be able to proceed with a Section 21 notice, even if a previous gas safety certificate contained a remediable defect.
The safest course of action still however remains to ensure that the first Gas Safety Certificate and all subsequent certificates are fully compliant and served correctly.
At Scarton Law, we help landlords across Hull, Leeds, East Yorkshire and the UK navigate the eviction process clearly and correctly. Whether you need help drafting a notice, issuing a court claim, or recovering unpaid rent, we’re here to support you every step of the way.
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