Cassell & Cassell v Sidhu & Sidhu: A last gasp for Section 21?

Cassell & Cassell v Sidhu & Sidhu: A last gasp for Section 21?

Until now, the position under the prevailing case of Byrne v Harwood-Delgado in respect of gas safety certificates and s.21 notices has been clear and unforgiving. If a landlord failed to provide a valid gas safety certificate before the start of a tenancy, or if the certificate itself was defective (for example, missing the landlord’s name or address), that error was deemed fatal. The Court’s interpretation of the regulatory framework was that Parliament had intended such failures to create a permanent bar on serving a valid Section 21 notice.

Whilst not binding, the recent County Court appeal decision in Cassell & Cassell v Sidhu & Sidhu may mark a shift in that hard line which will hopefully be persuasive when courts are asked to consider gas safety defects or failures in Section 21 cases. The judgment suggests there could still be room for landlord to rectify an initial defect and recover possession lawfully offering, perhaps, one last glimmer of hope before s.21 notices are abolished for good under the RRA.

In brief, the background to the case was that the tenants had occupied the property under an AST from May 2021. The landlords had obtained a pre-tenancy gas safety certificate however, the certificate was defective as it omitted the landlords’ details required under the regulations. Subsequent compliant gas safety certificates were also obtained in 2022 and 2023 by the landlords in accordance with the regulations.

The landlords served a s.21 notice in June 2024. The tenants argued that the s.21 was invalid and the landlords were permanently barred from serving further s.21 notices on the basis that the original gas safety certificate was defective.

On appeal, the Court held that whilst the initial gas safety record was invalid, the defect could be remedied by subsequent compliance. Relying on Trecarrell House v Rouncefield, the Court held that the landlord was no longer in breach for the purposes of s.21 once a compliant gas safety certificate had been provided.

Importantly, the Court noted that the statutory scheme only required a landlord to retain a gas safety certificate until two further checks have been carried out. As such the court were of the view that it could not have been Parliament’s intention for the ‘relevant record’ to include certificates, which under statute the landlord was “…no longer obliged either to retain or make available for inspection once it had carried out two further checks.”

The overriding view of the court the approach previously taken made “no obvious sense in terms of the policy of the scheme”, ultimately providing some welcome reassurance to landlord before the s.21 procedure is repealed.

Nevertheless, we anticipate that this topic may still attract further judicial attention in the coming months and therefore maintaining up-to-date record keeping will likely prove key to avoiding disputes and the risk that any s.21 notice served may be considered invalid.