Gas Safety Records - Better Late than Never

The Court of Appeal have handed down their long awaited judgment in Trecarrell House Ltd v Rouncefield [2020] EWCA Civ 760. The Appellant was a landlord who sought to over turn the decision of His Honour Judge Carr that late compliance with providing a Gas Safety Record (the requisite period being 28 days) prohibited the landlord from being able to rely on a section 21 Housing Act 1988 notice even after having supplied the Gas Safety Record. In reaching this conclusion His Honour Judge Carr had adopted the reasoning of  His Honour Judge Luba QC in Caridon Property Limited v Shooltz (2 February 2018: 2018 WL 05822845.

The Appeal turned on the interaction between Regulation 2(2) of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015, and regulations 36(6) and/or 36(7) of the Gas Safety (Installation and Use) Regulations 1998.

The Court of Appeal allowed the appeal by a 2-1 majority of Patten LJ and King LJ (Moylan LJ dissenting), holding that the effect of Regulation 2(2) was that a tenant must be provided with a Gas Safety Record pursuant to regulations 36(6) or (7), but Regulation 2(2) disapplied the 28-day time limit for doing so. Whilst it is necessary a landlord to provide their tenant with a Gas Safety Record before service of a s.21 notice in order for the notice to be valid, providing a Gas Safety Record late does not prevent a landlord from subsequently serving a valid s.21 notice.  

Moylan LJ’s dissent was based on what he considered to be the most natural reading of Regulation 2(2) – because it referred to the ‘28 day period for compliance’ and referred to ‘that requirement’, he held that the regulation only referred to the requirement in paragraph (6)(a), not (6)(b), such that the 28-day period was mandatory. He considered that the breach was irremediable by late compliance, in a manner similar to a landlord failing to protect a tenant’s deposit within 30 days, which carries strict liability.

Whilst the Appellant was successful in establishing that it was possible for him to issue the tenant with a valid s.21 notice there remained a dispute in the case as to when the Gas Safety Record had actually been provided to the tenant. The Court of Appeal therefore remitted the decision for a factual finding on this disputed issue back to the County Court.

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