Cooking on gas? Can a landlord now remedy a failure to provide a Gas Safety Certificate before a tenant moved in – and go on to serve a valid S21 notice

Probably. Judgement has finally been handed down in the case of Trecarrell House Ltd v Rouncefield [2020] EWCA Civ 760, with the Court of Appeal deciding that where a landlord had carried out all necessary gas inspections, but had failed to provide the relevant certificate before the tenant moved in, he could provide it later and subsequently serve a valid S21 notice. However, this still might not be the end of the matter.

How did we get here?

Hardly has an act of Parliament been so misnamed as the Deregulation Act 2015 (“the 2015 Act”). It was the 2015 Act which first prevented a landlord from serving a valid notice under section 21 of the Housing Act 1988 (“the 2018 Act”), where there had been a failure to provide a Gas Safety Certificate.

Service of a S21 notice is a prerequisite to using the “no-fault” possession procedure, which allows the landlord to recover a property let under an assured shorthold tenancy, usually under the accelerated procedure and without a hearing.

The intention was clearly to promote good safety practice – a laudable aim – but the drafting of the actual regulations left the position far from clear.

The logic (dull as ditchwater though it is!) runs as follows:

  • S38 of the 2015 Act inserted S21A into the 1988 Act.
  • S21A(3) prevents the service of a valid S21 notice at a time when the landlord is in breach of a “prescribed requirement”
  • Regulation 2(1)(b) of the Assured Shorthold Tenancy Notices and Prescribed Requirement (England) Regulations 2015 (“the AST Regs”) confirmed that the prescribed requirements included compliance with paragraphs (6) and (7) of Regulation 36 of the Gas Safety (Installation and Use) Regulations 1998 (“the Gas Regs”); these paragraphs relate to the provision of gas safety certificates.

Still with me?

It was the interaction between the AST Regs and the Gas Regs that caused so much confusion. The Gas Regulations[i] require a copy of the last certificate to be given to a new tenant “before that tenant occupies those premises”.

However, the AST Regs state that the requirement to provide certificates 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”.

So, which regulations take precedence? What if the certificate is served on the tenants once they have moved in?

Caridon Property Limited v Monty Shooltz (“the Caridon” case)

In 2018, the Caridon case held that a failure by a landlord to provide a gas safety certificate before a tenant moved into a property was an absolute bar to ever using the S21 procedure in the future. There was nothing a landlord could do to remedy the situation.

In most cases[ii] this meant that for as long as the tenants were complying with the terms of their tenancy agreement, the landlord could simply not recover possession of the property.

Most commentators doubted that this was what parliament had intended; indeed it was questionable whether the bar was in line with a landlord’s human rights. However, for a two year period we were forced to advise clients that unless they could prove that they provided the relevant certificate before the tenants moved in, the S21 notices they had hoped to rely upon were useless.

Trecarrell House Ltd v Rouncefield [2020] EWCA Civ 760 (“the Trecarrell case”)

The judgement in above case, handed down on 18th June 2020, has effectively reversed the position in the Caridon case. With a majority of 2 to 1, the Court of Appeal decided that a landlord could rely on a S21 notice, providing that (at any time before it was served) the landlord had given the tenant (i) a copy of the certificate that was in force when the tenant moved in and (ii) copies of the certificates relating to all subsequent inspections.

In other words, it no longer matters whether the certificate in force when the tenant moved in was provided before they moved in or later, as long as that certificate is provided before a S21 notice is served.

Given the likelihood that thousands of gas safety checks have been missed or delayed by the Covid-19 crisis, this case will be a particular relief for landlords.

So, is the S21/Gas Safety Certificates issue finally settled?

Not necessarily. In the Trecarrell case, the landlord had obtained a gas safety certificate for the period when the tenant moved in, he just didn’t hand it over before the tenant took up occupation. The actual safety of the gas installations was therefore not in doubt. Upon my reading, nothing about the Trecarrell case would provide a remedy for a landlord whose gas safety certificate had, for example, lapsed a day before the tenant moved in. Under those circumstances there would be no possible way for the landlord to serve the correct certificate later.

The Gas Regulations also only require a landlord to keep certificates for two years – so what if the landlord fails to provide the one in force when the tenant moves in, but destroys it before seeking to serve a S21 notice (and is unable to obtain a copy from the gas safety engineer)? Presumably that landlord would still be left without a remedy as the law currently stands.

As for annual gas safety checks (once the tenant is in occupation) the landlord would (paradoxically) also seem eligible to serve a valid S21 notice where such a check has been missed. It is a prescribed requirement to provide evidence of those checks but, strangely enough, not to actually carry them out (though this would be both reckless, criminal and in breach of other regulations). Would a court uphold a S21 notice under such circumstances.

So much for deregulation, eh?

We’ll keep you posted.

Perrin Myddelton have experience in dealing with a wide variety of property disputes. Should you have any queries regarding a property dispute please call Kathryn Dale on 01582 466152 or email

[i] Regulation 36(6)(b)

[ii] The Landlord could still rely on S8 of the 1988 Act, if any of the grounds for possession set out in the Second Schedule to that act could be made out.