Introduction
Section 21 of the Housing Act 1988 (“the 1988 Act”) provides Landlords with a way to evict assured shorthold tenants without any reason. However, to do so Landlords must jump through a number of procedural hurdles, including the service of the documents prescribed by section 21A of the 1988 Act before the service of the section 21 notice (“the Notice”). One of those documents is the Gas Safety Certificate (“GSC”). In Trecarrell House Limited v Rouncefield[1], the Court of Appeal held that late service of a GSC could be remedied prior to service of the Notice. However, the court left one very important question unanswered – namely: whether the failure to have a GSC in place at the commencement of a tenancy is fatal to a Landlord’s claim for possession under section 21? This question has now been answered in a non-binding County Court Appeal, Byrne v Harwood-Delgado.[2] Given the severe consequences of Byrne for Landlords, this article seeks to assess the merits of the decision and provide both Landlords and Tenants with a clear answer.
Byrne v Harwood-Delgado
Byrne involved a claim by the Landlord for possession under the section 21 accelerated procedure.[3] The Tenant took up occupation of the property under an assured shorthold tenancy dated 19 August 2019. The Landlord asserted that a GSC was in place at this time. Subsequently, the Landlord served a GSC in November 2019 dated 16 September 2019 and another in October 2020. The Landlord then served a Notice on 7 November 2020 and when the Tenant did not comply with the Notice, issued proceedings. At first instance, a possession order was granted. However, on appeal, the possession order was set aside by HHJ Bloom. The Learned Judge held that failure to have a GSC at the commencement of the tenancy was an irremediable breach of regulation 2(1)(a) and 2(2) of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulation 2015 (“the 2015 Regulations”), and thus, an irredeemable breach of section 21A.[4]
Analysis
The critical question is whether it is correct that failure to have a GSC at the commencement of a tenancy agreement places an absolute bar on a Landlord using the section 21 procedure. The requirement considered in Byrne was regulation 2(2) of the 2015 Regulation – namely, the “requirement on a landlord to give a copy of the relevant record to the tenant”. What this requirement involved in the case of a new tenant was the subject of HHJ Bloom’s decision. In this author’s view, the Learned Judge’s decision that regulation 2(2) can only be complied with by service of a GSC existing at the commencement of a tenancy is faultless. Specifically:
- Parliament has distinguished between new and existing tenants within regulation 36(6) of the Gas Safety (Installation and Use) Regulations 1998 (“the 1998 Regulations”). Specifically, regulation 36(6)(a) provides that the annual GSCs are to be provided to the Tenant “within 28 days of the date of the check”. It is evident, as noted by HHJ Bloom, that this requirement cannot be met by the service of the GSC years after the commencement of the tenancy.[5] Therefore, a Landlord must seek to satisfy regulation 36(6)(b) if they are to comply with the 2015 Regulations;
- regulation 36(6)(b) of the 1998 Regulations requires that “a copy of the last record made in respect of each appliance of flue is given to any new tenant in relevant premises to which the record relates”. Taking the natural meaning of these words and a Landlord’s duties under the 1998 Regulations, “the only logical meaning” of the words is that regulation 36(6)(b) refers to a record that existed before the tenant occupied the Property;[6] and
- Trecarrell cannot be used to “suggest that there was no obligation to give a GSR to a new tenant” nor that “delivery of a GSC at any time is enough”.[7] This is because the Court of Appeal in Trecarrell envisaged that a GSC will be in place at the commencement and that the way to remedy any breach would be to make a “late delivery” of the GSC.[8]
Accordingly, regulation 2(2) of the 2015 Regulations can only be complied with if a Landlord serves the GSC valid at the time of the commencement of the tenancy.
The question of what the necessary consequence of the failure to comply with regulation 2(2) of the 2015 Regulations then arises. The Learned Judge held that it was an absolute bar on using section 21. However, is this one step too far? As noted by HHJ Bloom, it is correct that a Landlord cannot rely upon Trecarrell to assert that an absolute bar on the use of section 21 by a failure to have a GSC at the commencement of the tenancy is “draconian” and disproportionate. Trecarrell was concerned with an “administrative oversight” – namely, that the Landlord had the GSC in place at the commencement but had omitted to serve it until prior to the Notice.[9] However, cases such as Byrne are of a different species since they involve “a serious failure to comply with substantive requirements that have a criminal sanction but also exist to ensure as a matter of fact that properties are safe”.[10]
As a result of the above, the following question then arises – how are the courts to correctly give Parliament’s intended meaning and purpose to the 2015 Regulations and section 21A of the 1988 Act? It is this author’s opinion that Parliament created these legislative provisions to protect the health and safety of tenants. Such an intention does not expressly necessitate an absolute bar on section 21 for a breach of the aforementioned provisions. However, the Learned Judge was correct in asserting that if a breach of the provisions was not fatal that the provisions would have “no meaning”.[11] Without any meaning, a Landlord would be able to ignore the 1998 Regulations until just before they wish to serve a Notice. Allowing this would clearly be driving “a coach and horses through the legislative intention to protect occupiers’ health and safety”.[12] Therefore, it is this author’s view that the only way to force compliance with the same would be to interpret the requirement as the Learned Judge did and render a breach of the same as fatal to any section 21 notice. Although there is also a potential criminal sanction for this breach, the penalty of losing the use of section 21 is a significant penalty for any Landlord and will likely compel them to comply with the prescribed requirement; therefore, giving meaning to the legislative provisions.
In conclusion, it is this author’s opinion that HHJ Bloom’s decision is the correct interpretation of the 2015 and 1998 Regulations. The consequent effect of the regulations is that a Landlord’s failure to have a GSC at the commencement of a tenancy agreement is fatal to a Landlord using the section 21 procedure to recover possession.
The Effect of Bynre
As recognised by many housing practitioners and judges, the effect of Byrne is fundamental. While this is not a binding decision, it has become extremely persuasive and is being more regularly applied by the courts. The consequence of this is that Landlords who do not have a GSC in place at the beginning of a tenancy are now absolutely barred from using the section 21 procedure to recover possession. These Landlords can now only evict their tenants using section 8 of the 1988 Act with reliance on at least one of the grounds for possession found in Schedule 2 of the 1988 Act.
Resultant of the extreme effect of Byrne, some have tried to look for a way around it. One such attempt has been to ask the Tenant to enter into a replacement tenancy. In this author’s opinion, this is not an operable solution to Byrne for Landlords. Regulation 36(6)(b) of the 1998 Regulations provides that the GSC to be served is “before that tenant occupies those premises” and both Trecarrell and Byrne focus on the GSC at the time when occupation commences. It is a highly unattractive argument to aver that occupation restarts upon entering into a new tenancy. This is because many ASTs expire and become statutory periodic tenancies which are a form of replacement tenancies under section 21(7) of the 1988 Act. If all of the prescribed requirements were to be complied with upon every replacement tenancy it would be overburdensome on Landlords and divergent to the courts’ current practice in possession proceedings. Moreover, Superstrike Ltd v Rodrigues[13] is of no assistance to Landlords for this workaround since it concerns the interpretation of “tenancy”, not “occupation”. In this author’s view, the only possibility of sidestepping around Byrne is where the tenancy became a statutory periodic tenancy prior to 1 October 2015. This is because, in such circumstances, the 2015 Regulations, and thereby, regulation 36(6)(b) of the 1998 Regulations, does not apply following Minister v Hathway.[14] Thus, even if they have failed to have a GSC at the commencement of the tenancy, Landlords will not be barred from using section 21 in these circumstances.
Conclusion
In this author’s opinion, HHJ Bloom’s decision that the failure to have a GSC at the commencement of a tenant’s occupation of the Property is an irredeemable breach of the 1998 Regulations, and thus, of section 21A is both unsurprising and correct. The Learned Judge gave the intended and only logical meaning to section 21 of the 1988 Act and the 2015 and 1998 Regulations. As a result, Landlords are now compelled to comply with these provisions or face the consequences. The decision, while punitive, appears to be the only correct way to interpret the regulations. It is going to be interesting to see if and how HHJ Bloom’s ratio is applied by the courts going forward.
PALLANT CHAMBERS
2 AUGUST 2023
[1] [2020] EWCA Civ 760.
[2] (Luton County Court, 21 June 2022), HHJ Bloom.
[3] Byrne, [4].
[4] ibid, [43].
[5] ibid, [35].
[6] ibid, [34] & [36].
[7] ibid, [44].
[8] Trecarrell, [30].
[9] Byrne, [40]
[10] ibid.
[11] ibid, [43].
[12] ibid, [42].
[13] [2013] EWCA Civ 669.
[14] [2021] EWCA Civ 936.
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Commercial, Employment, Family, General Civil, Insolvency, Property and Planning, Town and Village Greens, Will Disputes