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Supreme Court ruling on Section 21 case – what now for landlords?

A Supreme Court decision to dismiss any more appeals by the tenant in an infamous eviction case may have granted landlords some relief regarding Section 21 (s.21) and gas safety certificates.

The high profile case, Trecarrell House Limited v Rouncefield, hinged on whether a tenant could be evicted through a Section 21 notice if a gas safety certificate was served after the tenancy had begun.

But the two-year case has come to an abrupt end following the Supreme Court ruling. Below, we provide a breakdown of the case and what it means for landlords when issuing gas safety certificates moving forward.

What was the case about?

The tenant, Ms Rouncefield, moved into a flat managed by Trecarell House Limited in February 2017. Trecarrell did not provide a gas safety certificate prior to her moving in but, in November that same year, delivered a copy of a certificate dated January 2017.

In May 2018, the landlord served notice under s.21 Housing Act 1988 and issued possession proceedings. The tenant disputed that because no gas safety certificate had been provided prior to her taking occupation, the landlord was not entitled to serve notice under s.21.

The Circuit Judge granted the tenant’s appeal against a possession order, and it was revealed that there had been a further gas safety check carried out in February 2018, but no gas safety certificate had been provided afterwards.

Failure to do so was said to amount to a breach of a prescribed requirement. However, the landlord declared that the certificate had been given before the s.21 notice was served.

In June 2020, the Court of Appeal ruled two-to-one that the late serving of a gas safety certificate does not prevent a landlord from serving a s.21 notice as long as the relevant certificate has been given before the notice is served.

The tenant tried to overturn the decision in the Supreme Court, but this was rejected on the basis that the application does not raise a point of general public importance.

What do the experts say?

The Supreme Court judges received submissions from both parties’ lawyers, according to legal firm Anthony Gold Solicitors, which acted for the landlord.

Senior associate solicitor at Anthony Gold, 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.”

“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.”

Cummings said the Supreme Court’s decision means that the interpretation of the law accepted by Court of Appeal’s in June 2020 remains binding on District Judges who deal with possession claims. 

Robin Stewart, senior associate solicitor at Anthony Gold, commented: “The Supreme Court’s decision not to allow a further appeal marks the end of one chapter of litigation concerning section 21 notices and gas safety certificates, but this issue is not going away.”

“Trecarrell will not be the last case to address these issues because there is still significant uncertainty about how to interpret some aspects of the law concerning Section 21 notices.”

What are the implications for landlords?

The decision comes as welcome news to landlords, as failure to provide the original gas safety certificate prior to a tenant moving in is not fatal to a Section 21 claim, so long as it is given before the s.21 notice is served.

Likewise, failure to carry out the annual inspection in time is not detrimental as long as it too is provided before the s.21 notice is served.

However, question marks have been raised surrounding the situation. For example, what does this mean for a landlord who has failed to carry out a gas safety check before the tenancy begins? Are they able to remedy this breach and serve a valid s.21 notice?

Although the Court of Appeal established that late submission of the initial gas safety certificate is repairable, it did not state that all historic gas safety breaches – including failing to actually have a certificate before the commencement of the tenancy – are capable of remedy.

What’s more, the gas safety regulations only require landlords to retain the gas safety certificate for two years from the date of the check, meaning that landlords may face problems remedying the breach later or proving that they have done so.

In order to prevent this, it’s important that landlords appoint a knowledgeable letting agent, one that understands the complexities of lettings and compliance with existing and upcoming regulation, to help them remain compliant throughout the tenancy and beyond.

Here at Holland Properties, we have been an established estate and letting agent since 1999 and can help to manage your tenancies. We operate across London, with our head office based in Docklands.

For further guidance on any part of the lettings process, please contact us today. You can also request a free and instant online valuation to see how much rent you could be charging in the current marketplace.