Trecarrell House Ltd v Rouncefield

The Court of Appeal considered the effect of s.21A Housing Act 1988, the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (regulation 2) and regulation 36 of the Gas Safety (Installation and Use) Regulations 1998 on a landlord's ability to serve a s.21 notice where a gas safety record (GSR) had not been provided to a new tenant before occupation. The majority held that regulation 2(2) limits the prescribed requirement to the obligation to give the tenant a copy of the relevant record (and removes the 28‑day rule in regulation 36(6)(a)) and that late provision of an otherwise compliant GSR will, for the purposes of s.21A, cure the breach. The court also held that a GSR which misstated the date of inspection could not be relied upon as evidence of compliance with regulation 36(6)(a). The factual question whether the correct February 2018 GSR was provided before the s.21 notice was remitted to the county court for determination.

Background and parties:

• The claimant landlord sought possession of a flat occupied by the defendant tenant under an assured shorthold tenancy by service of a s.21 notice. The Flat received heating and hot water from a gas boiler located elsewhere in the building and therefore the boiler was a "relevant gas fitting" for the purposes of regulation 36 of the Gas Safety (Installation and Use) Regulations 1998.

Procedural history: The claim was heard in the County Court at Truro under the accelerated s.21 procedure. District Judge Rutherford held regulation 36 had no application or that the timing requirement was not fatal. On appeal HH Judge Carr held late compliance did not enable reliance on s.21, adopting the reasoning in Caridon Property Ltd v Shooltz. The landlord appealed to the Court of Appeal.

Nature of the claim / relief sought:

• Possession under s.21 Housing Act 1988 (accelerated procedure).

Issues framed:

1. Whether regulation 2(2) of the 2015 Regulations excludes regulation 36(6)(b) entirely or otherwise allows late provision of a GSR to cure an earlier breach for the purposes of s.21A;
2. Whether failure to carry out an inspection within 12 months (regulation 36(3)(a)) prevents compliance with regulation 36(6)(a) by subsequent provision of a GSR; and
3. Whether the correct February 2018 GSR had been provided to the tenant before the s.21 notice was served.

Court’s reasoning and decision:

• The majority (Patten LJ and King LJ) concluded regulation 2(2) should be read as limiting the prescribed requirement to the obligation to give a tenant a copy of the relevant record and as disapplying the 28‑day requirement in regulation 36(6)(a). On that construction, late provision of the GSR can cure the breach for s.21A purposes so long as a compliant record is provided before service of the s.21 notice.
• The majority rejected the submission that paragraph (6)(b) was excluded in its entirety and reasoned that it made little policy or drafting sense to exclude protection for new tenants while retaining it for existing tenants; the court read the instrument as treating the obligation to give a copy as the prescribed requirement for both (6)(a) and (6)(b).
• The court held that a GSR which gave an incorrect date for the safety check did not comply with regulation 36(3)(c)(i) and therefore could not be relied upon as evidence of compliance with regulation 36(6)(a). The claimant produced a correct February 2018 GSR but the timing of its provision to the tenant was contested.
• Moylan LJ dissenting on the main point concluded that regulation 2(2) refers only to the 28‑day rule in (6)(a) and does not permit late compliance of (6)(b); he would have dismissed the landlord’s challenge. He agreed, however, that the timing issue should be remitted to the county court.

Result: By majority the appeal was allowed to the extent that late provision of a compliant GSR can cure the breach for s.21A purposes; the factual question whether the February 2018 GSR was provided prior to the s.21 notice was remitted to the county court for determination. If the GSR was provided before the notice the landlord succeeds; if not, the s.21 notice cannot be relied upon.

Appeal allowed (majority). The Court of Appeal (Patten LJ and King LJ) held that regulation 2(2) of the 2015 Regulations limits the prescribed requirement under s.21A to the obligation to give the tenant a copy of the relevant gas safety record and removes the 28‑day rule in regulation 36(6)(a), so that late provision of a compliant GSR can cure the breach for the purposes of s.21A provided it is given before service of the s.21 notice. The court also held the April 2018 GSR which misstated the inspection date could not be relied upon; the factual question whether the correct February 2018 GSR was provided before the s.21 notice was remitted to the county court for determination. Moylan LJ dissented on the main point and would have dismissed the landlord’s challenge, but agreed the factual remittal was required.

Claim heard in the County Court at Truro (District Judge Rutherford) on 13 September 2018; first-tier appeal in the County Court before HH Judge Carr on 13 February 2019 (judge held late compliance did not permit reliance on s.21, adopting Caridon); further appeal to the Court of Appeal resulting in this judgment [2020] EWCA Civ 760.