On the First Day of Christmas....

…. real estate disputes partner, Paul Henson, gives us a summary of a recent case which offered some welcome relief to residential landlords. This is the first in a series of 12 articles in which our disputes team look back over the key real estate decisions of 2020*

In June 2020 the Court of Appeal brought some welcome relief for residential landlords wishing to rely on section 21 of the Housing Act 1988 (“Act”) notices to recover possession of a property let on an Assured Shorthold Tenancy (“AST”) in the case of Trecarrell House Limited v Rouncefield (2020) EWCA CIV 760.

Concern had been raised amongst the residential landlord community as a result the Gas Safety Inspection and Use Regulations 1998 (“Regulations”) which requires a landlord to carry out an annual gas safety inspection and provide the Gas Safety Certificate (“GC”) prior to their tenant taking up occupation. These concerns were exacerbated after a 2018 case where HHJ Luba QC (a housing law specialist) had decided in the (non-binding) county court decision of Caridon Properties v Monty Shooltz that a landlord who failed to give a new tenant a copy of the GC before they moved in was forever unable thereafter to serve a section 21 notice to terminate the tenancy.

This led to tenants raising such arguments (where applicable) across the country and landlords becoming increasingly concerned that they may not be able to terminate an AST unless they could make out a “fault” ground and serve a notice pursuant to section 8 of the Act. That, of course, would have required the tenant to be “at fault” and meant that landlords might not be able to recover possession of their properties when they required them.

It was therefore a welcome relief that the Court of Appeal (2:1 majority) decided that, as long as there was a valid GC when the tenancy began, a landlord can still serve a section 21 notice provided they serve the GC before or at the same time that they serve such notice. In other words, they can rectify their failure to comply with the Regulations at a subsequent time. Importantly, the GC still needs to be “in date” when the tenant moves in but they can be provided with it after they have commenced occupation and the landlord can still rely on this to then serve a section 21 notice.

The position is, as we understand it, subject to a potential appeal to the Supreme Court but for now the panic caused in the world of residential property has been abated.

Of course, the Coronavirus and the subsequent temporary changes to notice lengths and the possession process means that obtaining possession of residential property is as technical and complex as ever with many traps for the unwary. We recommend residential landlords seeking possession obtain legal advice and contact one of the Real Estates Disputes Team at the earliest convenience.

* Yes, we know we are starting our 12 days of Christmas early, but we just couldn't wait!