Trecarrell House Ltd v Rouncefield

For the purposes of section 21A of the Housing Act 1988, the gas-safety requirements prescribed by regulation 2 of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 include the obligation to provide a gas safety record to a new tenant. Regulation 2(2), however, limits the prescribed obligation to giving the record. It disapplies both the 28-day period for an existing tenant and, by necessary effect, the requirement to provide or display the record before a new tenant occupies.

A landlord who supplies a valid record before serving a section 21 notice is no longer in breach for that purpose. A late annual safety inspection does not itself prevent compliance with the record-provision requirement, but the record must contain the information required by the Gas Safety (Installation and Use) Regulations 1998.

The claimant landlord granted the respondent an assured shorthold tenancy of a flat served by a gas boiler located elsewhere in the building. It did not give her, or prominently display, the current gas safety record before she occupied the flat. It subsequently supplied a record and later served a section 21 notice seeking possession.

The District Judge held that the relevant gas-safety requirements did not prevent the notice. On the tenant’s appeal, HH Judge Carr held that the initial failure was irremediable, following Caridon Property Limited v Shooltz (2018 WL 05822845). The landlord appealed.

The central issue was whether later delivery of the gas safety record cured the breach of regulation 36(6)(b) or (7) of the Gas Safety (Installation and Use) Regulations 1998 for the purposes of section 21A of the Housing Act 1988.

1. By a majority, Patten LJ and King LJ held that the landlord’s appeal succeeded on the principal issue. Regulation 2(1)(b) of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 makes the whole of regulation 36(6) and (7) of the Gas Safety (Installation and Use) Regulations 1998 prescribed requirements. Regulation 2(2) does not exclude regulation 36(6)(b) altogether.

2. The majority held that regulation 2(2) limits the prescribed requirement to the obligation to give the tenant the relevant gas safety record. Its express removal of the 28-day deadline for existing tenants also means that, for section 21A purposes, a landlord may cure a failure to provide the record to a new tenant before occupation by giving it later and before service of the section 21 notice. The statutory bar is collateral to the criminal sanctions for breach of the gas-safety regime and is an incentive to compliance, not an additional absolute sanction.

3. The contrary conclusion in Caridon Property Limited v Shooltz (2018 WL 05822845) was not accepted on that issue. Lord Justice Moylan dissented. He considered that regulation 2(2) removed only the 28-day limit in regulation 36(6)(a), leaving a failure to comply before occupation under regulation 36(6)(b) irremediable.

4. The majority further held that a safety check performed more than 12 months after the previous one did not prevent the landlord from complying with regulation 36(6)(a) by providing a record after the check. The words concerning an appliance or flue so checked cover every safety check. However, the April 2018 record was ineffective because it stated the wrong date of inspection. The February 2018 record would satisfy the requirement only if it had been supplied before, or with, the section 21 notice.

5. The unresolved factual issue of when the February 2018 record was received was remitted to the County Court under rule 52.20(2)(b) of the Civil Procedure Rules 1998. The final disposal of the appeal was reserved pending that determination.

• Court of Appeal (Civil Division): By majority in [2020] EWCA Civ 760, held that late provision of a gas safety record could cure the initial breach for section 21A purposes, but remitted the issue of when the later record was received.
• County Court at Truro (HH Judge Carr): Allowed the tenant’s appeal from the District Judge and held that the failure to provide or display the record before occupation permanently prevented reliance on a section 21 notice.
• County Court at Truro (District Judge Rutherford): Held that regulation 36 of the Gas Safety (Installation and Use) Regulations 1998 either did not apply or did not prevent late compliance, and did not treat the initial omission as a bar to possession.