We are pleased to provide a timely update for residential landlords in respect of their duties concerning compliance with gas safety and electricity regulations.
The much awaited appeal of Trecarrell -v- Rouncefield was handed down in the Court of Appeal earlier today. The appeal was challenging the earlier decision that a s.21 Notice (the prescribed notice which a landlord must give to their tenant to begin the process of obtaining possession of a property let on an assured shorthold tenancy) could not be served where the landlord had failed to provide the tenant with a Gas Safety Certificate (“GSC”) prior to them taking occupation.
The Court of Appeal concluded that the failure to provide a gas safety certificate prior to a tenant’s occupation in fact does not prevent a landlord serving a s.21 notice (provided that the relevant GSC has been given prior to service of the notice).
Therefore, a s.21 notice can be given provided that the landlord gives (prior to service of the s.21 notice) the tenant:
- a copy of the GSC that was valid before they took occupation; and
- a copy of any GSC produced after further inspection.
The Court of Appeal stated it was not fatal that the GSC produced in January 2017 was not provided to the tenant until November 2017.
Therefore, a failure to provide the original GSC prior to the tenant taking occupation will not invalidate a s.21 notice, but it has to be delivered before service of the s.21 notice.
In addition, the failure to carry out an annual gas inspection on time is not fatal, provided the copy GSC is provided before service of the s.21 notice.
We remind residential Landlords in England that most tenancies created or renewed on or after 1 July 2020 will require an electrical inspection and a report on the condition of the property (EICR) performed by a qualified person. Any pre-existing tenancies require an EICR to be performed before 1 April 2021. Your residential properties must meet the 18th Edition of the Wiring Regulations and you must have a report that shows this from a qualified person. The standard EICR lasts five years but as this can be shorter, we recommend the date is checked and it is replaced before expiry to ensure its validity.
The main requirements are:
(a) an EICR must be given to all tenants before they occupy the property;
(b) when the EICR is replaced a copy of the new report must be provided to tenants within 28 days of the inspection;
(c) any written request by a tenant (or prospective tenant) for a copy of the EICR must be provided within 28 days; and
(d) if the local authority requests the EICR it must be provided within seven days.
A failure to comply with the regulations can attract a fine of up to £30,000 plus costs.
The laws and regulations affecting residential tenancies continue to evolve and are becoming increasingly complex. Indeed, we have found some landlords, even those using agents, are unaware that they are not in compliance which can create real (and potentially expensive) problems or issues at a later date. As good practice, we consider it prudent that competent landlords should check their position and their agreements with us and, at a minimum, ensure the EPC, GSC and EICR are provided before the tenant(s) takes occupation and that the necessary frequency of checks are diarised, undertaken and certificates provided as soon as possible.
If you require practical advice or guidance in respect of either the law and/or your responsibilities then please do not hesitate to contact Robert Kay or Daniel Blake in our Dispute Resolution team.
Please note – this article does not constitute legal advice.