The Supreme Court has refused to grant permission-to-appeal to the tenant in the important section 21 notice case, Trecarrell House Limited v Rouncefield.

In June 2020 the Court of Appeal ruled in a 2-to-1 majority decision that late service of a gas safety certificate does not prevent a landlord from serving a section 21 notice on their tenant, provided the certificate has been given to the tenant before service of the section 21 notice.

The tenant in Trecarrell House Limited v Rouncefield had sought to overturn the Court of Appeal’s decision in the Supreme Court.

A panel from the Supreme Court consisting of Lord Briggs, Lord Stephens and Lady Rose have now rejected the tenant’s application on the basis that the application does not raise a point of general public importance.

The panel made the decision on the basis of written submissions from both parties’ lawyers.
It is standard practice for applications for permission to appeal to the Supreme Court to be decided by a panel of three justices without a hearing.

Anthony Gold Solicitors together with barristers Justin Bates and Brooke Lyne of Landmark Chambers acted for the landlord in the Court of Appeal and the Supreme Court. The landlord’s successful appeal to the Court of Appeal was supported by the National Residential Landlords Association.

Senior associate solicitor at Anthony Gold, Sarah Cummins, who acted for the landlord, said:
“The Court’s decision will be welcomed by private sector landlords who feared that a failure to provide the gas safety certificate before occupation permanently prevented them from recovering possession of their properties.

“It has been nearly two years since the Court of Appeal’s judgment and the Supreme Court’s decision to refuse to hear the tenant’s appeal now brings some certainty to this difficult area of law.

“There is no requirement for the Supreme Court to explain its reasons, but it may be that the promised abolition of section 21 notices played some role in the court’s decision to refuse permission to appeal.”

Where does this leave landlords?

The Supreme Court’s decision means that the interpretation of the law accepted by Court of Appeal’s in June 2020 remains binding on District Judges who deal with possession claims.

The Court of Appeal’s decision was greeted as a good outcome for landlords. It has meant that where a landlord has failed to provide a new tenant with the last gas safety certificate before occupation they are able to remedy this by providing the certificate late. That was a welcome relief to the many responsible landlords fearful that accidental mistakes in providing tenants with certificates could result in them permanently losing the ability to serve a section 21 notice.

Furthermore, a failure to complete a subsequent annual check on time will not bar the landlord from serving a section 21 notice provided the certificate is given to the tenant prior to serving the section 21 notice. Again, this will be reassuring to landlords particularly in recent circumstances where arranging gas safety inspections has been a challenge.

The Court of Appeal’s decision, however, did not resolve all the issues that have arisen since gas safety was linked to the section 21 procedure in 2015. There are still difficult questions left unresolved.

For example, what does this mean for a landlord who has failed to carry out a gas safety check at all before the tenant goes into occupation? Are they able to rectify this breach and serve a valid s21 notice?

While the Court of Appeal determined that late provision of the initial gas safety certificate is remediable, they do not go so far as to say that all historic gas safety breaches, including failing to actually have a certificate before the commencement of the tenancy, are capable of remedy.

In addition, the gas safety regulations only require landlords to retain the gas safety certificate for two years from the date of the check which means even where a check has been carried out before the start of the tenancy, landlords may face difficulties remedying the breach later or proving that they have done so.

Senior Associate Solicitor at Anthony Gold, Robin Stewart, comments:

“The Supreme Court’s decision not to allow a further appeal marks the end of one chapter of litigation concerning section 21 notices and gas safety certificates, but this issue is not going away.

“Trecarrell will not be the last case to address these issues because there is still significant uncertainty about how to interpret some aspects of the law concerning section 21 notices.”