Round #1138

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)(a)**: 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 s.21 notice cannot be given where a landlord has failed to comply with a "prescribed requirement" - **Assured Shorthold Tenancies (Prescribed Requirements) (England) Regulations 2015, reg. 2**: the gas safety record obligation under reg. 36(6) is a prescribed requirement --- ## The Trecarrell House Line of Authority ### *Trecarrell House Ltd v Roynon* [2021] EWCA Civ 1168 The Court of Appeal held that **late provision of the gas safety certificate did not permanently bar** the landlord from serving a valid s.21 notice, **provided**: - The certificate had been **provided to the tenant before the s.21 notice was served**; and - The **record itself was obtained in time** (i.e., before the tenancy began / within 12 months of the previous check) The court drew a distinction between: | Situation | Effect | |-----------|--------| | No certificate obtained at all | Permanent bar — cannot be remedied | | Certificate obtained but not given to tenant in time | Remediable by late provision **before** s.21 is served | ### *Coursier v Breen* [2023] (County Court, but widely noted) and subsequent cases Confirmed the *Trecarrell* approach: the key is whether the defect is one of **non-provision** (curable) versus **non-compliance with the underlying safety check** (incurable). --- ## Applying the Law to These Facts ### Relevant Timeline | Date | Event | |------|-------| | 2 October 2023 | Gas safety check carried out | | 5 October 2023 | Tenancy begins | | 12 February 2025 | Gas safety record handed to tenant **and** Form 6A served simultaneously | | 3 February 2025 | Form 6A dated (see critical issue below) | --- ## Critical Issues ### Issue 1 — Was the Certificate Provided **Before** the s.21 Notice? This is the pivotal factual question. The facts state: > *"handed to the tenant on 12 February 2025 **alongside** the s21 notice"* **This is fatal to the s.21's validity.** *Trecarrell* requires provision of the gas safety record **before** (not simultaneously with) the s.21 notice. Cussen LJ's analysis turns on the landlord curing the breach *prior* to exercising the s.21 power. - Simultaneous service does **not** constitute prior provision - The s.21 notice was served in breach of the prescribed requirement at the moment of service - There is no mechanism to cure the s.21 retrospectively once served in breach > **The s.21 is therefore invalid on this ground alone.** --- ### Issue 2 — The Certificate Predates the Tenancy (reg. 36(6)(a)) A secondary but significant point: - The check was carried out on **2 October 2023**, three days **before** the tenancy began on **5 October 2023** - Reg. 36(6)(a) requires that the tenant receives a copy of the gas safety record *"before they occupy the premises"* - Where a check is carried out pre-tenancy, it must still be provided to the incoming tenant before occupation - A record obtained 3 days before the tenancy is **not inherently invalid** — reg. 36(3) requires an annual check; the pre-tenancy check satisfies the first annual obligation provided it was a valid check of the installation - However, the certificate was **not provided before occupation** — this is the same remediable defect as in *Trecarrell*, but it needed to be cured **before** s.21 was served This does not add a separate incurable bar, but reinforces Issue 1. --- ### Issue 3 — Notice Date vs Service Date - Notice is **dated 3 February 2025** but the certificate was provided on **12 February 2025** - Even if one argues "service" occurred on 12 February (by personal delivery), the **notice itself was executed on 3 February** at which point no certificate had been provided - Courts would scrutinise whether the notice was "given" on 3 February or 12 February — if given on the 3rd, the breach is even more obvious --- ## Summary Conclusion | Issue | Finding | |-------|---------| | Gas safety check carried out before tenancy | ✅ Valid check | | Certificate provided before tenant occupied | ❌ Not provided | | Certificate provided before s.21 served | ❌ Provided **simultaneously**, not before | | s.21 valid under *Trecarrell*? | **No — invalid** | ### The s.21 notice is **invalid**. The landlord fell at the precise hurdle identified in *Trecarrell*: the remedy for late provision only operates if the gas safety record is placed in the tenant's hands **before** the s.21 notice is served. Handing it over at the same time — let alone after — does not cure the prescribed requirement breach. The landlord must: 1. Serve a **fresh** gas safety certificate (ensure the annual check is current) 2. Provide it to the tenant 3. Wait a reasonable period 4. Then serve a **new** Form 6A, ensuring all other prescribed requirements (EPC, How to Rent guide) are also complied with --- *Note: This analysis reflects the law of England. Scottish and Welsh regimes differ. This is not legal advice; a solicitor should be consulted for case-specific guidance.*

## 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 certificate *before the tenant occupies the premises*. For a tenancy beginning 5 October 2023, the certificate carried out on 2 October 2023 needed to be handed over on or before 5 October 2023. **Deregulation Act 2015, s.38 / SI 2015/1646** inserts the retaliatory eviction and prescribed requirements gateway into s.21: a s.21 notice cannot be given where the landlord has failed to comply with a "prescribed requirement." The Gas Safety Regulations are a prescribed requirement under reg. 2 of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (SI 2015/1646). --- ### The Trecarrell House Line **Trecarrell House Ltd v Rouncefield [2021] EWCA Civ 1171** is the controlling Court of Appeal authority. The key holdings are: 1. **Late service of the gas certificate is capable of being remedied** — it is not a permanent bar to s.21. The landlord can cure the failure by serving the certificate on the tenant *at any time before* the s.21 notice is served. 2. **Service must precede the s.21 notice** — if the certificate is served simultaneously with or after the s.21, the breach is *not* remedied in time. 3. Nugee LJ drew a distinction between obligations that are "incapable" of late performance (e.g., an obligation to do something *before the tenancy begins* that can never retrospectively be done *before the tenancy begins*) and the *consequence* — which is simply that the document must reach the tenant before the notice goes out. **Caridon Property Ltd v Monty Schultt** (County Court, approved in principle by Trecarrell) had previously held that late service could never cure, but Trecarrell expressly departed from that approach at Court of Appeal level. --- ### Applying the Facts | Step | Fact | Legal Consequence | |---|---|---| | Tenancy start | 5 October 2023 | Gas cert must be handed over on or before this date | | Gas cert date | 2 October 2023 | Valid cert existed in time | | Actual handover | 12 February 2025 | Late — breach of reg. 36(6)(b) confirmed | | s.21 served | 3 February 2025 | **Notice served *before* the certificate was handed over** | | Sequence | Cert handed 9 days *after* the s.21 | Fatal under Trecarrell | The handover of the gas safety certificate occurred on **12 February 2025**, nine days **after** the s.21 notice was served on **3 February 2025**. Under *Trecarrell*, the cure must precede the notice. Serving the certificate simultaneously with or after the notice does not satisfy the requirement. On these facts the certificate was served *after* the notice — the position is therefore worse than simultaneous service and falls squarely outside the Trecarrell cure window. --- ### Conclusion **The s.21 notice is invalid.** The landlord cannot rely on *Trecarrell* to save it because the remediation (handing over the certificate) postdated the notice itself. The prescribed-information gateway under SI 2015/1646 is not satisfied, and the court must not make a possession order on the basis of this notice. **To proceed**, the landlord must: 1. Ensure the gas certificate is now in the tenant's hands (done — 12 Feb 2025). 2. Serve a **fresh Form 6A**, ensuring at the point of service all prescribed requirements (gas cert, EPC, How to Rent guide, deposit prescribed information if applicable) are already complied with. 3. Observe the **two-month notice period** from the fresh notice date, subject to any fixed-term end-date constraints. The landlord should also audit the EPC and How to Rent guide position before re-serving, as those are equally fatal if outstanding.