Muca v El Amrani

Factual and Procedural Background

Two consolidated appeals concerned whether section 21A of the Housing Act 1988 prevents a landlord from serving a valid notice under section 21 where a tenant was not given a gas safety record certifying a check carried out before the tenant first went into occupation, even if later gas safety records were supplied, the original tenancy pre-dated the insertion of section 21A, and the tenant now occupies under a different tenancy.

Case A (Muca v El Amrani): On 5 February 2014 the Claimant granted the Appellant an assured shorthold tenancy of [Address]. The Appellant was not given a copy of any gas safety record before first occupying in 2014. Annual gas safety records were issued from 2015 to 2024 and copies were provided to the Appellant on 10 January 2025. The Claimant served a section 21 notice dated 28 January 2025. Possession proceedings were issued 6 May 2025. Deputy District Judge Goodchild struck out the claim on 30 July 2025 for non-compliance with the Gas Safety Regulations. On appeal, Judge Roberts allowed the appeal and made a possession order on 11 December 2025. The Appellant appealed to the Court of Appeal.

Case B (Harker v Hubert): The Trustees of a trust granted the Defendants assured shorthold tenancies of a flat commencing in 2007 and subsequently renewed annually; the last fixed-term tenancy began 9 November 2019 and then became periodic. Copies of available gas safety records were re-served on 26 October 2023 and a section 21 notice dated 31 October 2023 was served. Possession proceedings were issued 19 February 2024. Deputy District Judge Reissner found the Trustees entitled to possession (27 February 2025) notwithstanding that some earlier records could not be located. On appeal His Honour Judge Hellman allowed the tenants' appeal (judgment 3 February 2026). The Trustees appealed to the Court of Appeal.

Legal Issues Presented

1. Whether section 21A of the Housing Act 1988 prevents a landlord from serving a valid section 21 notice where the tenant was not given a gas safety record in respect of a check carried out before the tenant first went into occupation.
2. Whether later provision of gas safety records, the fact that the original tenancy pre-dated the insertion of section 21A, or the tenant occupying under a different subsequent tenancy remedy or avoid that bar.

Arguments of the Parties

Landlords' Arguments

• The penalty (inability to serve a section 21 notice) falls unfairly on landlords for omissions that occurred before the 2015 Regulations; the relevant check had in fact been carried out before initial occupation.
• Loss of an old certificate is unsurprising given the statutory two-year retention period; retrospective penalisation and interference with property rights should be avoided.
• Three alternative statutory constructions were advanced to avoid the landlords bearing the full consequence:
  • Interpretation 1: only the most recent gas safety record need be given to the tenant for section 21 to be available;
  • Interpretation 2: the duty to give the "last record" in regulation 36(6)(b) refers to the last record before occupation under the specific tenancy to which the notice relates;
  • Interpretation 3: compliance with prescribed requirements for section 21A requires production of at most the two most recent checks (drawing on the retention rule in regulation 36(3)(c)).

Tenants' Arguments

• The Court of Appeal's decision in Trecarrell requires that a pre-occupation gas safety record is material; late provision may cure some breaches but absence of any pre-occupation record is fatal where section 21A applies.
• Regulation 36 should be read naturally: a person who remains in uninterrupted occupation under successive tenancies is an "existing tenant" for the purposes of regulation 36(6)(a), not repeatedly a "new tenant" under regulation 36(6)(b).
• Interpretations offered by landlords should be rejected as contrary to the text, purpose and statutory scheme; the 2015 Regulations made compliance with both paragraph (6)(a) and (6)(b) of regulation 36 part of the prescribed requirements for section 21A.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court framed the dispute as a question of statutory interpretation of the 2015 Regulations read with regulation 36 of the Gas Safety (Installation and Use) Regulations 1998 and section 21A of the Housing Act 1988. The analysis proceeded in these steps:

1. The Court examined whether section 21A applied to the tenancies in issue. It concluded section 21A did apply because new assured shorthold tenancies were granted after 1 October 2015 in both matters.
2. The Court reviewed prior authorities, especially Trecarrell and Hathaway, to identify established propositions about late compliance, temporal reach and the need for prescribed requirements to be set by the Secretary of State.
3. The Court set out three landlord-favoured interpretations and tested each against the statutory text, context and purposive considerations, including presumptions against doubtful penalisation, interference with property rights and retrospectivity.
4. Interpretation 1 (only most recent certificate required) was rejected because regulation 2(1) of the 2015 Regulations prescribes the requirements contained in regulation 36(6) in full; the singular in the drafting did not override the ordinary meaning and the Interpretation Act presumption that singular includes plural. The Court held the natural reading requires compliance with the relevant parts of regulation 36(6), including the requirement for a pre-occupation record where applicable.
5. Interpretation 2 (the duty in regulation 36(6)(b) refers to occupation under the specific new lease) was rejected on balance. The Court held that, where a person remains in uninterrupted occupation under successive tenancies, that person is an "existing tenant" for the purposes of regulation 36(6)(a); it would be artificial to treat each renewal as a fresh "occupation" triggering regulation 36(6)(b) repeatedly.
6. Interpretation 3 (only two most recent checks matter) was rejected because the 2015 Regulations prescribe the requirements contained in regulation 36(6) and do not incorporate the separate retention rule in regulation 36(3)(c) as a limiter.
7. Applying this construction, the Court concluded that where a tenant was not provided with a gas safety record in respect of checks carried out before the tenant first went into occupation, that omission was fatal to service of a section 21 notice once section 21A applied, even if later records had been supplied and even if the original tenancy pre-dated section 21A.

Holding and Implications

APPEALS: The appeal by the Trustees was dismissed; the appeal by the Appellant in the other matter was allowed.

Direct effect: The Court held that the section 21 notices at issue were invalid because the relevant pre-occupation gas safety records had not been given to the tenants as required; accordingly the landlords could not rely on those section 21 notices to obtain possession. The Court noted that this construction may have adverse consequences for landlords but concluded that the 2015 Regulations must be read as they are drafted. The opinion did not purport to create broader statutory change beyond its textual interpretation and did not set out any alternative remedial scheme.