Although the Renters Rights Act 2025 has abolished section 21 of the Housing Act 1988, there continues to be litigation relating to notices served under that section prior to its repeal.
In Harker v Hubert [2026] EWCA Civ 515; [2026] H.L.R. 29 (reported under the name of another appeal heard at the same time: Muca v El Amrani), the Court of Appeal held that a landlord cannot give a valid section 21 notice unless a copy of the last gas safety record made before the tenant first occupied the property has been provided even where the tenant first occupied before 2015 being the point at which the provision of a notice became a prescribed requirement for the purposes of section 21 of the Housing Act 1988.
The section 21 was held to be invalid even though the tenant had been supplied with later gas safety certificates and was currently in occupation under a different tenancy agreement.
At first instance, the deputy district judge had made a possession order, holding that to do otherwise would be to give retrospective effect to the prescribed requirement provisions introduced by the Deregulation Act 2015. On the first appeal, HHJ Hellman allowed the tenants’ appeal and set aside the possession order. That decision was upheld by the Court of Appeal on the landlords’ appeal, following a hearing in April 2026.
The Court of Appeal’s decision was handed down the day after the repeal of section 21 but had profound consequences for many landlords relying on section 21 notices served before the Renters Rights Act 2025 came into force. The effect of this decision is that a failure to provide gas safety certificates in respect of the tenant first going into occupation, albeit under a predecessor tenancy will be fatal to the validity of a section 21 notice.
Permission to appeal to the Supreme Court has been granted and is expected to be heard in early April 2027.
