Gas safety compliance and Section 21: why historic evidence still matters after repeal

Although Section 21 has now been repealed by the Renters’ Rights Act 2025, gas safety compliance remains a live issue for landlords who served Section 21 notices before the new regime came into force.

For those cases, the question is not simply whether the property now has a current gas safety record. The critical issue is whether the landlord can show that the last gas safety record made before the tenant first occupied the property was provided to the tenant before the Section 21 notice was served.

The Court of Appeal’s decision in Harker v Hubert [2026], reported under the name of the linked appeal, Muca v El Amrani, confirms that a landlord cannot give a valid Section 21 notice unless that historic gas safety record has first been provided. Importantly, the Court of Appeal held that this applies even where the tenant first occupied the property before 2015, when provision of the notice became a prescribed requirement for the purposes of Section 21 of the Housing Act 1988.

Where the law stands now

The current position is that the repeal of Section 21 does not remove the issue for claims based on notices served before the Renters’ Rights Act 2025 came into force. Those notices may still be scrutinised by reference to the prescribed requirements that applied when they were served. If the landlord had not provided the relevant pre-occupation gas safety record before service, the notice may be invalid.

In Harker v Hubert, the deputy district judge had originally made a possession order, accepting that applying the requirement to tenancies that began before 2015 would give retrospective effect to the Deregulation Act 2015. That approach was rejected on appeal. HHJ Hellman allowed the tenants’ appeal and set aside the possession order, and the Court of Appeal upheld that decision. The effect is that landlords cannot assume that pre-2015 occupation takes the tenancy outside the gas safety restrictions on Section 21.

That’s why the decision has significant consequences for landlords who served Section 21 notices before repeal. A notice that appeared valid when served may now be vulnerable if the landlord can’t evidence service of the relevant historic gas safety record. The practical focus should therefore be on the validity of existing notices and live possession claims, not only on future compliance.

Why this is a current risk, not just a historic concern

For landlords, the main difficulty is evidential. In many cases, there may be a current gas safety record and a good record of annual checks. That will not answer the question posed by Harker v Hubert. The court may need to know whether the last gas safety record issued before occupation was provided to the tenant before the Section 21 notice was given.

This creates a particular problem for older tenancies, inherited portfolios, stock transfers, management changes and properties where onboarding records are incomplete. The risk is not limited to poor current compliance. A landlord with strong present-day systems may still face a possession barrier if the original sign-up file is missing or defective.

The fact that Section 21 has now been repealed may create a false sense of closure. In practice, the decision remains highly relevant to notices served before repeal, existing possession proceedings, stayed or adjourned claims and any case where a landlord is seeking to rely on a notice issued under the previous regime. Those cases should be reviewed carefully before further costs are incurred.

Why registered providers should pay close attention

Although the issue is most often discussed in the private rented sector, registered providers can be exposed in several ways. The most obvious exposure is where they use ASTs for market rent, key worker accommodation or rent-to-buy schemes. It also arises where a registered provider has acquired stock from another provider, a private developer or a managing agent and doesn’t hold complete historic onboarding records.

For starter tenancies and other AST-based products, the point is especially acute where a Section 21 notice was served before repeal. If the notice is invalid because the relevant gas safety record was not provided, the intended possession route may fall away. The provider may then need to review whether an alternative route is available, whether the tenancy has converted or whether the claim should be discontinued or re-pleaded.

There’s also a wider regulatory dimension. Gas safety compliance is central to consumer standards and tenant safety obligations. Even where the immediate possession route is not Section 21, a historic compliance failure may still affect litigation strategy, regulatory reporting, asset risk and the landlord’s overall position if challenged.

Managing tenancies where the evidence is incomplete

Where an existing or historic Section 21 notice is affected by evidential gaps, the landlord should consider the objective before deciding on a strategy. If possession is still required, alternative routes may need to be explored, including Section 8 grounds where available.

In some cases, the better course may be to pause, review the file and avoid incurring further costs on a claim that may be vulnerable to challenge. For acquisitions, refinancing or stock transfer work, missing pre-occupation records should also be treated as a legal and valuation risk where historic Section 21 notices or possession strategies remain relevant.

Looking ahead

The immediate lesson from Harker v Hubert is that repeal has not neutralised the risk for landlords relying on old Section 21 notices. The Court of Appeal’s decision was handed down after repeal, but it directly affects notices served before the Renters’ Rights Act 2025 came into force. Those notices should not be assumed to be safe simply because they were served under the previous regime.