In Trecarrel House Limited v Rouncefield the Appeal court held that a breach of the Gas Safety Regulations could not be remedied by a landlord retrospectively.
The gas safety certificate was served prior to the service of a s.21 notice and not before the tenant occupied the property. However, at first instance and contrary to the decision in Caridon Property Ltdthe court granted the landlord possession.
The court held that as the boiler was not within the flat but was a central boiler serving the entire block and the pipes within the flat carried water and not gas the Gas Safety Regulations did not apply. The court then considered Regulation 2 of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015.
Under Regulation 36 of the Gas Safety Regulations there are 2 requirements:
- To provide a tenant with a copy of a gas safety certificate prior to the tenant occupying the property;
- When a gas safety certificate expires to provide an existing tenant with a copy of the new certificate produced after an annual check within 28 days.
At first instance the judge found that the s.21 regulations state that the requirement is merely “to give a copy of the relevant record to the tenant” and as this had happened then the prohibition was not engaged.
The decision was appealed to a circuit judge who overturned the first instance decision. Firstly, the fact that the gas appliance was not in the flat itself was irrelevant. Regulation 36(1) of the Gas Safety Regulations includes a requirement to provide a gas safety certificate in relation to any appliance controlled by the landlord. In this case the landlord was letting out one flat in a block but they actually controlled the entire block and rented all of the flats within it, so tenants were entitled to certificates.
On the second issue, the s.21 regulations do state that the obligation is to give a certificate but they also then go on in the same sentence to state that the 28 day window does not apply. The circuit judge held that this meant that the latitude only applied to a re-check where it appears not to matter if the certificate is given later than 28 days as long as it is given before an s.21 notice is served. However, as nothing is said about the requirement to give a certificate before the tenant moves in in this case, as in Caridon it was held that this failure was not one that could be corrected and so no s.21 notice could be given at all.
The landlord has now obtained permission to appeal to the Court of Appeal. The appeal is likely to be heard in late 2019.