No release from gas

Trecarrell House Limited v Rouncefield, County Court at Exeter, 13 February 2019 (unreported elsewhere)

The gas safety certificate section 21 wars rumble on. Following Caridon Property Ltd v Monty Shooltz (our note here), we have a further County Court appeal decision. This time from Exeter and concerning s.36(7) of the 1998 Gas Safety Regulations. That provides:

(7) Where there is no relevant gas appliance in any room occupied or to be occupied by the tenant in relevant premises, the landlord may, instead of ensuring that a copy of the record referred to in paragraph (6) above is given to the tenant, ensure that there is displayed in a prominent position in the premises (from such time as a copy would have been required to have been given to the tenant under that paragraph), a copy of the record with a statement endorsed on it that the tenant is entitled to have his own copy of the record on request to the landlord at an address specified in the statement; and on any such request being made, the landlord shall give to the tenant a copy of the record as soon as is practicable.

Our very grateful thanks to Richard Cherry, 1 Chancery Lane, who was counsel for the appellant, for the following case note.


HHJ Carr in a reserved judgment handed down on 13 Feb 2019 allowed the Appellant’s appeal against a possession order made by DDJ Rutherford in the Truro County Court on 13 Sept 2018.

The tenancy was an AST granted 20 Feb 2017 of a self-contained flat in a domestic property. Hot water and heating were provided by a boiler outside the flat. It was common that no Gas Safety Certificate had been provided or displayed before the start of the tenancy but one was served prior to the service of the Section 21 Notice on 1 May 2018.

The case thus revisited the issues in HHJ Luba QC’s judgment in Caridon v Shooltz as to the obligations on a Landlord under:

a. the Gas Safety (Installation and Use) Regulations 1998 (‘the 1998 Regulations’) and
b. the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (‘the 2015 Regulations’)

and whether a Landlord in breach of those was prevented by s21A Housing Act 1988 from relying on a s21 Notice.

The First Instance Decision

The tenant was in person at the possession hearing while the Landlord was represented by counsel.

DDJ Rutherford considered that as the boiler was not within the demised property and the pipes within it carried water not gas, Reg 36(6) of the 1998 Regulations was not engaged at all. In the event that he was wrong, he went on to consider Reg 2 of the 2015 Regulations, and in particular Reg 2(2):

‘(2) For the purposes of section 21A of the Act, the requirement prescribed by paragraph (1)(b) is limited to the requirement on a landlord to give a copy of the relevant record to the tenant and the 28 day period for compliance with that requirement does not apply’

(This was of course the provision described by HHJ Luba at Para 19 of his judgment in Caridon as having caused ‘much difficulty’ for judiciary and parties alike. The point of whether Reg 2(2) actually allowed a Landlord to serve the appropriate Certificate at any time before a s21 Notice was as HHJ Luba noted at Para 30 ‘only faintly pressed’ in Caridon and failed to persuade HHJ Luba.)

DDJ Rutherford held Reg 2(2) to mean that ‘there is no absolute time limit on the provision of the gas record for the purposes of Section 21’.

On the purposive interpretation of the legislation, DDJ Rutherford held: ‘It cannot have been the case, in my view, that those who drafted both the primary legislation and the statutory instruments meant it to be the case that if a landlord failed to comply at the outset of a tenancy he was unable then to remedy any breach.’

The Tenant submitted that even if Reg 36(6) of the 1998 Regulations did not bite, Reg 36(7) applied, creating a parallel obligation to those in Reg 36(6)(a) and (b) which could be discharged by displaying a Certificate or supplying one to a tenant. The Tenant gave unchallenged evidence that no copy had been displayed. The learned judge did not deal with that point in his judgment.

The Appeal

The Tenant appealed on the basis that DDJ was wrong to consider that Reg 36(6) was not engaged and that even if he was correct, Reg 36(7) applied and the Landlord was in breach; DDJ’s interpretation of Reg 2(2) of the 2015 Regulations was incorrect and the obligation in both Reg 36(6)(b) and 36(7) of the 1998 Regulations meant that a landlord who had not supplied or displayed the current Certificate before occupation could not thereafter remedy that and was unable to rely on a s21 Notice. (This of course was the basis of the decision in Caridon – although Caridon on its facts dealt with Reg 36(6)(b).)

HHJ Carr derived considerable assistance from the judgment of HHJ Luba QC in Caridon v Shooltz. He noted that if the Appellant was correct and the Landlord was precluded from relying on a Section 21 Notice it did not preclude them seeking possession under the grounds in Schedule 2 of the Housing Act 1988.

As both parties agreed that if either Reg 36(6) or (7) applied the Landlord had breached both, the issue of whether the arrangements in the Tenant’s flat engaged Reg 36(6) was not at issue.

HHJ considered the reason for the Regulations was self-evident. A tenant moving in needs to be sure the gas is well-maintained and safe. It is rare that a tenant would have any control over that and the danger to life and limb was all too well-known. He distinguished between the nature of the obligations in Reg 36(6)(a) and (b) and repeated in 36(7) on the basis that a tenant considering whether to move in to a new property had a decision to make as to whether to take it and the knowledge that it was safe would be of great importance; the tenant already in occupation would already have had the assurance of the initial Certificate and the annual provision of a Certificate was by way of confirmation.

HHJ Carr referred to HHJ Luba’s reasoning at Paras 30-36 of his judgment in Caridon and adopted his view as to why Reg 2(2) of the 2015 Regulations could not have the meaning argued for by the Landlord.

He noted that the 1998 Regulations had been amended by The Gas Safety (Installation and Use) (Amendment) Regulations 2018 but 36(6) and (7) remained unchanged. Had there been concerns as to unfairness or lack of clarity there had been opportunity to amend them.

HHJ examined the rationale of the Assured Shorthold Tenancy and the balance of the statutory scheme. He considered the 1998 Regulations had originally lacked teeth which the amendments to section 21 Housing Act 1988 were designed to give them. No landlord loses the ability to rely on s21 unless they have failed to provide basic safety information.

HHJ considered that the arguments advanced by the Landlord in opposing the Appeal were essentially those in Caridon and for the reasons in Caridon they must again fail. He concluded that a failure to comply with Reg 36(7) cannot be remedied and s21 was not available to the Landlord in this case. The appeal was allowed and the possession claim dismissed.

[Update – the landlord has been given permission to appeal to the Court of Appeal. No hearing date yet. So there may be some certainty on these issues.]

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Assured Shorthold tenancy, Deposits, Housing law - All, Possession and tagged .

40 Comments

  1. a good but correct result. thank you for reporting it.
    36(7) is plain and makes it clear there need be no appliance in the tenant’s part.

    I do not know what the technical arguments were in Trecarrel.
    i had previously had to look at this issue. i came to the conclusion that if there was no relevant gas fitting then the landlord had nil to do.
    but what is a relevant gas fitting? see reg 36(1)((b)
    what is installation pipework or a gas appliance? see reg 2

    No gas appliances in dwelling q whether or not lack of gas certificate makes a s21 no good etc.

    Conclusion
    1. The regs can only require stuff that is imposed by any legislation.
    2. Re gas even though no gas in dwelling can still require a record in dwelling but can only relate to a relevant gas fitting.
    3. Relevant gas fitting if directly or indirectly serves the relevant premises e.g. heating through central system serving the dwelling.

    The Gas Safety (Installation and Use) Regulations 1998 SI No. 2451
    Duties of Landlords
    36
    (1)
    …..
    • “relevant gas fitting” means—
    (a) any gas appliance (other than an appliance which the tenant is entitled to remove from the relevant premises) or any installation pipework installed in any relevant premises; and
    (b) any gas appliance or installation pipework which, directly or indirectly, serves the relevant premises and which either—
    (i) is installed in any part of premises in which the landlord has an estate or interest; or
    (ii) is owned by the landlord or is under his control,
    except that it shall not include any gas appliance or installation pipework exclusively used in a part of premises occupied for non-residential purposes.

    “relevant premises” means premises or any part of premises occupied, whether exclusively or not, for residential purposes (such occupation being in consideration of money or money’s worth) under—
    (a) a lease; or
    (b) a licence;

    ….
    (3) Without prejudice to the generality of paragraph (2) above, a landlord shall—
    (a)ensure that each appliance and flue to which that duty extends is checked for safety within 12 months of being installed and at intervals of not more than 12 months since it was last checked for safety (whether such check was made pursuant to these Regulations or not);
    (b)in the case of a lease commencing after the coming into force of these Regulations, ensure that each appliance and flue to which the duty extends has been checked for safety within a period of 12 months before the lease commences or has been or is so checked within 12 months after the appliance or flue has been installed, whichever is later; and
    (c)ensure that a record in respect of any appliance or flue so checked is made and retained for a period of 2 years from the date of that check, which record shall include the following information—
    ….
    (6) Notwithstanding paragraph (5) above, every landlord shall ensure that—
    (a) a copy of the record made pursuant to the requirements of paragraph (3)(c) above is given to each existing tenant of premises to which the record relates within 28 days of the date of the check; and
    (b) a copy of the last record made in respect of each appliance or flue is given to any new tenant of premises to which the record relates before that tenant occupies those premises save that, in respect of a tenant whose right to occupy those premises is for a period not exceeding 28 days, a copy of the record may instead be prominently displayed within those premises.
    (7) Where there is no relevant gas appliance in any room occupied or to be occupied by the tenant in relevant premises, the landlord may, instead of ensuring that a copy of the record referred to in paragraph (6) above is given to the tenant, ensure that there is displayed in a prominent position in the premises (from such time as a copy would have been required to have been given to the tenant under that paragraph), a copy of the record with a statement endorsed on it that the tenant is entitled to have his own copy of the record on request to the landlord at an address specified in the statement; and on any such request being made, the landlord shall give to the tenant a copy of the record as soon as is practicable.

    General interpretation and application
    2.—(1) In these Regulations, unless the context otherwise requires—

    “gas appliance” means an appliance designed for use by a consumer of gas for heating, lighting, cooking or other purposes for which gas can be used but it does not include a portable or mobile appliance supplied with gas from a cylinder, or the cylinder, pipes and other fittings used for supplying gas to that appliance, save that, for the purposes of regulations 3, 35 and 36 of these Regulations, it does include a portable or mobile space heater supplied with gas from a cylinder, and the cylinder, pipes and other fittings used for supplying gas to that heater;

    • “installation pipework” means any pipework for conveying gas for a particular consumer and any associated valve or other gas fitting including any pipework used to connect a gas appliance to other installation pipework and any shut off device at the inlet to the appliance, but it does not mean—
    (a) a service pipe;
    (b) a pipe comprised in a gas appliance;
    (c) any valve attached to a storage container or cylinder; or
    (d) service pipework;

  2. Pingback: Trecarrel House Limited v Rouncefield - 1 Chancery Lane

  3. Pingback: More grief for landlords on gas safety certificates and section 21

  4. So, according to the twisted logic of this judgement even appliances that are not in the same building as the let property but supply the let property in other buildings will require a landlord to provide a GSC to tenants even though that appliance may not be under the landlords direct control.

  5. Thank you for this update.

    My understanding is that a landlord in that situation would only be able to serve a section 8 notice, provided he can rely on the grounds in Schedule 2 of the Housing Act 1988. Is this position correct? Thank you very much in advance.

  6. Surely a gas safety certificate is only required if the gas is actually supplied to the property and there are flues traversing through the property? It does not make sense if a gas boiler only pumps hot water to the property. I understand that if this hot water is supplied via a hot water storage tank then there will be a need to the landlord to supply Legionella prevention advise.

    • No, see The Gas Safety (Installation and Use) Regulations 1998 s.36(7) – where there is a gas installation to the building but not in the demised property:

      (7) Where there is no relevant gas appliance in any room occupied or to be occupied by the tenant in relevant premises, the landlord may, instead of ensuring that a copy of the record referred to in paragraph (6) above is given to the tenant, ensure that there is displayed in a prominent position in the premises (from such time as a copy would have been required to have been given to the tenant under that paragraph), a copy of the record with a statement endorsed on it that the tenant is entitled to have his own copy of the record on request to the landlord at an address specified in the statement; and on any such request being made, the landlord shall give to the tenant a copy of the record as soon as is practicable.

      This was what the landlord had not done.

  7. Prior to signing the tenancy

    One grey area worth exploring is whether it is acceptable for the GSC to be place din a tenancy pack, having been the first time the tenant saw the document and could arguably come down to whether he signed the agreement without first given being ample opportunity to review the GSC. What are the thoughts on this? The idea is that is should be available at the time of viewing a property well before sign up.?

    Jonathan

  8. That does seem very definite and useful and not grey at all! My area of interpretation was isolating the gas Reg in question which I can see does state ” (b)a copy of the last record made in respect of each appliance or flue is given to any new tenant of premises to which the record relates before that tenant occupies those premises

    Thanks for the clarity Giles. prompted me to my own homework

  9. Would a fresh gas certificate have to be served before ‘each tenancy’ if a tenancy is renewed by the same tenant? Or is serving one before the person moves in for the very first time sufficient for section 21 purposes?

    • The tenant has to have a valid gas certificate. So if provided with one at the start of the first tenancy and the 12 month checks have been done and copy given to the tenant, then subsequent tenancies are covered.

  10. Sorry, perhaps I wasn’t clear: I’m asking whether the Monty Shooltz situation, in which a landlord is in breach and can’t fix it by giving an up-to-date certificate (because they failed to give the first one before the new tenant moved in), applies if a certificate was given before the very first (and now expired) tenancy but not before a renewed tenancy?

    Hypothetical timeline for the question:
    1 January 2018: gas certificate given.
    One-year AST begins 2 January 2018.
    That AST expires on 1 January 2019.
    One-year AST renewed from 2 January 2019.

    If no gas certificate has been given since 1 January 2018, certainly no section 21 can be served until the breach of regulation 36(6)(a) has been remedied, but as you say, that’s easy to remedy.
    I’m asking whether there has been a permanent ‘Shooltz’ breach of regulation 36(6)(b) – because no gas safety certificate was given before the present tenancy, which began on 1 January 2019, was started?

    • Ah, I see. Simple answer – we don’t know. But if that is the case, then Shooltz can be remedied on a replacement tenancy. The question is whether Reg 36(6)(b) means ‘before the tenant goes into occupation’ generally, or ‘before the tenant goes into occupation under that specific tenancy’.

      If it means ‘goes into occupation’ generally then Shooltz applies at the start of the first tenancy only (and can never be remedied).
      If it means ‘occupation under that specific tenancy’, then 36(6)(b)would also apply at the start of a replacement tenancy, but also, a failure could be remedied at the start of a subsequent tenancy.

      Does that make sense?

      Anyway, the whole thing will be before the court of appeal in the future, so this may become academic.

  11. Do we have transcripts of judgment for Rouncefield or the earlier Ooo case? I know we have Shooltz.

    • Assuming CoA upholds the lower court’s decision, will we have an answer to the question “can failure be remedied by providing a valid GSC and then agreeing a replacement tenancy?”?

  12. But then I have to ask it almost becomes optional to issue the paperwork at the beginning of the tenancy.

    Simply issue (gas safety , EPC right to rent etc) with s.21 at anytime and you’re good to go.

    So effectively (as a landlord) I only need to issue AST and deposition protection docs. Nothing else because I can simply re-serve .

    As a landlord It doesn’t feel right to me BUT neither does never being able to issue s.21 because a gas safety cert wasnt issued at the start …..

    Your thoughts ?

  13. Well maybe I’m fast forwarding a bit here ol here goes again .

    my thought is (as far as I’m aware ) there doesn’t seem to be any penalty for not issuing the EPC the gas safety the right to rent e.t.c. at the beginning of Eternity except for the fact that you cannot issue an s21 one without having first serve these docs.

    So if the judges rule that you can just serve these documents at any time along with the S21 then effectively. No need to issue at the beginning?

    • You have read the post you are commenting on?

      As things stand, not providing a GSC before the tenant goes into occupation means you can never serve a section 21.

      Not doing the GSC checks at the required times also leaves you at risk of prosecution, fines and even potential imprisonment. Not having a GSC would also put you at risk of a Housing Act 2044 prosecution or civil penalty.

      Letting out a property at EPC F rating is also a prosecutable offence. So having an EPC would be, you know, a good idea.

      So, on the whole, bad idea…

  14. Ha ! My knowledge gap is duly filled and corrected . But then my follow on question is , is it just the GSC that can render a s.21 unservable or any pre tenancy document.

    so far guidance just seems to be GSC. Up onto this case documents could Simply Be reserved at any point with the S21.

    And (yep here is another Q) if this GSC situation does stick isn’t this effectively an assured tenancy?

    • So far, EPC and ‘How to rent’ can be provided at any point before a s.21 (not with it). Deposit protection and prescribed information has to be done at the right time, otherwise deposit must be returned.

      Yes, if Trecarrell and Shooltz are right, then breach removes s.21 once and for all.

  15. Thanks for your thoughts. Oooffff that’s a pu punishment and a half for a landlord .

    Looking forward to seeing how the appeal goes

  16. Can’t wait for this one, numerous learned judges and QC’s pontificating on the merits of GSC’s when none of the aforementioned people would know the difference between a pilot light assembly and a three way valve even if these parts bit them on the backside, let alone the difference between service and installation pipework.

    • Fortunately, they won’t have to, as none of that is relevant to the issues on appeal. Which is the effect of the wording of the AST Regulations – the kind of thing that judges and lawyers are good at.

  17. Giles why do you think the judges have come to this conclusion regarding no s,21 unless GSC served at the start whenf tenant moving in.

    Surely this wasnt the design of s.21 yet the judges seem to have placed significant weight on the correct issuing and timing of these documents .

    OR are they simply following the law to the letter and it just so happens two pieces of legislation clash and judges have to make a decision

    Your thought as always greatly welcomed , thanks JT

  18. As the Trecarrell House Limited v Rouncefield,case has been given permission to appeal to the Court of Appeal is there now a transcript available of the County Court judgment?

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