Evicting a Residential Tenant – What to take Notice of?

A notice pursuant to Section 21 of the Housing Act 1988 (“the s.21 Notice”) is often used to start the legal process to end an assured shorthold tenancy.  The s.21 Notice is often referred to as a “no fault” notice as the tenant does not have to be in breach of the terms of the tenancy agreement for the s.21 Notice to be served.  However, the s.21 Notice cannot be served giving a determination date any earlier than the contractual determination date in the tenancy agreement.  Further, the s.21 Notice will only be valid if the requisite documents such as the tenancy deposit certificate, gas safety certificate, energy performance certificate and the Government’s How to Rent Handbook, have been served on the tenant, prior to service of the s.21 Notice.

The requirement to serve a gas safety certificate is contained within Regulation 36(5) of the Gas Safety Regulations and provides that it is a statutory requirement for every landlord to ensure that a copy of the gas safety certificate is:

(a)     given to each tenant of the premises to which the record relates, within 28 days of the date of the gas check; and

(b)     a copy of the last record is given to any new tenant before that tenant occupies the premises with the exception of tenants whose occupation is for less than 28 days in which case a copy of the certificate may be displayed in a prominent place in the premises.

However, Regulation 2(2) of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (“the AST Regulations”) states that the time limit for compliance with Regulation 36(5) of the Gas Safety Regulations does not apply.

There is clearly some confusion between the Gas Safety Regulations and the AST Regulations regarding the service of gas safety certificates and it was, therefore, not surprising that the question as to when the gas safety certificate should be served, would be a contentious area.

The first time that this was considered was in the case of Caridion Property Ltd v Monty Shooltz [2018] where the District Judge in the first instance held that as the gas safety certificate had been served on the tenant some 11 months after the tenancy commenced, the s.21 Notice was, therefore, invalid and the Landlord’s claim for possession was dismissed.  The landlord appealed, however, the decision of the District Judge was upheld, with the Court finding that:

• the Gas Safety Regulations must be complied with at the commencement of the tenancy;
• the requirement to serve the gas safety certificate is a “once and for all” requirement and cannot be rectified by serving the gas safety certificate at a later date; and
• any other interpretation could result in landlords letting dangerous premises, which is contrary to the purpose of the Gas Safety Regulations.

The decision in Caridion caused a lot of concern for landlords as it meant that, where a gas safety certificate has not served prior to the tenancy commencing:

• the landlord was unable to serve a s.21 Notice; and
• the effect was to convert the assured shorthold tenancy into an assured tenancy, and the only way to gain possession was to establish one of the grounds under s.8 of the Housing Act 1988.

Effectively, the result was that a landlord may not be able to regain possession at all, unless the tenant chose to vacate.

Not surprisingly, the matter came before the Courts one more in the case of Trecarrell House Limited v Patricia Rouncefield [2020] in which the Court of Appeal disagreed with the interpretation in Caridion and ruled that, although the AST Regulations are not clear, on a 2:1 majority, it considered that the correct interpretation was that the breach could be remedied by later serving the gas safety certificate. The Landlord’s s.21 Notice was therefore held to be valid as the gas safety certificate was served before the s.21 Notice, albeit, after commencement of the tenancy agreement.

However, in 2022, the issue of a valid s.21 Notice and gas safety certificates came before the Courts once more in an unreported case: Byrne v Hardwood-Delgado 

In Byrne, an order for possession was granted in the first instance.  The Court’s view was that a Landlord should not be prevented from obtaining possession under s.21 where a gas safety certificate had been served on the tenant after the tenancy commenced but before the s.21 Notice was served.  The tenant appealed the decision and the Court ruled that, as required by the Gas Safety Regulations, a landlord was required to provide the “last record” to a “new” tenant. Accordingly, the Gas Safety Regulations intended for a certificate to exist at the time that the tenancy commenced.  The s.21 Notice was held invalid as there was no gas safety certificate at the commencement of the tenancy.

The issue, therefore, was not when the gas safety certificate should be served but when the gas safety certificate should have been obtained by the Landlord, thereby, differentiating the approach in Trecarrell House Ltd. The clear distinguishing factor between the two cases was that the landlord in Trecarrell House Ltd had obtained a gas safety certificate prior to commencement of the tenancy but this was not served until late, however, the landlord in Byrne failed to obtain a gas safety certificate at all, before the commencement of the tenancy; one was obtained after the commencement of the tenancy and was then served prior to the s.21 Notice.

Where are we now?

Where a landlord has not obtained a gas safety certificate prior to commencement of the tenancy agreement, the Court could adopt the approach in Byrne and find that the s.21 Notice is invalid.  The Landlord would then be unable to obtain possession and, as with the decision in Caridion, the tenancy effectively converts into an assured tenancy and the only way to gain possession is by establishing one of the grounds under s.8 of the Housing Act 1988.

The County Court in Byrne took a different view to the Court of Appeal in Trecarrell, this has been distinguished.  However, Byrne is not a binding authority, was unreported and a decision of a County Court and so the Courts may not necessarily follow the decision in Byrne.  Further, although Byrne is distinguished from Trecarrell, it still remains inconsistent with the reasoning of the Court of Appeal in Trecarrell i.e. that a breach should be capable of being remedied, albeit at a later date, as with any other breach.

Moving forward

The dissenting approach taken by the County Court in Byrne shows that the issue of gas safety certificates remains a contentious area. Byrne may well go to the Court of Appeal, at which point the court could opt for an entirely different approach.

However, for now, as a result of Byrne, if a tenant raises an issue at first instance regarding a landlord’s failure to obtain a gas safety certificate, prior to commencement of the tenancy agreement, the court may find that the s.21 Notice is invalid.

Where possible, and to prevent the court from following a similar approach to that of Byrne, a landlord should ensure that a valid gas safety certificate has been obtained prior to commencement of the tenancy agreement.