Gas Safety Certificates and Section 21 Notices | Pre-Occupation Certificates: A Critical Necessity

The Court of Appeal has held that a landlord’s failure to evidence providing a gas safety certificate valid at the time a tenant commenced occupation is fatal to a landlord being able to rely on a valid section 21 notice. The Court held this is the case for all post-1 October 2015 assured shorthold tenancies, even if the original tenancy was entered into before that date.

The judgment is very important to private landlords who served section 21 notices in the run up to implementation of the Renters’ Rights Act 2025 on 1 May 2026, and to social landlords for whom Renters’ Rights will likely come into effect in late 2027.

The facts

Muca v El Amrani

• Ms El Amrani (tenant) was granted an assured shorthold tenancy (AST) by Mr Muca (landlord) in February 2014.
• No pre-occupation gas safety certificate was provided.
• New fixed term and periodic tenancies were entered into during her time at the property.
• Ms El Amrani was served with a Section 21 Notice in January 2025 and possession proceedings issued in May 2025.
• Other gas safety certificates were provided to Ms El Amrani between 2015–2024.

Previous decision and basis of appeal

• The County Court at Romford initially struck the case out, finding in favour of Ms El Amrani. The landlord then appealed.
• The first appeal was allowed and the court found in favour of Mr Muca, saying his failure to serve an initial gas safety certificate was not fatal to possession.
• Ms El Amrani appealed.

Harker v Hubert

• Mr Hughes and Ms Hamdaoui (tenants) were granted an AST by the trustees of a trust (landlords) in November 2007.
• The pre-occupation gas certificate was provided but had been lost.
• The tenants continued in occupation under numerous tenancies.
• A Section 21 Notice was served in October 2023 and possession proceedings were brought in February 2024.
• Subsequent gas safety certificates were issued up until 2023.

Previous decision and basis of appeal

• The Central London County Court found in favour of the Trustees and said they were entitled to possession given that subsequent certificates were provided.
• The tenants’ appeal was allowed on the basis that the prescribed requirements were said not to have been complied with and the section 21 notice was invalid.
• The trustees appealed.

The Law

The Court considered the statutory interpretation and interplay of:

• Section 21/ Section 21A Housing Act 1988 (s 21A having been inserted by the Deregulation Act 2015);
• The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015; and
• The Gas Safety (Installation and Use) Regulations 1998.

The Outcome

The Court of Appeal allowed Ms El Amrani’s appeal and dismissed the Trustees’ appeal. The court concluded:

1. A Section 21 notice will only be valid if both limbs of regulation 36(6)(a)-(b) of the Gas Safety Regulations are complied with i.e. the landlord needs to have provided the tenant with a pre-occupation gas safety record and a current gas safety record. Relying on later records alone (which lower Court authorities had indicated may be possible) is insufficient.
2. “Occupation” is when the tenant went into first physical occupation of the property. 

Impact

The judgment drives a coach and horses through more recent lower Court decisions that a landlord is able to remedy a failure to provide a valid pre-occupation gas safety record by providing the two most recent gas safety records. 

Failure to provide a valid pre-occupation gas safety record will permanently prevent a landlord from relying on a valid section 21 notice.  

This judgment underscores the importance of robust record keeping including retention of gas safety records (even beyond the two-year statutory requirement). Private landlords who served section 21 notices prior to 1 May 2026 should review their position or seek legal advice before proceeding with claims for possession. Where a landlord has not served a valid section 21 notice, the affected tenancies will now be assured periodic tenancy following implementation of the Renters’ Rights Act 2025.