The Supreme Court is to rule on a key Section 21 gas safety dispute which could affect scores of landlords’ possession claims.

In the case of Harker v Hubert, the tenants argued that the landlords weren’t entitled to serve the notice, particularly because they didn’t get a gas safety record before they moved in.

The landlord explained it had obtained a certificate but had then lost it and couldn’t prove it was provided before the tenants moved in. However, this took place long before the requirement to provide such a certificate became connected to the validity of the Section 21 notice. Although the county court accepted this and held the notice to be valid, the Court of Appeal then ruled it was invalid. The landlords have now won their right to appeal and the case will by heard by the Supreme Court.

Landlords must comply with Gas Safety (Installation and Use) Regulations before serving a valid Section 21 notice. This means providing a current gas safety record to existing tenants within 28 days of the annual safety check and, crucially, for a gas safety record to be provided before a new tenant first occupies the property.

Flouted

“The second of these requirements was widely flouted as it had become conflated with the first so that many landlords and agents thought, wrongly, that provision of a GSC within 28 days of the tenancy start was sufficient,” explains David Smith, partner at Bishop & Sewell.

Smith (pictured above) believes it’s slightly strange that the issue is only being dealt with now when Section 21 has already been scrapped. “I suspect that one of the reasons is that landlords might have previously dropped the issue and looked for another route to eviction but now feel that their backs are against the wall and are more determined,” he adds.

Estimates

He estimates that there could be several hundred possession cases currently stayed or awaiting the legal outcome to determine whether their notices are valid. The ruling will also continue to have significance in Wales, where landlords serving the equivalent no-fault possession notice must still comply with gas safety requirements before they can regain possession.

Smith believes the landlords might ultimately win this case but adds that even if this happens, it’s doubtful any landlord whose claim has already been dismissed will be able to take any action.

“They could seek an out of time appeal to have the possession claim re-opened,” he tells LandlordZONE. “The main beneficiaries will be landlords whose claims are still in the system or where they have sought a stay to await this decision.”

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