Last call for section 21: Court of Appeal confirms strict pre-occupation gas safety record rule
Today, on 30 April 2026 at 10:30 am, the Court of Appeal (Newey, Singh, and Falk LJJ) handed down judgment in El Amrani v Muca; Harker v Hubert [2026] EWCA Civ 515. The two appeals, which were heard together, concerned the relationship between:
- sections 21 and 21A of the Housing Act 1988 (the “1988 Act”);
- The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (the “2015 Regulations”); and
- The Gas Safety (Installation and Use) Regulations 1998 (the “1998 Regulations”).
The timing could hardly be more significant. Tomorrow, on 1 May 2026, the Renters’ Rights Act 2025 comes into force for private landlords in England, abolishing ‘assured shorthold tenancies’ and ending section 21 ‘no fault’ evictions in the private rented sector.
For any landlord serving a section 21 notice today, the practical message of this judgment is immediate and specific: before service, ensure that the tenant has been given the pre-occupation gas safety record required by regulation 36(6)(b) of the 1998 Regulations.
What must be served
The Court of Appeal has confirmed that, where regulation 2 of the 2015 Regulations applies, the landlord must give the tenant the gas safety record relating to the check carried out before the tenant first went into physical occupation under a “lease” within the meaning of regulation 36(1) of the 1998 Regulations before service of a section 21 notice. Regulation 36(1) defines “lease” to include “a lease for a term of less than 7 years”, “a tenancy for a periodic term”, and “any statutory tenancy arising out of” either such lease or periodic tenancy.
That is so even where the tenant first occupied before 1 October 2015, when it became a prescribed requirement (by regulation 2(1)(b) (read together with regulation 2(2)) of the 2015 Regulations) to give a pre-occupation gas safety record to the tenant.
That requires landlords to look back, potentially many years, to the original grant of a “lease”. Successive tenancies do not reset the lock. As Newey LJ put it at [78]:
“[W]here a person remains in occupation of premises under a second or subsequent “lease” within the meaning of regulation 36 […] he is an “existing tenant” to whom regulation 36(6)(a) applies, not a “new tenant” within regulation 36(6)(b). […] A person is plainly a “new tenant” when he is originally granted a “lease”. While he continues to fall within the definition of “tenant” and to be in uninterrupted occupation, albeit under one or more further “leases”, my own feeling is that he is appropriately viewed as an “existing tenant” rather than a “new tenant”. […] [T]he terms of regulation 36(6) suggest that what was envisaged was that regulation 36(6)(b) would be applicable when a person first goes into occupation as a “tenant” and that regulation 36(6)(a) should then take over.”
Falk LJ distilled the point in her concurring judgment at [91], “Where one lease of a kind that falls within the definition of “lease” in the [1998] Regulations is replaced by another such lease granted to the same person, the “tenant” remains the same.”
A checklist for landlords
The following steps should be taken before any section 21 notice is served today:
- Identify when the tenant first went into physical occupation under a “lease” within the meaning of regulation 36(1) of the 1998 Regulations;
- Locate the gas safety certificate predating that occupation. If it cannot be located, the prospects of obtaining possession under section 21 are, on the basis of this judgment, fatally compromised unless the landlord can evidence the fact that the pre-occupation gas safety record was previously served on the tenant;
- Ensure that records for each subsequent annual check are also held and served; and
- Serve the entire bundle of gas safety records on the tenant before the section 21 notice itself, keeping good documentary evidence of the same.
Conclusion
Today’s decision is both a final warning and an illustration of the technicality of the outgoing section 21 regime. The Court acknowledged the force of the landlords’ arguments, and the surprising harshness of the result, but held that the statutory wording required it.
At [87], Falk LJ said that “the result on the facts of these particular cases may seem surprising” and “the consequence appears to be that a failure to supply a pre-occupation gas safety [record] is the only restriction on the use of section 21 of the 1988 Act which is wholly irremediable”. For his part, Newey LJ concluded at [85] by quoting Judge Hellman who observed that the result reached had “adverse consequences for landlords which […] amount to unintended collateral damage incidental to the legislative purpose” of the 2015 Regulations.
In short, if the landlord cannot serve a pre-occupation gas safety record on the tenant before a section 21 notice—whether that be because no pre-occupation gas safety check was completed or that record was lawfully destroyed under regulation 36(3)(c) of the 1998 Regulations or lost before it was served—the landlord can never rely on section 21 of the 1988 Act.
Luke Decker, instructed by Marianne Steer of L R Solicitors, acted for the respondent landlord in the El Amrani v Muca appeal. This was Mr Decker’s second appearance in the Court of Appeal concerning section 21, having acted for the successful respondent landlord in Switaj v McClenaghan [2024] EWCA Civ 1457, [2025] 1 WLR 1420 where the Tenant Fees Act 2019 was considered for the first time.
