The Court of Appeal has (on 18 June 2020) handed down judgment in the appeal of Trecarrel House v Rouncefield  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  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).