Section 21: Industry relief for court ruling over possession claims

A legal expert says the Court of Appeal ruling on S21 possession orders last week has resolved one of the most contentious outstanding debates on the subject.

In the case of Trecarrell House Limited v Rouncefield the Court has confirmed that landlords can evict a tenant by a section 21 notice even if they haven’t provided an up to date Gas Safety Record at the beginning of the tenancy.

The majority of the Court held that in respect of the ability to rely on a S21 notice, failure to give the GSR before the tenant begins to occupy can be remedied by giving it at any time before service of a S21 notice.

The case itself was heard earlier this year and the rental sector in England and Wales had been waiting for the outcome of this important decision.

The judgment hinged on whether a landlord’s failure (or that of an agent acting on a landlord’s behalf) to provide a gas safety certificate before the tenant’s occupation is a breach of the prescribed requirements to serve a valid S21 notice under the Housing Act 1988. 

In particular, the most serious aspect of the appeal decision was whether this initial failure before the tenant occupies the property is a “once and for all obligation” failing which results in an absolute bar to serve a S21 notice, also referred to as a no-fault eviction.

This was a particularly important case for landlords as a mistake of this type by a landlord or its agent would have consequences far greater than other breaches of legislation, which can be remedied or resolved in order to serve a fresh notice.

Tony Kent, head of the property litigation team at Mackrell Solicitors, says: “For landlords this decision comes as an enormous relief since the consequences of the ruling of the lower Courts have seemed disproportionately severe for them, especially when there is a GSR is in existence and the landlord or their agent had either forgotten to serve it or the tenant has denied receipt at the beginning of the tenancy.”

Kent is encouraging landlords to come forward and seek advice on their current position and documentation well in advance of the expiry of the current eviction ban later this year.

He also draws attention to the key element in the leading ruling from Lord Justice Pattern, which states:

“Although the point is not straightforward, I am not therefore persuaded that for the purposes of S21A the obligation to provide the GSR to a new tenant prior to the tenant taking up occupation cannot be complied with by late delivery of the GSR.  Late delivery of the document does provide the tenant with the information he needs. 

"If a breach has the consequence for which Mr Cherry contends then that must apply in every case of late delivery even if the delay is only minimal.  

"This seems to me an unlikely result for Parliament to have intended particularly in the light of the express rejection of the 28 day deadline under paragraph (6)(a). 

"Many ASTs are granted for fixed periods of one year or less so that in practice the landlord’s inability to rely upon s.21 will provide a strong incentive for the timely compliance with paragraph (6)(b). 

"As a matter of construction, I therefore prefer the view that as a result of regulation 2(2) the time when the landlord “is in breach” of paragraph (6)(b) ends for the purposes of s.21A once the GSR is provided.”

The decision of the Court was not unanimous with Lord Justice Moylan disagreeing with the decision. It is believed that an appeal is being considered.