Court of Appeal Issues Key Ruling on Section 21…

The Court of Appeal has today, 30 April 2026, handed down judgment in the combined appeals of Harker v Hubert and Muca v El-Amrani, on the issue of pre-occupation gas safety records pre-dating the introduction of the prescribed requirements.

Rupert Cohen acted for the landlords in Harker v Hubert, instructed by Jury O’Shea LLP. Tom Morris acted for the tenants in both appeals, instructed by Duncan Lewis Solicitors.

The Court rules that no section 21 notice can be relied upon where a landlord has failed prior to serving the notice to provide the last gas safety record made prior to the tenant’s first occupation, even where the tenant occupied before it was made a prescribed requirement to have done so.

The issue

The tenants in both appeals first went into physical occupation of properties before the Deregulation Act 2015 made it a prescribed requirement to have given them the last gas safety record made under the Gas Safety (Installation and Use) Regulations 1998. The tenants remained in possession under a series of tenancies granted after 1 October 2015.

The Courts below made no finding that the tenants were given the last gas safety record made before they went into occupation. From 1 October 2015, it became a prescribed requirement for reliance on section 21 to have given the pre-occupation gas safety record to the tenant before occupation. The landlords many years later served section 21 notices. They were not able to serve the pre-occupation records before serving that notice because (in Harker v Hubert) the record had been lost and because (in Muca v El-Amrani) no check was carried out.

The issue in both appeals was whether the section 21 notices were invalidated by the failure to give the pre-occupation record. The point is subject to a number of conflicting county court decisions.

In Harker v Hubert, the trial judge found that, as a matter of law, it was not a prescribed requirement to have given the pre-occupation record where the tenant went into occupation before 2015. HHJ Hellman on a first appeal (in the county court at Mayors and City of London) decided the opposite, and allowed Mr Hubert’s appeal. In Muca v El-Amrani, the District Judge struck out the landlord’s possession claim. HHJ Roberts on a first appeal (in the county court at Clerkenwell and Shoreditch) allowed the appeal and made a possession order, holding that it was not a prescribed requirement to have given the pre-occupation GSR under a tenancy which pre-dated the Deregulation Act 2015.

The Court of Appeal’s decision

The Court of Appeal allowed the tenant’s appeal in Muca v El-Amrani, and dismissed the landlord’s appeal in Harker v Hubert. The key points of the decision are as follows.

It is prescribed requirement for a landlord under any tenancy which came into existence after 1 October 2015 to comply with both limbs of regulation 36(6) of the Gas Safety Regulations – i.e. to provide the pre-occupation gas safety record under paragraph 6(b) and later records under paragraph 6(a). The Court rejected the landlords’ submission that the singular references in regulation 2 of the Assured Tenancy (Notices and Prescribed Requirements) Regulations 2015 meant that only the latest record was required
The reference to “occupation” in regulation 36(6)(b) of the Gas Safety Regulations is to the point in time at which the tenant first went into physical occupation of the demised property. The Court rejected the landlords’ submission that it referred to occupation under each re-granted tenancy.
The decision of HHJ Melissa Clarke in Cassell v Sidhu (9 October 2025, County Court at Reading) that the requirement to keep records for just two years means that only the last two years’ records are required to be given was wrong.

The implications

Although section 21 will be abolished from 1 May 2026 in relation to private sector tenancies, the decision will continue to be relevant to all landlords and tenants where a section 21 notice was served before that date. Moreover, the Court’s decision on the interpretation of regulation 36(6) of the Gas Safety Regulations is a reminder that landlords will continue to be subject to the duty to provide gas safety records to new and existing tenants before and after they first go into occupation – and that failure to do so is punishable as a criminal offence under the Health and Safety at Work Act 1974.

If a landlord cannot prove service of the last gas safety record made before their tenant first occupied, or cannot serve that record before giving a section 21 notice, they cannot recover possession under section 21. For tenancies granted after 1 October 2015, it makes no difference that the tenant first went into occupation under an earlier tenancy before the Deregulation Act 2015 made it a prescribed requirement to have done so.

A copy of the judgment may be accessed here.