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There is no denying that private landlords are facing challenging times. From the proposed ‘Renters Reform Bill’ which may, if it becomes law, abolish section 21 (no fault) notices and force landlords into accepting pets (amongst many other reforms), to rising interest rates, owning a buy-to-let property is not for the fainthearted. However, by collaborating with an experienced landlord and tenant solicitor who can provide updates on the latest legal developments, buy-to-let portfolios can continue to provide landlords with a profitable return.

A recent development has emerged from a County Court judgment Byrne v Harwood-Delgado, where Her Honour Judge Bloom ruled that a section 21 notice under the Housing Act 1988 cannot be used to end a tenancy if a landlord has not procured a relevant gas safety certificate (GSC) (or gas safety record as described in the regulations) before the commencement of an Assured Shorthold Tenancy (AST).

Before discussing the decision, let us provide clarification on the function of a GSC and AST.

What is a Gas Safety Certificate?

Residential property landlords are required by law to provide a GSC or CP12 for every gas appliance in their buy-to-let properties. Each of these certificates must be reviewed annually. Failure to do so can result in a significant fine and risk the property’s gas appliances being unsafe for tenants to use.

What is an Assured Shorthold Tenancy?

In England and Wales, an AST is the most common type of residential tenancy. From 28^th February 1997, all new residential property tenancies are AST unless otherwise agreed in writing.

Under an AST, the tenant is assured that they can remain in the landlord’s property for a set period provided they abide by the terms and conditions set out in the tenancy agreement. Most AST range from six months to two years, however, they can also be periodic.

One of the features of an AST is that a landlord must provide a new tenant with a GSC and energy performance certificate (EPS) before they move in, protect the tenant’s deposit, and carry out any repairs that they are responsible for.

What does the decision in Byrne v Harwood-Delgado mean for landlords?

At first instance (i.e. when the case was initially heard) the landlord’s application to re-possess their property was granted on the grounds that a section 21 notice could be issued if the landlord provided a GSC after the tenant had moved into the property but before the issuing of the notice.

The tenant appealed the decision. Her Honour Judge Bloom allowed the possession order to be set aside. She referred to regulation 2 of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015. Regulation 2(1) provides that for the purposes of section 21A (as amended) of the Housing Act 1988 a section 21 notice may not be issued if the landlord is in breach of a statutory requirement concerning the condition and energy performance of the property and the health and safety of the tenants. This includes obtaining and providing a GSC.

The landlord relied on the Court of Appeal decision in Trecarrell House Ltd v Rouncefield [[2020] EWCA Civ 760. In Trecarrell House, the court concluded that a landlord who obtained a GSC but failed to provide their tenant with a copy before the tenant moved in could still issue a section 21 notice to recover possession, so long as they remedied the omission before servicing the notice.

Her Honour Judge Bloom distinguished the decision in Trecarrell House from the facts of the case before her, stating that the landlord in Byrne had not actually procured a GSC. In Trecarrell House, the landlord had obtained the certificate but had failed to provide it to the tenant before they moved in. She commented:

” …one can distinguish between the situation where the landlord has made a trivial error and failed to serve a document and the situation where the landlord has failed to obtain any safety checks for the gas installations…”

Furthermore, Parliament:

“…did envisage a basic minimum that there were checks before occupation…”

Her Honour Judge Bloom concluded that the failure to obtain a GSC and thereby ensure the safety of the gas appliances in the property could not be remedied by providing a GSC after the tenants had moved in.

What this decision means for landlords

When looking at this case from the perspective of what the law is trying to achieve, it is difficult to criticise Her Honour Judge Bloom’s reasoning that the purpose of the law is to protect tenants from the potentially fatal consequences of moving into a property with faulty gas appliances. Although the decision is not binding on higher courts, it would be surprising if it were overturned on appeal as doing so would defeat the purpose of the legislation.

The case of Byrne v Harwood-Delgado provides an excellent example of the importance of complying with landlord and tenant regulations and also the benefit of seeking legal advice before issuing a section 21 or section 8 notice in order to seek possession of a buy-to-let property.