Last Call for Section 21, Take Two: Supreme Court to consider strict pre-occupation gas safety record rule
In his article, Last call for section 21: Court of Appeal confirms strict pre-occupation gas safety record rule, Luke Decker discussed the practical implications El Amrani v Muca; Harker v Hubert [2026] EWCA Civ 515 when the Court of Appeal handed its judgment down the day before the Renters’ Rights Act 2025 came into force.
The Court of Appeal held that, where regulation 2 of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (“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 Gas Safety (Installation and Use) Regulations 1998 (“1998 Regulations”) before service of a section 21 notice.
On 8 October 2026, the Supreme Court granted permission to appeal in El Amrani v Muca. Sarah Salmon and Luke Decker act for the landlord in the appeal led by Justin Bates KC.
Factual Background
On 5 February 2014, Mr Muca granted Ms Rachida El Amrani an assured shorthold tenancy of 137 Harts Lane, Barking, Essex (“the property”) for a term of 12 months. On the expiry of that period, a periodic tenancy arose. That came to an end in 2017.
On 5 February 2017, Mr Muca granted Ms El Amrani an assured shorthold tenancy for a term of six months. At the expiry of that term, Ms El Amrani became a periodic tenant.
Ms El Amrani was not given a copy of any gas safety certificate before she went into occupation of the property under the 2014 assured shorthold tenancy. Gas safety certificates were issued in respect of the property each year between 2015 and 2024 and copies of all of these were provided to Ms El Amrani.
Ms El Amrani was served with a section 21, Housing Act 1988 notice and a possession claim was issued.
Possession claim in the County Court
On 30 July 2025, the District Judge struck the claim out because the gas safety certificates provided did not detail the name of the landlord or the landlord’s address.
First appeal in the County Court
On 11 December 2025, His Honour Judge Roberts, allowing the appeal, set aside the previous order and made a possession order. He held as follows.
- Ms El Amrani was an existing tenant of the property so regulation 36(6)(a) of the 1998 Regulations applied. As an existing tenant, Mr Muca did not have to serve a gas safety record before Ms El Amrani occupied the property (placing reliance on Trecarrell House Ltd v Rouncefield [2020] EWCA Civ 760 at [24], per Patten LJ).
- In the alternative, if Mr Muca was required to serve a gas safety record prior to Ms El Amrani occupying the property, he only had to serve such a record before Ms El Amrani occupied the property under the assured shorthold tenancy dated 5 February 2017.
Second appeal to the Court of Appeal
By order of Newey, Singh and Falk LJJ dated 30 April 2026, the Court of Appeal allowed Ms El Amrani’s appeal and set aside the order of Judge Roberts.
Appeal to the Supreme Court
On 8 October 2026, Lords Lloyd-Jones, Leggatt and Snowden granted Mr Muca permission to appeal.
Why is it important?
This is a case about retrospective sanction or punishment and there are significant issues of wider importance raised by the appeal.
First, whilst the Renters’ Rights Act 2025 abolished the possibility of a private landlord serving notice under s.21, 1988 Act, with effect from 1 May 2026, there are still many cases working their way through the county court.
Secondly, social landlords in England are still able to use s.21 notices. Social landlords make widespread use of assured shorthold tenancies and s.21 notices as part of their management of supported housing and general stock management.
Finally, the law in Wales is found in the Renting Homes (Wales) Act 2016 (“2016 Act”). Under the 2016 Act, there are two forms of “occupation contract”, the “secure” and “standard” contract. The latter is the form most commonly used in the private rented sector. The 2016 Act does, however, make provision for a landlord’s notice which can be served to end a periodic or fixed standard contract (ss.173 and 186). A landlord cannot serve such a notice unless there has been compliance with certain statutory obligations including reg.36(6) or (7) of the 1998 Regulations. Whilst the provisions in Wales are not identical to those in England, the overlap with the provisions and restrictions in the current case is clear.
Sarah Salmon and Luke Decker are instructed by Marianne Steer of L R Solicitors.
