Court of Appeal judgment: pre-occupation gas safety compliance guidance

An important judgment in the Court of Appeal provides clarity on the requirements relating to providing historical gas safety compliance and tenant evictions.

On 30 April 2026 – the final day on which landlords could serve notices under section 21 of the Housing Act 1988 before its repeal – the Court of Appeal handed down its judgment in the joined cases of Muca v El Amrani and Harker v Hubert & Hamdaoui.

The decisions address the interaction between section 21A of the 1988 Act and the Gas Safety (Installation and Use) Regulations 1998 and resolves a growing body of conflicting county court authority.

While the judgment confirms that certain failures relating to gas safety certificates are fatal to reliance on a section 21 notice, they do not amount to a wholesale expansion of the prescribed requirements regime.

What is a section 21 notice?

A section 21 notice under the Housing Act 1988 is commonly referred to as a no-fault ground for possession (sometimes referred to as a “no fault eviction’) where the landlord is seeking to recover possession of a property on or after the end of the contractual term of an Assured Shorthold Tenancy (AST) by providing at least a 2 month notice period.

The Deregulation Act 2015 and Gas Safety certification

Mandatory requirements for serving a Section 21 notice were introduced in the Deregulation Act 2015 and were made applicable to tenancies in England created on or after 1 October 2015. The requirements included stipulations for the landlord to provide a valid Gas Safety Certificate to the tenant prior to a tenant occupying.

The central issue in Muca v El Amrani and Harker v Hubert & Hamdaoui

In both appeals, the Court was required to determine whether a landlord can rely on a section 21 notice where the tenant had not been given a gas safety certificate before first going into occupation, notwithstanding that:

• the tenant had been provided with later certificates
• the tenant originally entered occupation under a tenancy granted before section 21A came into force; and
• the tenant was now occupying under a later tenancy granted after 1 October 2015.

In each case, there was at least one tenancy granted after 1 October 2015, meaning that section 21A and the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 were engaged.

The outcome in Muca v El Amrani and Harker v Hubert & Hamdaoui

The Court of Appeal dismissed the landlords’ arguments and upheld the tenants’ position. The key conclusions are summarised as follows:

1. Regulation 36(6)(b) means what it says
   Where section 21A applies, a landlord must have provided the gas safety certificate [under 36(6)(b)] relevant to the period before the tenant first went into occupation. That obligation is not satisfied by providing later certificates alone.
2. “New tenant” means the first occupation, not each new tenancy
   For the purposes of regulation 36(6)(b), a tenant is a “new tenant” only when they first take up occupation of the property, not each time a new tenancy is granted in an uninterrupted series. (Subsequent tenancies engage regulation 36(6)(a), not (6)(b)).
3. The failure is irremediable
   If the relevant pre‑occupation certificate was never provided, that failure cannot be cured later, and the landlord cannot rely on section 21 in circumstances where section 21A applies.
4. Conflicting county court authority resolved
   The Court expressly rejected the approach taken in Cassell v Sidhu and confirmed that both regulations [36(6)(a) and 36(6)(b)] are prescribed requirements for the purposes of section 21A.

What the judgment does not determine

What is of equal importance is what the Court of Appeal did not decide:

• The judgment does not overrule or qualify Hathaway v Minister.
• It does not mean that section 21A applies to all assured shorthold tenancies, whenever granted.
• Where no tenancy has been granted on or after 1 October 2015, section 21A is not engaged, and the prescribed requirements regime is irrelevant.

The Court was explicit that the effect of the decision is limited to cases where there is a post‑October 2015 tenancy bringing section 21A into play.

Practical implications

The practical consequences, particularly in the context of the flurry of section 21 notices served before repeal, are significant:

• Landlords and advisers:  must refer to the beginning of the tenancy chain
  Where section 21A applies, it will be necessary to confirm whether the gas safety certificate relevant to the tenant’s first occupation was ever provided – even if that occupation began many years ago.
• Record‑keeping failures may now be fatal
  A missing or unproven historic certificate may be enough to defeat an otherwise valid claim.
• Tenants should not assume a general defence exists
  The decision does not create a universal right to challenge section 21 notices on gas safety grounds. Its application is fact‑sensitive and depends on the structure and timing of the tenancies.

The Court of Appeal has taken a careful, text‑driven approach, interpreting the statutory language as enacted rather than attempting to mitigate the consequences of non‑compliance. While the result may appear harsh for some landlords, the decision provides long‑awaited clarity and resolves an area that had become increasingly uncertain.

As the property sector transitions fully into a post‑section‑21 landscape, the cases stand as a timely reminder of the importance of historic compliance and methodical analysis – on both sides of possession litigation.

How Hamlins can help

The Hamlins Real Estate Disputes team has expertise in both commercial and residential matters. We seek to obtain the best outcome possible for every client, no matter how big or small the issue may be. If you would like a conversation to find out how we might help you, please get in touch.