Section 21 Notices – Court Of Appeal Decision Could Affect Possession Claims
The Renters’ Rights Act 2025 has abolished Section 21 notices for new cases, but many possession claims issued under the previous law are still progressing through the courts. A recent Court of Appeal decision has clarified the importance of providing a gas safety certificate before a tenant first occupies a property and may have significant implications for landlords with existing Section 21 possession claims. This article explains that decision and what it could mean in practice.
The Court of Appeal decision
Landlords who served a section 21 notice and have issued a court application for possession and are in the court process may want to consider the case of :
Muca v El Amrani; Harker and others v Hubert and another [2026] EWCA Civ 515, the Court of Appeal.
In two appeals heard together, the Court of Appeal considered whether the Housing Act 1988 section 21A prevented a landlord from serving a valid notice under section 21 where the tenant had not been given a gas safety certificate before they first went into occupation.
The court decided that Landlords were prevented by the Housing Act 1988 section 21A from serving valid section 21 notices where tenants had not been given gas safety certificates before first going into occupation under earlier tenancies, notwithstanding that subsequent gas safety certificates might have been provided.
Why is this decision important?
Crucially, this Court of Appeal decision means Landlords who failed to provide a gas safety certificate when a tenant first went into occupation could not remedy that omission by providing subsequent certificates and were barred from serving a valid section 21 notice.
Why did the landlords lose?
The Court of Appeal rejected the landlord’s arguments that:
- It was sufficient to provide only the most recent gas safety certificate. Regulation 2 applied to the requirements in Regulation 36(6) as a whole, including both pre-occupation and later certificates.
- A tenant becomes a “new tenant” each time a replacement tenancy is granted. Where a tenant remains in continuous occupation under successive tenancies, regulation 36(6)(b) applies when the tenant first goes into occupation. Thereafter, the landlord’s obligation is to provide further certificates as required by regulation 36(6)(a).
- The requirement was limited to certificates from the two most recent gas safety checks. The landlord’s limited obligation to retain gas safety records did not restrict the prescribed requirements under section 21A.
The Court of Appeal distinguished the earlier decided case of Trecarrell House Ltd v Rouncefield [2020] EWCA Civ 760, which established that failure to provide a pre-occupation gas safety certificate does not prevent a section 21 notice from being served where the relevant certificate is given before service. It did not decide that the service of that certificate was unnecessary.
What does this mean for existing Section 21 possession claims?
With the introduction of the Renters’ Rights Act on the 1 of May 2026, a landlord who served an “in-date” section 21 notice by the 30 of April 2026 must have issued a court application for possession by the the 31 of July 2026. The Court of Appeal delivered judgement on 30 April 2026. This case will likely affect many Section 21 notices still going through the legal process under the previous law.
If the landlord has all the gas safety certificates to cover the whole period of the tenancy and can prove they were served before the Section 21 notice, then the case will be of limited significance.
If, however, the landlord did not have the gas safety certificate to show the property was “gas safe” before the original tenancy started, so it was “gas safe” when the tenants moved in, then following this decision the application for possession will likely fail as the notice will be invalid.
Why does this matter for older tenancies?
What will be particularly concerning for landlords will be the fact that the two cases considered by the Court of Appeal concerned tenants who first occupied the respective properties before 1 October 2015 (when section 21A of the HA 1988 and the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (SI 2015/1646) (2015 Regulations) came into force). The tenancies were also renewed, and before the later tenancies commenced (presumably), the landlords served the Gas safety certificates.
The requirements prescribed for the purposes of section 21A (by regulation 2 of the 2015 Regulations) included regulation 36(6) or (7) of the Gas Safety (Installation and Use) Regulations 1998 (SI 1998/2451). These requirements included a duty to give a new tenant a copy of the most recent gas safety record before occupation. The CA held that failure to provide the certificates before occupation made the section 21 notices invalid.
What should landlords do now?
Landlords with ongoing Section 21 possession proceedings should review their position carefully in light of this Court of Appeal decision. Where there is any uncertainty about whether a gas safety certificate was provided to the tenant before they first occupied the property, seek advice before progressing further with a possession claim, as an invalid Section 21 notice could have significant consequences.
Our expert property litigation solicitors in Plymouth are able to assist with any matters related to Section 21 notices or the wider Renters’ Rights Act changes. To discuss your position in more detail, please call 01752 203500 or email enquiries@GAsolicitors.com.
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