A recent County Court judgment suggests that to serve a valid section 21 notice, a gas safety certificate will need be provided to the tenant before the tenancy commences. Zoe Taylor and Lucy Parkhouse from our property litigation team look at what this means for landlords of residential properties.
What is a section 21 notice?
A section 21 notice is usually referred to as a ‘no fault possession’ notice, as landlords do not have to provide a reason for reclaiming possession of the property. The notice is served by landlords to their tenants, to begin the legal process of ending an AST pursuant to the Housing Act 1988.
The notice is used as a way of notifying the tenant of the landlord’s intention to repossess the property. Service of a notice will not entitle the landlord to possession. If the tenant does not vacate after the expiry of the notice period instead, the landlord will be required to obtain a possession order from the courts.
Serving a valid section 21 notice
To serve a valid section 21 notice, landlords must comply with the specific prescribed requirements. One of these requirements states that landlords must give a copy of the latest Gas Safety Certificate (GSC) to the tenant before serving the notice. The GSC must be up-to-date within 12 months of the commencement of the tenancy. In June 2020, the Court of Appeal confirmed that a GSC could be served after the commencement of the tenancy, providing it was served on the tenant before the service of the section 21 notice (Trecarrell House Limited v Rouncefield (2020))
However, in the more recent County Court case Byrne v Harwood-Delgardo (2022), the Circuit Judge confirmed that to validly serve a section 21 notice, landlords need to supply a GSC to the tenant before the tenancy begins. In essence, this means that if a landlord did not obtain a GSC prior to the commencement of the tenancy, the position will be irremediable, and the landlord will be unable to serve a valid section 21 notice to end the tenancy.
It is important to note that this ruling is not binding, however it will be a useful defence for tenants opposing a section 21 notice and other judges may be persuaded by the narrative adopted in this case.
This decision may be appealed in the coming months, however at present, the landlord is unable to terminate the tenancy unless the tenant is in breach of any covenants pursuant to the tenancy. If there is a tenant breach of covenant, there may be an opportunity for the landlord to serve a notice pursuant to Section 8 (Schedule 2) of the Housing Act 1988 (Section 8 Notice).
Landlords will have a keen eye on whether this decision is appealed or is overturned in subsequent court proceedings.
Implications for landlords
In light of the decision in Byrne, landlords should ensure that they have provided the prescribed information prior to the commencement of an Assured Shorthold Tenancy, which includes:
- An up-to-date GSC, which should be dated no more than 12 months at the time it is served to the tenant
- A written Assured Shorthold Tenancy Agreement
- Where a deposit is taken, the deposit must have been protected by a tenancy deposit scheme, and a certificate should have been provided to the tenant
- An Energy Performance Certificate
- An up-to-date version of the ‘How to Rent’ guide.
If the landlord fails to provide the prescribed information including the GSC prior to the commencement of an Assured Shorthold Tenancy, and the decision in Byrne is applied in further applicable cases, then the landlord will have no other choice other than to wait for the tenant to breach a covenant to serve a section 8 notice.
Our property litigation team is experienced in advising residential landlords. If you have you any questions regarding how you can ensure your section 21 is valid, please contact us on 01772 258321.