At first instance it was held that the landlord’s failure to comply with the requirement meant that the section 21 notice was invalid. What that created, in effect, was a tenancy which could never be terminated by way of section 21. The landlord would have to wait, perhaps indefinitely, until the tenant fell into rent arrears or was in breach of the tenancy and serve a section 8 notice – creating, in effect, an assured tenancy. That was noted clearly by Lady Justice King at paragraph 40 of the judgment, who said that if that was the case then “the tenant’s assured shorthold tenancy becomes a fully assured tenancy with accompanying security of tenure.”
The Court of Appeal has, sensibly, held that that cannot possibly be the case – “such a disparity of outcome does not seem to me to fit with the legislative scheme as a whole” (paragraph 42). They also noted that “all the other prescribed requirements are capable of being remedied” (paragraph 43) and therefore it followed that breaches of the Regulations related to the provision of gas safety certificates could also be remedied, and that once they had been (by late service of the documents) the section 21 could also be served.
This case will be welcomed by landlords and letting agents, even if the Court of Appeal missed an opportunity to finally clarify the entirety relevant legislation, as some issues remain unclear and some questions remain unanswered.
Of course, the best course of action for landlords and letting agents is to avoid getting into these messy situations in the first place by complying with all of their statutory requirements as and when they are required to do so.