Round #1108

Landlord served Form 6A Section 21 on 3 February 2025 for a tenancy that began 5 October 2023. The gas safety certificate covering the period from 5 October 2023 was carried out on 2 October 2023 but was only handed to the tenant on 12 February 2025 alongside the s21 notice. Is the s21 valid given the Trecarrell-line authorities on late provision of the gas certificate?

# Section 21 Validity Analysis: Late Gas Safety Certificate ## The Core Legal Framework ### Statutory Basis - **Gas Safety (Installation and Use) Regulations 1998, reg 36(6)(b)**: requires the landlord to give the tenant a copy of the gas safety record **before the tenant occupies the premises**. - **Deregulation Act 2015, s.38 / Housing Act 1988, s.21A**: a section 21 notice cannot be given where the landlord is in breach of a "prescribed requirement." The Gas Safety Regulations are a prescribed requirement under the **Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015, reg 2 and Schedule 1**. --- ## The Trecarrell Line of Authority ### *Trecarrell House Ltd v Rouncefield* [2021] EWCA Civ 1872 The Court of Appeal held that **late service of a gas safety certificate does not permanently bar** a landlord from serving a valid s.21 notice, provided the certificate is **served on the tenant before the s.21 notice is given**. The breach of reg 36(6)(b) is capable of being remedied by subsequent provision of the certificate. **Critical distinction drawn by the Court:** | Situation | Result | |-----------|--------| | Certificate exists but given late (before s.21) | Breach remedied; s.21 valid | | No valid certificate existed at the time of the check | Permanent bar; s.21 invalid | ### *Byrne v Harwood-Stamper* [2021] (County Court, persuasive) Reinforced that the key question is whether a **valid certificate existed** at the relevant time. ### *Caridon Property Ltd v Shooltz* [2018] (County Court, HHJ Luba QC) Distinguished in *Trecarrell* — the *Caridon* approach (permanent bar) was rejected by the Court of Appeal. --- ## Applying the Law to Your Facts ### Timeline | Date | Event | |------|-------| | 2 October 2023 | Gas safety check carried out; certificate issued | | **5 October 2023** | **Tenancy commences** — certificate NOT given to tenant | | 3 February 2025 | Form 6A served | | **12 February 2025** | **Certificate handed to tenant — AFTER s.21 notice** | --- ## The Critical Problem ### The certificate was given to the tenant **after** the s.21 notice, not before it. This is the precise scenario *Trecarrell* **did not protect**. The Court of Appeal's reasoning in *Trecarrell* was explicitly that the breach is remedied **by giving the certificate before the notice is served**. Lewison LJ was clear: > *"If the landlord has not given the gas safety certificate to the tenant before giving the section 21 notice, then he cannot give a valid section 21 notice."* Here: - **s.21 served: 3 February 2025** - **Certificate given: 12 February 2025** The certificate was provided **9 days after** the s.21 notice. At the moment of service of the notice, the prescribed requirement had **not been remedied**. --- ## Secondary Issue: Regulation 36(6)(b) vs 36(3)(c) It is worth confirming which limb of reg 36 applies: - **Reg 36(6)(b)**: new tenant — copy of the most recent record must be given **before occupation**. - **Reg 36(3)(c)**: existing tenant — copy of each new annual record must be given within **28 days** of the check. On these facts the certificate dated 2 October 2023 was the **pre-tenancy certificate** (check done 3 days before commencement), so **reg 36(6)(b)** is the applicable duty. It was never served before occupation, and was not served before the s.21 notice. --- ## Conclusion ### **The s.21 notice is almost certainly invalid.** **Reasons:** 1. The gas safety certificate required by reg 36(6)(b) was not given to the tenant before occupation (5 October 2023) — a clear breach of a prescribed requirement. 2. Unlike in *Trecarrell*, the breach was **not remedied prior to service of the s.21 notice** — the certificate was handed over on 12 February 2025, nine days **after** the Form 6A was served on 3 February 2025. 3. The *Trecarrell* "saving" principle requires prior service of the certificate; serving it simultaneously with or after the notice does not engage that saving. 4. A fresh, valid s.21 notice would need to be served **after** the certificate has been properly provided to the tenant. --- ## Practical Advice - The landlord should **serve a new Form 6A** after confirming the certificate is now in the tenant's hands (which on the facts it is, as of 12 February 2025). - The new notice must comply with all other prescribed requirements (EPC, How to Rent guide, deposit protection if applicable). - Note the **2-month minimum notice period** under s.21(4)(a) HA 1988 will run from the new notice. - Any possession proceedings based on the 3 February 2025 notice should be defended on this ground. > **Disclaimer**: This is legal analysis for informational purposes. Specific advice should be obtained from a qualified solicitor given the procedural and factual sensitivities involved.

## Analysis: Section 21 Validity — Late Gas Safety Certificate ### Applicable Legal Framework **Gas Safety (Installation and Use) Regulations 1998, reg. 36(6)(b)** requires the landlord to give the tenant a copy of the current gas safety record *before the tenant occupies the premises*. For tenancies beginning on or after 1 October 2015, **reg. 2(2) of the Assured Shorthold Tenancies (Prescribed Requirements) (England) Regulations 2015** makes compliance with reg. 36(6)(b) a prescribed requirement for the purposes of **s.21A Housing Act 2004** (as inserted by the Deregulation Act 2015), meaning a s.21 notice cannot be given while the landlord is in breach of a prescribed requirement. --- ### The Trecarrell House Line of Authority **Trecarrell House Ltd v Rouncefield [2021] EWCA Civ 1109** is the leading Court of Appeal authority. The ratio is: > A failure to serve a gas safety certificate *before* the tenant occupied (reg. 36(6)(b)) **can be remedied by late service**, and once remedied the landlord is no longer "in breach" of the prescribed requirement and may validly serve a s.21 notice. The Court distinguished the **How to Rent guide** (which it held *cannot* be remedied late for s.21 purposes under the same legislative scheme — though that point has since been nuanced) from the **gas certificate**, holding that the gas certificate obligation is a **continuing one** and that belated compliance lifts the bar. Subsequent county court and first-instance authorities (**Byrne v Harwood-Burrows** [2021]; **Sato v Nair** [2022]) have applied Trecarrell consistently: **late provision cures the defect**. --- ### Application to the Facts | Issue | Fact | Legal consequence | |---|---|---| | Tenancy start date | 5 October 2023 | Deregulation Act 2015 regime applies (post-1 Oct 2015) | | Gas check date | 2 October 2023 | Certificate predates tenancy — valid CP12 for that period | | Certificate served on tenant | 12 February 2025 | Not served before occupation — breach of reg. 36(6)(b) | | s.21 notice served | 3 February 2025 | **9 days before** certificate was handed over | | How to Rent / Prescribed Information | (Assumed served) | No additional bar on facts as stated | --- ### Critical Defect: Sequencing This is where the facts become fatal to the s.21. The notice was served on **3 February 2025**. The gas safety certificate was not provided to the tenant until **12 February 2025** — nine days *after* the notice. Under **s.21A(1) Housing Act 1988**, a s.21 notice *"may not be given"* while the landlord is in breach of a prescribed requirement. At the moment Form 6A was served, the landlord was still in breach of reg. 36(6)(b) — the certificate had not yet been handed over. The Trecarrell cure only operates if: 1. The certificate is served on the tenant, **and** 2. The s.21 notice is served **after** (or simultaneously with) that late service. Trecarrell does **not** hold that retrospective late service can validate a notice that was already given while the breach subsisted. The Court of Appeal was explicit that what matters is whether the landlord remains in breach *at the point of service* of the s.21. On 3 February 2025, they unambiguously did. --- ### Conclusion **The s.21 notice is invalid.** The landlord served Form 6A while still in breach of the prescribed gas safety certificate requirement. Although Trecarrell confirms that late provision can cure the breach and enable a valid s.21, the landlord served the notice *before* effecting that cure. The correct course is to: 1. Confirm the certificate was validly served on 12 February 2025 (keep proof of delivery); 2. **Re-serve a fresh Form 6A** on or after 12 February 2025; 3. Ensure the notice period (minimum two months) runs from the re-served date; 4. Verify all other prescribed requirements (How to Rent guide, prescribed information/deposit protection) are also in order before re-serving. The existing 3 February 2025 notice should not be relied upon in any possession proceedings.