When do you have to give a gas safety or energy performance certificate to a tenant for a Section 21 notice to be valid?
The Gas Safety (Installation and Use) Regulations 1998 impose various obligations on residential landlords. One is the requirement to carry out an annual gas safety inspection, to give tenants a copy of this certificate within 28 days and to give the current certificate to any tenant before they occupy the property.
S21A Housing Act 1988 provides that a Section 21 notice cannot be served on a tenant by a landlord if the landlord is in breach of one of the ‘prescribed requirements’. One of the prescribed requirements is that the landlord must serve a gas safety certificate on a tenant.
In the case of Trecarrell House Ltd v Rouncefield 2020 EWCA Civ 760, the brief facts were that the landlord failed to give the gas safety certificate to the tenant before or at the start of the assured shorthold tenancy (AST) but did provide one before service of a Section 21 notice. The tenant did not vacate the property and the landlord’s claim for possession was then defended and the landlord was granted possession. The tenant appealed stating that the gas safety certificate had not been provided before the start of the AST.
In the first instance the court held that the fact that the landlord did not give the certificate prior to occupation was a breach that could not later be remedied but the landlord was then given permission to appeal.
On appeal it was held that the correct construction of S21A and the Regulations was that the time period for compliance was disapplied and so a Section 21 notice can be served on a tenant as long as the landlord has, before serving the Section 21 notice, given a copy of the gas safety certificate to the tenant (along with copies of any further certificates from subsequent inspections).
Good news for landlords who have been slack at giving certificates.
Energy Performance Certificates
Regulation 2 Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 provides that a landlord cannot serve a Section 21 notice unless it has provided the tenant with an energy performance certificate (EPC) and gas safety certificate.
In June 2021, the case of Minister v Hathaway and another  EWCA Civ 936 (23 June 2021), the Court of Appeal considered the validity of a Section 21 notice where the tenancy commenced prior to 1 October 2015 and the landlord had not provided the tenant with an EPC before serving the notice.
The tenant took a one year assured shorthold tenancy of a flat from 19 March 2008. From 19 March 2009, the tenant occupied the flat under a statutory periodic tenancy which continued month to month. The landlord served a Section 21 notice on 6 December 2018 but it had not previously served an EPC. The landlord sought possession of the flat, but their claim was dismissed by the district judge on the basis that the failure to serve the EPC rendered the s.21 notice invalid. A High Court judge concluded that service of an EPC was not required and that the s.21 notice was valid. The tenant appealed to the Court of Appeal but the appeal was dismissed.
The Court of Appeal held that the Section 21 notice was not invalidated by the landlord’s failure to serve an EPC. The requirement to provide prescribed information to the tenant, including information about the EPC, only applied to assured shorthold tenancies in existence on or after 1 October 2015. From 1 October 2018, the Secretary of State had the power to extend the scope of Regulation 2 to any existing assured tenancy but this power has not been exercised.
Again, welcome news for landlords. Where an AST of property in England was granted before 1 October 2015 and has not been renewed since that date,
there is no obligation for the landlord to provide the tenant with an EPC or gas safety certificate for the purposes of serving a Section 21 notice. However, a landlord may decide it prudent to provide these in any event before serving a Section 21 notice.