Unintended Consequences: Does Trecarrell House dilute the purpose of the Gas Safety Regulations?

This month the Court of Appeal handed down judgment in the case of Trecarrell House Ltd v Rouncefield [2020] EWCA Civ 760 and ruled that a failure to serve a gas safety certificate before a tenant enters in to occupation of the property will not create an absolute bar on residential landlords subsequently relying upon the section 21 eviction procedure.

3PB first-six pupil barrister Alex Leonhardt, in reviewing the case in a detailed article here, considers that the Court of Appeal decision has “too quickly adopted a highly-strained construction of the regulations in light of apparent inconsistency in sanction which may in fact have a principled basis. This decision risks driving a coach and horses through the purpose of Gas Safety Regulations. Although the gap in this case was minor, the reasoning would apply equally to a much larger infraction.”

He states that this Trecarrell House decision “will have some significant, unintended consequences, ” and advises that : “it seems far from clear that a landlord would be prevented from serving a s21 notice even if these records did not exist. I think the net effect would appear to be that, so long as tenants are provided with records of any checks actually carried out, a subsequent s21 notice will be valid. A failure to actually carry out those checks (whether in accordance with Paragraph 3(a) or at all) is irrelevant for the purpose of the validity of that notice.”

As the Court of Appeal was at pains to explain, the AST Notice Regulations are not the only or even principal sanction for non-compliance with the Gas Regulations. A landlord is in breach of the Gas Regulations in themselves if the checks are not carried out within 12 months of the last. It is simply the further sanction of being unable to make use of s21 to seek possession which does not bite in these circumstances.

Alex Leonhardt states: “the purpose of Parliament in attaching this additional sanction to non-compliance was as a further “stick” to ensure substantive compliance with the relevant gas safety regulations and not a merely procedural requirement to provide whatever documentation happens to exist.

The full Court of Appeal judgment in Trecarrell House Ltd v Rouncefield can be read here.

To instruct one of our barristers on a matter relating to this or any other matter, please contact our Property & Estates law practice director Mark Heath on mark.heath@3pb.co.uk.