42 BR Housing Law Bulletin - Landlords Still Affected by Gas Safety Requirements

Michael Grant discusses the recent County Court appeal of Trecarrel House Limited v Rouncefield, HHJ Carr, County Court sitting at Exeter, 13 February 2019 (unreported)

A year on from the County Court appeal decision in Caridon Property Ltd v Monty Shooltz courts appear not to be dissenting from the detailed reasoning given by HHJ Luba QC, the recent County Court case of Trecarrel House Limited v Rouncefield proving no exception. 

For those needing a recap of the Caridon decision, the following is a brief summary of the issues.

Since the Deregulation Act 2015 came into force, and the consequential implementation of S.21A into the Housing Act 1988, landlords have been prevented from recovering possession of certain residential premises under S.21 of the Housing Act 1988 relating to tenancies that commenced after 1st October 2015 if they have failed to comply with the prescribed requirements as set out under Regulation 2 of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (“AST Regulations 2015”).

Regulation 2 of the AST Regulations 2015 reads:

2.— Compliance with prescribed legal requirements

(1)   Subject to paragraph (2), the requirements prescribed for the purposes of section 21A of the Act are the requirements contained in— 

(a)     regulation 6(5) of the Energy Performance of Buildings (England and Wales) Regulations 2012 (requirement to provide an energy performance certificate to a tenant or buyer free of charge); and 

(b)     paragraph (6) or (as the case may be) paragraph (7) of regulation 36 of the Gas Safety (Installation and Use) Regulations 1998 (requirement to provide tenant with a gas safety certificate).

(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.

Regulation 36(6) of the Gas Safety (Installation and Use) Regulations 1998 (“Gas Safety Regulations 1998”) reads:

(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.

Caridon was concerned primarily with the scope of Regulation 2 of the AST Regulations 2015 on two specific points:

i)          Whether the disapplication of the 28-day time period as prescribed by Regulation 2(2) of the AST Regulations 2015 encompassed both Regulation 36(6) (a) and (b) of the Gas Safety Regulations 1998; and

ii)        Whether the failure to comply with Regulation 36(6) (b) of the Gas Safety Regulations 1998 was a once and for all breach which was incapable of remedy.

In short, HHJ Luba QC found that the answer to i) was ‘no’, whereas the answer to ii) was ‘yes’.

In February of this year, the case of Trecarrel required the County Court to again interpret the scope of Regulation 2 of the AST Regulations 2015; however, this time the matter in issue was Regulation 36(7) of the Gas Safety Regulations 1998, which reads:

(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.

The Facts

An AST was granted on 20 February 2017 relating to a self-contained flat in a domestic property. A boiler outside the premises provided hot water and heating to the flat. It was not in dispute between the parties that no Gas Safety Certificate had been provided or displayed before the start of the tenancy, however the landlord did provide a Certificate prior to the service of the Section 21 Notice on 1 May 2018.

At first instance in the County Court sitting at Truro, DDJ Rutherford found that as the boiler was not within the demised premises and the pipes within it carried water not gas, Regulation 36(6) was not engaged at all. In the event he was wrong on this point, DDJ Rutherford considered the interpretation and scope of Regulation 2(2) and found that the disapplication of the 28-day time period meant that it applied to both Regulation 36(6) (a) and (b), i.e. that there was absolutely no time limit on the provision of the gas record for the purposes of recovering possession under S.21 of the Housing Act 1988.

It is unclear whether DDJ Rutherford had considered the reasoning advanced by HHJ Luba QC in Caridon. In any event, the tenant appealed on the basis that even if Regulation 36(6) did not apply, Regulation 36(7) did, and as a result of the landlord’s non-compliance with Regulation 36(7) it was barred from recovering possession under S.21 of the Housing Act 1998.

The appeal was heard by HHJ Carr.

The Appeal 

HHJ Carr relied considerably on the reasoning advanced by HHJ Luba QC in Caridon, and found that as both parties agreed that if in the event Regulation 36(6) or (7) applied the landlord had breached both of these provisions, the court needn’t concern itself with determining whether the arrangements in the tenant’s flat engaged Regulation 36(6).

HHJ Carr felt that the purpose of the Regulations was self-evident, namely that a tenant needs to be sure prior to moving into any property that the gas supply and appliances are well maintained and safe.

It was held, relying on HHJ Luba QC’s reasoning, that Regulation 2(2) did not disapply the requirement that a landlord needed to provide a gas safety record prior to a tenant moving in to a property.

The Circuit Judge noted that the Gas Safety Regulations 1998 had been amended in 2018 without changing Regulation 36(6) or (7) and suggested that had there been concerns as to their unfairness or need for further clarification they would surely have been amended accordingly.

In conclusion, HHJ Carr held that a failure to comply with Regulation 36(7) was incapable of remedy, and the landlord was forever barred from recovering possession under S.21 of the Housing Act 1988.

Comments

It is understood at the time of writing this article that a case concerning the application and interpretation of Regulation 2(2) of the AST Regulations 2015 is being taken to the Court of Appeal. There are few details on this, but it will certainly put to rest (at least for the time being) the uncertainty caused by the AST Regulations 2015 and the scope of their application.

DISCLAIMER: This bulletin is no more than a summary of the topic or topics, chosen selectively for the purposes of discussion only. It is not legal advice and should not be treated as such. It should not be relied or acted upon in any respect. Recipients should always seek legal advice if proposing to take action following this commentary.

Michael Grant

Call 2009