Readers of this blog will recall the case of Caridon Property v Monty Shooltz in which a tenant successfully defended a Section 21 repossession case. Our previous post can be read here. Now a court has made the same decision in a new case with similar facts which has prompted the Residential Landlord Association’s (RLA) decision to assist the landlord in the Court of Appeal.
The tenant successfully defended the possession case on the basis that the landlord had failed to provide a Gas Safety Certificate at the commencement of the tenancy. The Gas Safety Certificate was in fact served shortly prior to the service of the section 21 notice which was some 11 months into the tenancy.
The appeal court held that serving the Gas Safety Certificate at the commencement of the tenancy was a ‘once and for all’ obligation. This means that where the Certificate is not served at the commencement the landlord is absolutely barred from gaining possession of a property on the expiry of a section 21 notice. The rationale for this decision was that without an absolute bar a landlord could gain possession despite having left tenants vulnerable to dangerous and unchecked appliances in any rental property.
The landlord, Trecarrell House Limited, lost their possession case because they served the Gas Safety Certificate on the tenant after the commencement of the tenancy but before the service of the Section 21 notice. However, the appeal court held that where the Gas Safety Certificate has not been served on the tenant before they took occupation then a Section 21 notice could not be relied on to gain possession, and the situation could not be resolved by serving one after the moving in date. The Court held that it would be unfair to allow a simple fix of serving the s21 late as a landlord could serve the gas safety certificate with one hand and, moments later, serve an s21 with the other.
The RLA are therefore supporting the landlord on the basis that so long as the Gas Safety Certificate is provided before the Section 21 notice is served, then it is valid. The argument is that if the courts continue to make similar decisions it could be a breach of a landlord’s rights under the European Convention of Human Rights on the basis that it deprives them of their possessions.
This case will be closely watched by landlords and tenants as the outcome will be of crucial importance to the use of section 21 notices. While there is a case for not letting landlords serve a notice at the last minute it is also a harsh punishment to keep them from recovering possession, especially where there is nothing wrong with the gas installation. It will be interesting to see how the Court of Appeal deals with the issue.
Published 26 March 2o19