Charles Jamieson, solicitor in the Bishop & Sewell Dispute Resolution Department, discusses the complex nature of regaining possession of a property during the pandemic.

Trecarrell House Ltd v Rouncefield [2020] EWCA Civ 760] – The Gas Safety (Installation and Use) Regulations 1998

One of the fastest moving areas of law during the pandemic has been the question of whether or not a party may seek possession of a property.  This has involved amending the notice periods, automatic stays on proceedings, and variations subject to which form of possession proceedings are being pursued.  Notwithstanding this, the first stage for any party seeking possession, where they are required to serve a notice, is to ensure the same is compliant and enforceable.

Since HHJ Luba QC’s judgment in Caridon Property Ltd v Monty Shooltz [2018] EW Misc B9 (CC), during February 2018, there has been considerable query amongst lawyers as to whether this decision would remain, and what options were available to a landlord to rectify this breach to enable them to rely upon use of the Section 21 Notice possession procedure.

By Way of Recap:

• To recover possession of a property under the No Fault Proceedings (“Section 21 Process”), a landlord must have complied with the prescribed legal requirements

• These prescribed requirements include compliance with the 1998 Gas Safety (Installation and Use) Regulations (“the Regulations”)\

• Regulation 36 requires the provision of a Gas Safety Record (“GSR”) prior to the tenant taking occupancy of the property, appliances and flues remain regularly inspected, and the tenant is provided with any new GSR within 28 days of it being obtained

• In Caridon the court determined that if a landlord failed to provide the GSR prior to the commencement of the tenancy (when the tenant takes possession) then this was a ‘once and for all’ breach and incapable of remedy (those familiar with the issue of possession / forfeiture will recognise some breaches as being once and for all or continuing, and some of those (in)capable of remedy)

• This meant that a landlord was therefore precluded from making use of the section 21 process thereafter

Fast Forward…

Fast forward to January 2020 and the question was before the Court of Appeal in Trecarrell (judgment being handed down on 18 June 2020).

In this instance the landlord had failed (amongst other breaches for the check being late in any event) to provide a copy of the original GSR at the time of the tenancy being granted, and provided the (late) new GSR to the tenant outside of the 28 day obligation.  

Question: Can the Landlord make use of the section 21 process?

In a split judgment, which involved the exacting dissection and interplay of different legislation and regulations, the Court of Appeal determined that this landlord was able to rectify the breach by serving the GSR prior to the service of a Section 21 Notice, meaning they could use the Section 21 Process. 

However, before any readers think therefore that this means they can simply take a lackadaisical view toward this activity simply because now they can remedy any default retrospectively, they should give pause to note that this result was reached on the basis any connection to the possession process is a bi-product and, as Patten LJ points out: “therefore only collateral…and, at best, a spur to compliance” (paragraph 24 of the Court of Appeal judgment).

Moylan LJ, dissenting in this judgment, opined that:

“It is regrettable, given the prevalence of AST’s and the importance that gas appliances are checked for safety, that [the legislation and regulations are]…not a clear as [they] might be…the sanction imposed by s.21A in respect of the “safety of occupiers of dwelling-houses”, of depriving a landlord of the ability to use [the Section 21 Process]…might be expected, in my view, to impose a substantive sanction rather than simply a procedural requirement to give a GSR to a tenant at any time prior to the provision of a s.21 notice.” 

(Paragraph 48 of the Court of Appeal judgment)

Although the pressure may have, for the moment, been relieved for landlords when it comes to recovering possession of their property, the Gas Safety Regulations remain integral to discharging safety obligations in general and simply because the certificate may now be a breach which can be remedied retrospectively when it comes to recovering possession, Gas Safety should, as ever, remain at the forefront of any landlord’s mind.