Coodes case results in landmark Court of Appeal decision for landlords

Coodes Solicitors has advised a landlord client on a case, which has resulted in a Court of Appeal decision that could have far-reaching implications for thousands of landlords across the country.

The long-anticipated Court of Appeal decision was handed down on 18 June 2020, in the case of Trecarrell House Ltd v Rouncefield. The case revolved around the requirement for landlords to provide their tenants with a gas safety certificate and the timing implications of this on the landlord’s later ability to serve ‘section 21’ possession notices.

The background: Section 21 Housing Act 1988

Section 21 Housing Act 1988 permits ‘no fault’ possession notices to be served by landlords on assured shorthold tenants. However, a possession notice cannot be served unless the landlord complies with certain prescribed requirements which include, among other things, the need for the landlord to have provided the tenant with a gas safety certificate. Before the Court of Appeal decision, the timing for service of the gas safety certificate was arguably not entirely clear in the prescribed requirements.

Trecarrell House Ltd v Rouncefield

Ms Rouncefield became an assured shorthold tenant of a flat in February 2017. Trecarrell House Ltd was her landlord.

A gas safety certificate was not served on Ms Rouncefield until November 2017, 10 months after the tenancy commenced. That certificate was dated January 2017, one month before the tenancy commenced.

In May 2018, Coodes acted for Trecarrell House Ltd in serving a section 21 notice and, on expiry, court possession proceedings were issued. Ms Rouncefield defended the possession claim on the basis that the gas safety certificate should have been served on her before her tenancy commenced and as it had not been served on her until after she took possession of the flat the landlord was not entitled to serve the section 21 possession notice on her.

Supported by Coodes’ Personal Disputes lawyer, Hayley Gaffney, Trecarrell, successfully argued the point and obtained a possession order at Truro County Court and Ms Rouncefield’s defence was dismissed.

Ms Rouncefield then appealed this decision. Coodes again represented Trecarrell in the appeal. At appeal, His Honour Judge Carr held that the correct construction of the prescribed requirements was such that the gas safety certificate should have been served by Trecarrell before Ms Rouncefield took up occupation of the flat, that the section 21 possession notice was therefore not validly served and Trecarrell was not entitled to possession. This decision was based on the earlier decision of His Honour Judge Luba QC in the high-profile case of Caridon Property Ltd v Monty Shooltz and had far-reaching implications for landlords all over the country.

The Court of Appeal hearing

Supported by the National Residential Landlords Association, Trecarrell then took the case to the Court of Appeal claiming that it was entitled to rely on the section 21 possession notice as the gas safety certificate predated the tenancy and had still been served on Ms Rouncefield before the section 21 possession notice was served on her. The appeal was heard in January 2020.

By a majority, the Court of Appeal has decided that a section 21 possession notice can be validly served as long as, at any time prior to its service a landlord has provided the tenant with an initial gas safety certificate which was in force prior to commencement of their tenancy, and has also provided any subsequent certificate(s) before service.

In Ms Rouncefield’s case, it was therefore immaterial that the January 2017 gas safety certificate had not been provided to her until November 2017. The fact that it pre-dated the tenancy and was served before the section 21 possession notice was enough to meet the prescribed requirements.

The implications for landlords

What this landmark decision means is that a failure to provide a gas safety certificate prior to commencement of a tenancy is not a ‘once and for all’ requirement. As long as the relevant gas safety certificate(s) have been provided to the tenant before a section 21 notice is served, that is sufficient to meet the prescribed requirements for a valid section 21 possession notice to be served.

Coodes Solicitors Litigation Executive Hayley Gaffney says “This result is very good news for those many landlords who have been worried about what this issue could mean for them and it will have far-reaching implications for thousands of tenancies across the country. However the law around service of section 21 possession notices remains complex and landlords still need to ensure they steer clear of the potential pitfalls and to make sure the right process is followed ”.

For assistance with your own landlord and tenant queries, please contact Hayley Gaffney on hayley.gaffney@coodes.co.uk or 01726 874700