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For safety's sake – failure to supply gas certificate can be remedied

Posted on 28 July 2020

Under the Gas Safety Regulations, landlords of tenancies under seven years are required to carry out annual gas safety checks on gas appliances. They must also give their tenants a copy of the up to date gas safety certificate, both at the beginning of the tenancy and within 28 days after each fresh safety inspection. The penalties for failing to do so may include fines and imprisonment.

In 2015, courtesy of the Deregulation Act, a further penalty was added to the list: failure to give the tenant an up to date gas certificate prior to the start of the tenancy and following annual testing, now prevents the landlord from serving a so-called "section 21 notice" to bring an assured shorthold tenancy to an end.

Causing a shiver down many a landlord's spine, the county court in 2018 applied a literal interpretation to the legislation. It ruled that a landlord's failure to supply a current certificate at the beginning of the tenancy could not be remedied by handing over the certificate later on. The landlord would never be able to terminate the tenancy unless the tenant was in breach of its obligations under the tenancy.

However, landlords can breathe a sigh of relief following the Court of Appeal's June 2020 decision in Trecarell House Limited v Rouncefield. The court took a more reasoned approach to the legislation; the purpose behind the regulations is to ensure the safety of the tenant. It would be disproportionate to withdraw the right to serve a section 21 notice where all relevant safety checks have been completed, but a purely administrative oversight means that a copy of the certificate wasn't supplied to the tenant at the beginning of the tenancy.

This means that so long as landlords can prove that they carried out the correct gas safety checks at the right time, any failure to give the tenant a gas safety certificate at the beginning of the tenancy can be remedied to allow a section 21 notice to be served.

Therefore the advice to landlords remains clear: make sure you do a proper gas safety check once a year; give the tenant a copy of the most recent certificate at the start of the tenancy; and give the tenant a copy of the new certificate within 28 days after each safety inspection.

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