Byrne v Harwood-Delgardo. Luton County Court. 21 June 2022. (Copy of Judgment)
In my comments to our post on the Court of Appeal judgment in Trecarrell House Limited v Rouncefield (2020) EWCA Civ 760, I pointed out that the judgment only addressed late provision of a gas safety certificate for the period covering the start of the tenancy, not what happened if there was no current gas safety certificate at the start of the tenancy. That, I speculated, would quite possibly still make service of a section 21 notice impossible, without possibility of redemption.
And in this County Court appeal judgment, by HHJ Bloom, who certainly knows her housing law, so it has come to pass.
The appeal was of a first instance decision by a DJ making a possession order on the basis that a subsequent gas safety certificate had been served. There was an unresolved factual dispute as to whether the GSC at the start of the tenancy had in fact been provided, but that remained unresolved. The appeal was on the issue of whether the absence of a GSC at the start of the tenancy prevented any subsequent service of a s.21 notice.
In a very detailed judgment, HHJ Bloom held that it did.
The only logical meaning of the prescribed requirement in relation to paragraph 6(b) is that the GSR must be the last one before the tenant moved into occupation. The words “last” and “new” read with the word “relevant” in Regulation 2(2) on their natural meaning lead to the inevitable conclusion that what is intended is a GSR that existed when the tenant went into occupation. If one adopts the argument of the landlord that all that is required is to provide the most recent record to the tenant, then the word “new” is lost in paragraph 6(b). All that one is required to provide is the “last” record to the tenant. In addition, it is clear that the Court of Appeal saw a difference between the two parts of Regulation 36(6). Parliament intended that the prescribed requirements covered both types of tenant. The approach of the landlord means that the two paragraphs are indistinguishable. Both tenants whether new or existing would comply with the prescribed requirements if served with any GSR provided it was served before the section 21 notice. It is very difficult to see how that was the intention of the legislature given the two different routes provided . Indeed, the Court of Appeal was clear that 36(6)(b) was not to be excluded (see para 19 of Trecarrell House).
The failure was a substantive not a procedural or administrative one. That distinction had been acknowledged in Trecarrell.
However, in reading and interpreting s21A and Regulation 2, the court has to have in mind that there is a prescribed requirement to provide the last record to the new tenant. It was intended to ensure that basic checks had been done before tenants took up occupation. Parliament may not have intended that the prescribed requirement had the force of the 1998 regulations as regards late delivery but it did envisage a basic minimum that there were checks before occupation. I have considered the collateral nature of this legislation and understand why the Court of Appeal considered a mere procedural error should not undermine the tenancy. None of the comments by Patten LJ and King LJ suggest that they considered that a failure to carry out any checks before occupation was not a breach of the prescribed requirements. I take account of all that was said in Trecarrell House about the primary sanction being the criminal sanctions. However, that was said in the context of a procedural failure rather than a substantive failure.
The upshot may turn “the tenancy into something that the parties did not envisage but the remedy is to comply with the Regulation 2(2) and obtain the relevant record before the tenant moves in.”
Appeal allowed and matter remitted to a different District Judge on the factual dispute.
Comment
I can’t lay any great claim to prescience, this was the obvious question after Trecarrell. And there is a clear distinction between late provision of a GSC which covered the start of the tenancy and the absence of a valid GSC at the start of the tenancy. There is no clear reason why a subsequently obtained GSC should redeem that failure, and, as HHJ Bloom points out, some strong policy reasons why the failure should not be condoned as the intention is that the tenant should be moving into a proprty known to be gas safe.
We will have to see if this goes to the Court of Appeal, or whether a subsequent case will have to. In the meantime, as a County Court circuit judge appeal judgment, this is not binding precedent but is persuasive.
And, just when the renters’ reform white paper had me dreaming of retiring the section 21 flowchart, I’m going to have to update it again…
HHJ Bloom may well be right but what an absurd state the law is in. A property may have been perfectly gas safe at the outset and remained gas safe with appliances inspected every year. Yet “a mere procedural error” at the start of the tenancy, perhaps many years previously scuppers the landlord’s application.
By extension, any investor purchasing a tenanted property will be at risk that a predecessor slipped up. Conveyancers need to warn their purchase clients.
Is anyone willing to justify this state of affairs as fair and reasonable? What purpose does it serve apart from setting a trap for landlords?
Not having a valid GSC is not ‘a mere procedural error’. It is a criminal offence, for starters.
So if the GSC has a wrong description of the appliance – eg make and model wrongly filled in – would that invalidate the GSC and therefore invalidate the S21?
Not necessarily. The requirement under reg 36(3) is, so far as relevant, for the GSC to include “a description of and the location of each appliance or flue checked;”. It doesn’t require make/model specifically.
But the GSC itself specifically requires make and model. If these are filled in wrongly then the description is wrong. Surely the “description” in reg36(3)(c)(iv) needs to be accurate?
A GSC is only required to meet the Regs. The Regs require ‘description of and location of each appliance’. They don’t require make/model specifically.
Just been drawn to my attention that Judge Bloom was also presiding judge Caridon v Schooltz
Yes, as she mentions in the judgment.
DOH!
[Edited by NL to avoid any apparent suggestion about an individual – Amy pointed out new grounds for possession in renters reform white paper may allow landlords to escape such an unfixable error.] (I wonder if there will be appetite from the LL side to take these cases to COA if they know s.21 should be short-lived?)
Thank you for this superbly useful blog.
Q1: Should the “last record” referred to in (6)(b) also be pursuant to (3)(c) or are there any other kinds of GSR which are acceptable and can be given to the new tenant (eg a simple customer checklist even though it doesn’t have the address of the property?)
Q2: If a copy of the last record made is given to a new tenant and that record dates from when there was a previous tenant in the property does that mean that in order to be valid that record must also be pursuant to (3)(c)? In other words, does the validity (or non-validity) of the GSR carry over to the new tenant provided that the new tenant has been served with the same GSR?
The GSR has to meet the requirements of (3)(c). That is the answer to both your questions.
Would I be right in thinking that an AST taken out on or pre 1st October 2015 and then renewed post 1st October 2015 would not require a GSR to have been done when the tenanant moved in for the purpose of section 21. The logic being that the tenant would not be considered to be a “new” tenant at the time of the renewed tenancy and the The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 only apply to ASTs taken out after 1st October 2015?
My view is a GSC would be required as of the date of the ‘renewal’ tenancy. But as usual, the position is far from pellucid.
I may be missing the obvious, or just not willing to recognise it, but would this not mean any tenant in this situation could never be evicted without cause and consequently could never have a rental increase (unless their tenancy agreement unusually had rent-review provisions)? Could they not simply refuse to agree to new rental terms (i.e. higher rent) and continue to occupy under the periodic tenancy which retained the rent of the original fixed term?
No section 21 notice could be served. Rent could be increased by section 13 notice during a statutory periodic tenancy as per usual.
Thanks, I just realised this and came back to see if I could delete my question but you were too fast!