Gas Safety and Section 21 Notices – “With you everything’s gas”*

The Court of Appeal has (on 18 June 2020) handed down judgment in the appeal of Trecarrel House v Rouncefield [2020] EWCA Civ 760 ruling on the consequences for the validity of a section 21 notice in landlord and tenant proceedings of late compliance with the Gas Safety (Installation and Use) Regulations 1998. The effect of this decision is to overrule both the County Court decision in this case and in Carridon Property Limited v Shooltz(2018), which had held that failure to serve a gas safety record before a new tenant of an assured shorthold tenancy went into occupation was an irremediable breach meaning that no valid notice pursuant to section 21 of the Housing Act 1988 (‘section 21 notice’) could be served.

Before turning to the decision of the Court of Appeal it is helpful to remind oneself of the legislative provisions relating to gas safety records and section 21 notices that the court was required to interpret. The important points are these:

(1) By amendments made by the Deregulation Act 2015 a new section 21A of the Housing Act 1988 was inserted. This provided that a section 21 notice may not be given at a time when the landlord is in breach of a prescribed requirement.

(2) Regulation 2 of the Assured Shorthand Tenancy Notices and Prescribed Requirements (England) Regulations 2015 made paragraphs 36(6) and 36(7) of the Gas Safety (Installation and Use) Regulations 1998 prescribed requirements for the purpose of section 21A of the Housing Act 1988.

(3) Regulation 36(6) of the Gas Safety (Installation and Use) Regulations 1998 requires a copy of the gas safety record made pursuant to regulation 36(3)(c) to be given to a tenant within 28 days of the check and for a copy of the last record to be given to any new tenant “before the tenant occupies those premises”.

(4) Regulation 36(7) of the Gas Safety (Installation and Use) Regulations 1998 provides that where there is no relevant gas appliance in any room of the tenant, but there is in the building, a copy of the record can be displayed in a prominent position in the premises instead of giving it to the tenant.

The issues that the Court of Appeal had to consider in Trecarrel House Ltd v Rouncefield [2020] EWCA Civ 760 were three:

(1) It was common ground that a copy of the gas safety record had not been given to the tenant prior to her taking up occupation of the property, although there was one and this had been provided prior to the service of the section 21 notice. The question for the court was therefore whether this breach of regulation 36(6)(b) could be remedied by late compliance.

(2) A subsequent gas safety check had been carried out longer than 12 months after the previous one and since regulation 36(3)(a) required a check to be carried out “at intervals of not more than 12 months since it was last checked”, the question for the court was whether this was fatal.

(3) It was contended by the tenant that she had not been given the most recent gas safety record prior to service of the section 21 notice.

By a majority of 2:1 the Court of Appeal decided these issues as follows:

(1) The obligation in regulation 36(6) of the Gas Safety (Installation and Use) Regulations 1998 to provide a gas safety record to a new tenant before that tenant goes into occupation can be complied with late. As long as it is served before or at the same time as the section 21 notice, the section 21 notice will be valid.

(2) Failure to carry out a subsequent gas safety check and provide the record within 12 months is not fatal either. Patten LJ said: “I am not persuaded that a failure to carry out the next safety check within 12 months of the last one means that a landlord cannot comply with paragraph 6(a) as a prescribed requirement if he serves the tenant with a copy of the record once the check has been carried out.”

(3) On the factual issue of whether or not the tenant had been given a copy of the most recent gas safety record, raised in a Respondents Notice, the case needed to be remitted to the County Court for a determination of this point to be made.

In conclusion, the overriding message of this decision is that late compliance will be good for the purpose of a section 21 notice provided there is compliance at the time of or prior to the service of the section 21 notice.

 

*(Timon to Pumbaa in the Lion King).

Appealing a Homelessness Decision Out of Time: A Welcome Sense of Realism Injected by the Court of Appeal in an Age of Legal Aid Advice Deserts

On 30 January 2020 the Court of Appeal handed down judgment in an important case concerned with bringing a homelessness appeal pursuant to section 204 of the Housing Act 1996 after the 21 day time limit prescribed.

The decision is Al Ahmed v Tower Hamlets LBC [2020] EWCA Civ 51 and it involved an appellant appealing out of time because he was unable to find legal advice and assistance to help him issue an appeal. At first instance, the Judge held that there was a good reason for allowing the appellant to bring an appeal out of time. That decision was reversed by the High Court, but the Court of Appeal allowed an appeal and restored the decision of the first instance Judge.

A number of important points arise out of this decision.

The first is the court’s conclusion that the Mitchell/Denton principles do not apply to section 204 appeals and the question of whether or not there is a good reason for allowing an appellant to bring a homelessness appeal out of time.

The second important point is the recognition given by the Court of Appeal to the realities of the post-LASPO climate. At paragraph 34 the Court of Appeal states: “I have summarised the evidence placed before this court by Shelter. It presents a bleak picture of the difficulties faced by homelessness applicants in bringing an appeal under s.204 of the 1996 Act without legal advice and representation, and of the difficulties they may face in finding someone provide those services under legal aid, especially as a result of the post-LASPO shrinkage of the housing advice sector.”

The third important point is that the court stressed that whilst every case depends on its own facts and circumstances, these were factors that could be taken into account. The court explained that: “it would be both surprising and unfair if difficulties of that kind could not be taken fully into account and given appropriate weight in the assessment of whether there was a good reason for failure to bring an appeal in time and, to the extent that it arises as a separate issue, for delay in applying for permission to bring an appeal out of time.”

The court was careful to ensure that this is not perceived as them giving carte blanche to delay and therefore said: “Where an applicant relies on the fact that he was unrepresented and was seeking legal aid as a reason for non-compliance, the circumstances will need to be examined with care, including scrutiny of the diligence with which he acted in seeking legal aid.” However, the willingness by the Court of Appeal to recognise the true position on the ground and that this may be a good reason for not bringing an appeal within time, when such appeals are complex and based on points of law only, is a welcome step in the right direction.

As a final word of caution, the position will be different where the appellant has had legal advice throughout the review. Nonetheless, anyone who has practised in this area of law will have encountered appellants who have only found assistance too late, and this decision offers some hope for such individuals.

Magdalen Chambers are again ranked as a leading set by the Legal 500

Magdalen Chambers is thoroughly delighted to announce that for the fourth successive year we have been rated as a leading set on the Western Circuit by the prestigious Legal 500 directory. The authors mentioned chambers specialism in civil and family law, and our key practice areas of family finance and public children law matters.

They say the family team at Magdalen Chambers is ‘very strong with respect to financial and children work’. In public children law matters, the set has seen a recent increase in instructions involving sexual abuse and non-accidental injuries. They also praise chambers for being equally adept in planning, commercial and insolvency matters”, and for our expertise in property law.

In addition to chambers leading set ranking, 9 individual members were praised by clients for their work in their respective fields, and ranked in tier 1 on the Western Circuit for their expertise.

The editors of the Legal 500 singled out the following areas of law as being particular strengths of chambers’ practice:

  • Commercial, Banking, Insolvency and Chancery Law;
  • Construction, Planning and Environment;
  • Family and Children Law;
  • Personal Injury and Clinical Negligence;
  • Property Law

The members of chambers individually recognised by the directory as being in the top tier of practitioners are:

  • Joint Head of Chambers Michael Berkley for Commercial, Banking, Insolvency and Chancery law, and is described as “A robust advocate with a very good bedside manner” and for his work in Property law they say “Clients are reassured by his confident demeanour”.
  • Joint Head of Chambers Christopher Naish in the field of Family and Children law was described as “Very intelligent, calm, personable, courteous, analytical and thorough”
  • Rupert Chapman, Head of the Family team, was “Recommended for financial remedy cases and private law children matters”
  • Tony Ward recognised for his expertise in family work is also described as “Very experienced in financial disputes”.
  • Head of the Regulatory, Public and Administrative team, Gavin Collett was ranked in tier one, with the editors mentioning that “His practice encompasses planning, highways, and rights of way” and that “he made a successful challenge to the Secretary of State in the High Court”
  • William Hopkin, who heads up the Commercial team, was praised for being “Extremely able at assimilating complex information quickly”
  • Head of the Civil team, and leading property barrister, Russell James was described as having “a niche practice in homelessness law”
  • Carol Mashembo, a senior member of the family team, recognised in tier 1, has been described as “Experienced in cases involving same-sex families”.
  • Jonathan O’Neill was praised as “A specialist in personal injury matters” and for his expertise in property law as “An impressive cross-examiner”

In addition to the plaudits received by chambers’ members, two of our clerking team are mentioned in this years’ publication. Senior Clerk, James Basden and civil clerk Harry Turner were praised by clients for providing “a very effective personable service and are also very commercial in terms of fees” and that solicitors would “thoroughly recommend them”.

Permission granted for Second Appeal in Landlord and Tenant Break Clause Case

Court of Appeal Grants Permission for Second Appeal in Landlord and Tenant Break Clause Case

Lewison LJ has granted a tenant permission to appeal in a case concerning the correct construction of a break clause in a residential letting and the application of sections 21(1A) and 21(1B) of the Housing Act 1988. In particular the case is concerned with whether the express terms of certain starter tenancies used by social landlords require service of a notice complying with section 21(1B) of the Housing Act 1988.

The appellant is represented by Russell James of chambers who specialises in all areas of landlord and tenant and property litigation.

Renting Homes in Wales – Samuel Waritay March 2016 Update

 

In a rather quiet way the Welsh Government has now legislated to do away with 35 years of convoluted tenancy labels, procedures and terms by passing the Renting Homes (Wales) Act 2016 (“RHWA”). The Act is an admirable attempt to codify in simple language hitherto various aspects of landlord and tenant law. There is now statutory resolution to many complex issues which have generated much litigation for decades such as whether acceptance of rent from a trespasser implies a tenancy or licence.  The RHWA  received Royal Assent on 16 January 2016 but it is not yet in force. When the provisions come into force in Wales with very few exceptions there will henceforth be effectively only two types of residential tenancy available in the rental sector. The distinction between a residential tenancy and a “licence” will be a matter of semantics. This simpler approach was recommended by a Law Commission some 15 years ago but was not acted upon. The new Act dovetails very nicely with Part 1 of the Housing (Wales) Act  2014 which requires private landlords and their properties to be registered. This is a very welcome change affecting a million or so renters in Wales.

I highlight the new legislation:

Renting Homes (Wales) Act 2016

  • Passed on 18 January 2016 but not yet in force.
  • New concept of “occupation contract”. Tenants are “contract-holders”.
  • There will be only two types of “occupation contract”

-Secure Contract  – like the old secure tenancies

-Standard Contract – akin to the Assured Shorthold Tenancy in the private sector.

  • Most existing current tenancies will fall into one of the “occupation contracts”.
  • All landlords and properties now to be registered with few exemptions (see Housing (Wales) Act 2014.
  • Landlord must issue written contracts which must have fundamental terms, supplementary terms, key matters and additional terms. Free model written contracts will be available. Contract-holder can be compensated for landlord failure to give written terms.
  • Six month minimum term.
  • Possession Claims to be issued within 6 months of notice.
  • New term/duty that properties to be fit for human habitation in addition to the familiar “section 11” repair duties.
  • No automatic termination of joint occupation contract (joint tenancy) by one contract-holder (tenant) serving notice to quit – The rule in Hammersmith v Monk is abolished.
  • Landlord can exclude one joint contract-holder alone leaving occupation contract still intact.
  • Succession rights for “carers”.
  • Landlords can repossess “abandoned” properties on notice but with no court process.
  • Trespassers become contract-holders with landlords if there is knowing or deemed acceptance of rent for a period of two months without taking action to evict.

 

Housing and Planning Bill

At the time of writing this controversial Bill described by the press as a “drunken festival of deregulation” is making its ways through to the Committee Stage of the House of Lords. The clauses of key import include the following:

  • Local authorities are to promote the supply of “starter homes” which is a new dwelling which is only available for purchase by qualifying first-time buyers and which is made available at price which is at least 20% less than the market value
  • The maximum price that a starter home may be sold to a first-time buyer: the price cap is £250,000 outside Greater London and £450,000 in Greater London.
  • Provisions for the banning of rogue landlords and letting agents with a duty for local authorities to maintain a database of “rogues”.
  • Local authority duties in relation to Rent repayment Orders.
  • Duty on local authority to consider selling vacant high value local authority dwellings.
  • Duty on registered social landlords to charge higher rents to high income social tenants.
  • The need for local authorities to assess and review accommodation needs under Housing Act 2004 in their local area is now broadened to “all people residing or resorting to their district”.
  • Further provision for the fitness to hold an HMO licence is made as is the power to fine such persons as an alternative to prosecution.

 

Samuel Waritay is a door tenant  of Magdalen Chambers and is a landlord and tenant specialist. He is the author of the Housing section of Local Government Precedents and Procedures (Sweet & Maxwell).  

Magdalen Chambers is delighted to announce that Russell James (formerly of Devon Chambers) has joined Chambers from the beginning of February.

Magdalen Chambers is delighted to announce that Russell James (formerly of Devon Chambers) has joined Chambers from the beginning of February.

Russell is an experienced civil practitioner who specialises in Housing and Homelessness Law, Property Litigation, Civil and Commercial Litigation and Personal Injury. He has appeared in the full spectrum of civil courts and tribunals from the First Tier Tribunal to the Supreme Court, with his practise taking him all over the South West and Southern England, including London.

Russell is recommended for property litigation in Legal 500 (2015) where he is described as having “excellent technical skills” and being “knowledgeable about housing law.” He has also appeared in a number of reported decisions including the Supreme Court case of Akerman-Livingstone v Aster Communities Limited [2015] UKSC 15.

For further information, please follow the link to take you to his profile. Or contact James Basden, Senior Clerk on 01392 285 200 or james@magdalenchambers.co.uk

Noticeably Possessed

Take Notice (of Possession): All Change

Renting is big business. With the percentage of private renters in England increasing year on year, it is little wonder that the government is enacting various reforms across the rental sector to further its ‘aspiration’ of ‘a bigger, better private rented sector.’[i] This is making it more difficult than ever for both landlords and tenants to keep abreast of all the relevant regulations and legal formalities that govern even straight forward Assured Shorthold Tenancies. One of the most common issues encountered in residential possession proceedings is the contested validity of notices to quit. A section 21 notice is supposed to be a simple tool enabling a landlord to alert a tenant in advance of the termination of their tenancy leading to its repossession. Unlike a section 8 notice it allows the landlord to repossess their property as of right, and does not require grounds for possession. However, it is highly likely that 2016 is about to see a substantial increase in the number of contested court proceedings relating to the validity of s.21 notices due to changes to their prescribed form.

The typically excitingly named, Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 were laid before parliament on 9th September 2015 and came into force 1st October 2015. Following hot on the heels of a raft of other reforms such as ‘right to rent’ immigration checks and the regulation of Smoke and Carbon Monoxide Alarms (yes really), the changes to s.21 notices are possibly the most far-reaching of all. It is crucial to point out that these reforms only apply to tenancies starting on or after 1st October 2015 and that the previous rules apply to older tenancies and periodic tenancies that ‘roll over’ into this period. The explanatory memorandum to the regulations is well worth reading[ii].

As well as new requirements for information that has to be provided at the start of the tenancy set out in reg. 3, reg. 4 mandates a new form of notice, the ‘Form No. 6A Notice Seeking Possession’ that can be found in the Schedule. This template is now mandatory to use. It replaces the older s.21(1)(b) and s.21(4)(a) notices formerly used for fixed term/periodic tenancies respectively. The crucial differences inaugurated with this new form (in conjunction with the Deregulation Act 2015) are as follows;

  • A s. 21 notice cannot be served within the first 4 months of a fixed term tenancy, preventing the hitherto common practice of serving notice at the same time as the tenancy. This is why the new form can only be served from 1 February 2016 at the earliest (for tenancies that were commenced or renewed in writing on 1st October 2015).
  • There is still a minimum requirement of two months’ notice, but there is no longer any need for it to end the notice on a period of a tenancy. This is a sensible simplification.
  • Notice for fixed term tenancies will only be valid for 6 months from the date of issue. Notices essentially now come with a ‘use-by’ date, so the mantra is ‘use it or lose it’.
  • Notice for rolling or periodic tenancies will similarly only be valid for 4 months from the date of issue.
  • Notice cannot be given in at a time when the landlord is in breach of a ‘prescribed requirement’; either the requirement to provide a free energy performance certificate (EPC) to a tenant and/or the requirement to provide a tenant with a free gas safety record.
  • The notice will be invalid where (i) the tenant made a complaint in writing to the landlord regarding the condition of the property before the notice, (ii) the landlord did not provide a response to the complaint within 14 days/gave an inadequate response, and (iii) the tenant has consequently made a complaint to the local authority who have subsequently served a ‘relevant notice’. This is in order to prevent so-called ‘retaliatory evictions’ and is sure to mark a new area for disputed possessions due to the complexity of the provisions.

These crucial changes are going to affect tenants and landlords alike. There are clearly many new complications that can now arise, in which case Chambers’ experienced Land and Property Team are at hand to assist.

[i] Housing Minister Brandon Lewis, https://www.gov.uk/government/news/new-measures-help-create-a-bigger-better-private-rented-sector

[ii] http://www.legislation.gov.uk/uksi/2015/1646/pdfs/uksi_20151646_en.pdf

Andrew Worthley