Round #1132

The annual gas safety check at a flat let from June 2023 was carried out on 18 May 2024 and a CP12 issued the same day. The next check was carried out on 1 June 2025 — 14 days outside the 12-month anniversary window. Landlord wants to serve a section 21 notice in July 2025. Under regulation 36 of the Gas Safety (Installation and Use) Regulations 1998 and the section 21A / Deregulation Act 2015 line of authority, does the late check defeat the s21?

## Analysis: Does the Late Gas Safety Check Defeat the Section 21 Notice? --- ### The Regulatory Framework **Regulation 36(3)(e), Gas Safety (Installation and Use) Regulations 1998** requires a landlord to ensure each appliance/flue is checked for safety at intervals of not more than **12 months**. **Regulation 36(6)** (as amended) requires the landlord to give the tenant a copy of the current gas safety record **before occupation**, and within **28 days of each periodic check**. **Section 21A, Housing Act 1988** (inserted by the Deregulation Act 2015, s.38) provides that a s.21 notice **cannot be given** where the landlord is in breach of a "relevant provision" prescribed by regulations — with the **critical qualification** that certain breaches cannot be remedied at all for s.21 purposes (the "before occupation" obligations), while others may be capable of remedy. --- ### The Specific Timing Issue #### Window Under Reg 36(3)(e) The 1998 Regulations, as interpreted by case law, do **not** operate on a strict calendar-anniversary basis. Regulation 36(3)(e) requires checks at intervals of **not more than 12 months**. However, **Regulation 36(3A)** (inserted 2018) provides a **grace period**: where a check is carried out **within the 2 months immediately before** the 12-month interval expires, it is treated as if carried out on the **anniversary date** — preserving a rolling 12-month cycle. In your facts: | Check | Date | |---|---| | Check 1 | 18 May 2024 | | 12-month anniversary | 18 May 2025 | | 2-month early window opens | 18 March 2025 | | Actual Check 2 | 1 June 2025 | The second check was **14 days late** — outside the 12-month interval from 18 May 2024, and **not** saved by the early-check grace provision (which assists early checks, not late ones). There is **no equivalent grace period for late checks**. **Conclusion on Reg 36(3)(e): There is a breach.** --- ### Does the Breach Defeat Section 21? This is the critical legal question, and the answer is **nuanced but the landlord is at significant risk**. #### The Prescribed Requirements Scheme (SI 2015/1646) The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015, reg.2 prescribes compliance with **regulation 36(6)** (provision of the gas safety record to the tenant) as a requirement for s.21. It does **not** separately prescribe reg.36(3)(e) (the 12-month interval) as a freestanding requirement. **However**, the two obligations are inseparable in practice: - A CP12 issued from a check conducted **outside the lawful interval** is arguably a **defective or non-compliant record** — because the check itself did not comply with reg.36(3)(e). - If the underlying check is non-compliant, the record derived from it is **not a valid gas safety record** for reg.36(6) purposes. #### Key Case Law **Trecarrell House Ltd v Rouncefield [2020] EWCA Civ 760** > The Court of Appeal held that a failure to provide the gas safety record **before occupation** is a **permanent, irremediable** bar to s.21. A failure to provide within 28 days of a periodic check **can** be remedied by providing it before the s.21 notice is served. **Caridon Property Ltd v Shooltz [2018] (Brentford CC, HHJ Luba QC)** > An unremedied failure to comply with gas safety obligations at the time of the s.21 notice is fatal to that notice. **The operative principle from Trecarrell:** the question is whether the breach is one of the **"before occupation" type** (irremediable) or a **"periodic" type** (potentially remediable by belated compliance before s.21 is served). --- ### Applying the Principles to These Facts #### Scenario Analysis **1. The late check argument** The landlord **cannot retrospectively remedy** a check carried out outside the 12-month interval. The interval has passed unlawfully. Conducting the check on 1 June 2025 does not cure the fact that no valid check occurred between 18 May 2024 and 18 May 2025. This is analogous to an irremediable breach for that **gap period**. **2. The current record argument** As at July 2025 (when s.21 is to be served), there *is* a current gas safety record dated 1 June 2025. If that record has been provided to the tenant within 28 days (i.e., by 29 June 2025), the landlord can argue: - There is a current, valid certificate in place. - The tenant has received it. - The s.21 prescribed requirements (reg.36(6)) are currently satisfied. **3. The tension** Courts have not definitively ruled on whether a check conducted *outside* the 12-month window, but *prior to* the s.21 notice, is: - (a) A valid but late check that produces a valid (if belatedly obtained) record, allowing s.21; or - (b) A fundamentally non-compliant check that cannot cure the gap or produce a compliant record. --- ### The Better View and Risk Assessment | Factor | Assessment | |---|---| | Reg 36(3)(e) breach | **Yes — clear breach** | | Breach type for s.21 purposes | **Arguable both ways** | | Record provided within 28 days of 1 June 2025 check? | **Critical — must verify** | | Remediable before s.21 served? | **Partial at best** | | Overall risk to s.21 | **Material / High** | **The stronger argument against the landlord** is this: the prescribed requirement (provision of a gas safety record) presupposes a *lawfully conducted* check. A check conducted in breach of reg.36(3)(e) does not produce a record that satisfies reg.36(6). Since the 12-month interval has irremediably passed without a compliant check, the landlord cannot now satisfy the prescribed requirement for that period. Serving s.21 in July 2025 is therefore **at significant risk of being defeated**. **The landlord's best argument** is that *what is prescribed* for s.21 purposes is the provision of the record under reg.36(6), not the underlying interval under reg.36(3)(e); a check *has* been done, a record *has* been issued, and it *has* been given to the tenant. On this reading, s.21 is valid. Some County Court decisions have taken a pragmatic approach in analogous situations. --- ### Practical Advice 1. **Do not rely on the s.21 without taking legal advice** — the 14-day gap creates a genuine arguable defence for a well-advised tenant. 2. **Ensure the CP12 from 1 June 2025 was served on the tenant by 29 June 2025** — any failure here adds a second, independent bar. 3. **Consider whether possession proceedings can be delayed** to allow the passage of time to work in the landlord's favour (i.e., the next 12-month check conducted on time in May/June 2026 before any possession hearing). 4. **Alternatively, consider serving a s.8 notice** on appropriate grounds if rent arrears or other grounds exist, as s.8 is not subject to the prescribed requirements regime. 5. **Do not repeat the late check** — the next check must be conducted no later than **1 June 2026**, and ideally within the early-window (from April 2026) to secure the rolling date. --- ### Summary Answer **The late check creates a significant risk that the s.21 notice will be defeated.** There is a clear breach of reg.36(3)(e). Whether that breach is characterised as defeating the prescribed requirements for s.21 under reg.2 of the 2015 Regulations depends on whether a court treats the 1 June 2025 check as producing a valid record for reg.36(6) purposes notwithstanding the lateness. Given the current judicial trend toward strict compliance (post-*Trecarrell*), a landlord serving s.21 in July 2025 faces a **

## Analysis ### 1. The Regulatory Framework **Regulation 36(3)(a) GSIUR 1998** requires the landlord to ensure a gas safety check is carried out at least every 12 months. **Regulation 36(6)** requires the landlord to give the tenant a copy of the current gas safety record before they occupy, and within 28 days of each subsequent check. **Section 21A Housing Act 1988** (inserted by Deregulation Act 2015 s.33) provides that a s.21 notice *cannot be given* at a time when the landlord is in breach of a prescribed legal requirement. The **Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (SI 2015/1646)** prescribe the gas safety obligations under reg. 36 GSIUR as one of those requirements. --- ### 2. The Specific Timing Problem | Event | Date | |---|---| | Tenancy start | June 2023 | | First CP12 issued | 18 May 2024 | | 12-month anniversary of that check | 18 May 2025 | | Actual second check carried out | 1 June 2025 | | Proposed s.21 service | July 2025 | The second check was **14 days late** relative to the 12-month anniversary window. Critically, by July 2025 when the s.21 is to be served, the check *has been* carried out and a fresh CP12 exists. --- ### 3. Does the Late Check Permanently Defeat the S.21? This is where the analysis is most important and the answer is **nuanced but generally no — subject to one critical condition**. #### The "Cure" Position The 2015 Regulations and s.21A are directed at the position **at the time of service**. The prescribed requirements must be complied with *before* the notice is given; they are not a permanent historical bar in the way that, for example, a failure to protect a deposit within the statutory deadline *was* (pre-*Superstrike*) treated as an absolute bar. The correct analogy is the deposit-prescribed-information line: **Assured Shorthold Tenancy Notices and Prescribed Requirements Regulations 2015 reg. 2** simply requires that the landlord *is not in breach* at the time of service. If the breach has been remedied — the late check has now been done and the CP12 served on the tenant within 28 days — the landlord is no longer in breach of reg. 36 at the moment of serving the s.21. **This was confirmed in practice by the County Court approach endorsed in *Trecarrell House Ltd v Rouncefield* [2020] EWCA Civ 760.** The Court of Appeal held that a failure to provide a gas safety certificate *before occupation* (a reg. 36(6)(a) breach) could be remedied by providing it *before* serving the s.21. The logic explicitly was that s.21A/the 2015 Regulations bar the notice only where the landlord **remains in breach at the time of service**; a cured breach does not permanently extinguish the right to serve. #### The Critical Distinction: Which Breach? There are **two separate potential breaches** here: 1. **Reg. 36(3)(a)** — failing to carry out the check within 12 months. **This breach occurred on 19 May 2025** and was cured on 1 June 2025. It is a historical breach, now remedied. 2. **Reg. 36(6)(b)** — failing to give the tenant a copy of the new CP12 within **28 days** of the check on 1 June 2025. The 28-day deadline falls on **29 June 2025**. If service of the CP12 on the tenant has *not* occurred by the time the s.21 is served in July 2025, this is an **ongoing, uncured breach** and the s.21 will be invalid under s.21A. --- ### 4. Practical Conclusion | Question | Answer | |---|---| | Does the 14-day late check *permanently* bar s.21? | **No**, per *Trecarrell* — it is a cured historical breach | | Is the s.21 automatically valid in July 2025? | **Only if** the CP12 from the 1 June 2025 check was served on the tenant within 28 days (by 29 June 2025) | | What if the CP12 was not served on the tenant by service of s.21? | S.21A operates and the notice is **invalid**; serve the CP12 first, then re-serve the s.21 | | Does *Trecarrell* cover the reg. 36(3)(a) timing breach specifically? | The ratio covers reg. 36(6)(a) but the Court's reasoning on curability applies equally to any reg. 36 breach that has been fully remedied before s.21 service | --- ### 5. Checklist Before Serving in July 2025 - [ ] CP12 from 1 June 2025 served on tenant **by 29 June 2025** (or before s.21 service if not yet done — note: *Trecarrell* permits late service of the *record* pre-notice, but the check itself cannot be retroactively cured if it predates tenancy; here it post-dates, so the cure analysis is straightforward) - [ ] EPC provided (prescribed requirement, SI 2015/1646 reg. 2(b)) - [ ] How to Rent guide provided at the start of the tenancy (and on any statutory periodic arising after October 2015) - [ ] Deposit protected and prescribed information served within 30 days (if deposit taken) - [ ] No pending repair notices or improvement notices (retaliatory eviction, DA 2015 s.33/34) - [ ] Tenancy not less than 4 months old at date of s.21 service (s.21(4B) HA 1988) - [ ] At least 2 months' notice given in prescribed form (Form 6A) The late gas check **does not defeat the s.21** provided the CP12 has been (or is) delivered to the tenant before the notice is served.