Richard Pulford, Senior Associate Solicitor in the Dispute Resolution team, looks at the case of Cassell & Cassell v Sidhu & Sidhu (2025) and a new interpretation of what a Landlord needs to show from a gas safety standpoint when seeking possession of a property under section 21 Housing Act 1988.
With the imminent Renters Rights Bill, we thought our time writing about section 21 notices, other than in some sort of in memoriam look back at all the frustrating, confusing and contradicting decisions over the years, was over. However, now it appears there is at least one more. The case of Cassell & Cassell v Sidhu & Sidhu addressed one of the more difficult recent issues affecting Landlords, namely if the tenant has been in the property for a long time, what if I no longer have a copy of the original Gas Safety Certificate? This was a regular question from clients and based on the decisions from Trecarrell House Limited v Patricia Rouncefield (Trecarrell) and Caridon Property Ltd v Monty Shooltz (Caridon), the advice had been that failure to provide a copy of the Gas Safety Certificate prior to the tenant taking up occupation was a once and for all breach which could not be remedied. Therefore, if you could not prove service or the existence of this original certificate, the likelihood is that you would not be able to rely on section 21 notices as grounds for recovery of possession of the property. This position may now have shifted somewhat.
Background
Whilst the case could have wider implications, the facts of the case revolved around an incomplete rather than absent original Gas Safety Certificate. The Details of Customer/Landlord section of the certificate which is required by Regulation 36(3)(c)(iii) of the Gas Safety (Installation and Use) Regulations 1998, were missing. This meant that the certificate was invalid under the regulations and for the purpose of a claim for possession, as if it was never done. At first instance, the Deputy District Judge found that whilst there was the original fault, this was remedied by the completion and serving of later and compliant certificates. The tenant appealed using the principles as set out in the cases of Trecarrell and Carridon.
On appeal, HHJ Clarke found after interpreting the various regulations that a landlord is only obliged to prove correct gas safety certificates for the last two checks. An earlier failure therefore can be remedied as long as there is sufficient compliance afterwards. It was decided that having such a strict sanction for not keeping a historic gas safety certificate, when the relevant regulations do not even require you to keep the certificates for that length of time, was not appropriate or proportionate.
It is worth remembering that this is not a binding decision, and the case is unlikely to be appealed any further but certainly goes some way to showing how judges can interpret these rules and gives Landlords a fighting chance of recovering possession where the situation previously would have been helpless. Just in the nick of time *checks likely dates of the imminent abolishing of section 21s anyway*.
Conclusion
This is both good and very frustrating news for Landlords. Many landlords will have made difficult and often costly decisions based on past precedent and vaguely worded regulations. Equally, there is likely to be a very short window where this decision could be acted upon by landlords or their agents, with Royal Assent having only recently been granted to the Renters Rights Bill. This does offer some hope though and now we will just need to wade through the final Renters Rights wording to see how much effect this decision may have.
Whenever anyone is presented with a situation like this, early advice is always recommended. If any landlords or managing agents require advice regarding recovering possession or tenancy advice, our dispute resolution team can be contacted on [email protected] to help where we can.
