Property Litigation Column: A landlord of an assured shorthold tenancy doesn’t have a pre-tenancy gas safety certificate. Can the section 21 procedure still be used?

A landlord of an assured shorthold tenancy doesn’t have a pre-tenancy gas safety certificate. Can the s.21 procedure still be used?

A recent appeal, Sidhu v Cassell (County Court at Oxford, 9 October 2025, HHJ Clarke) provides clarity on the issue. The answer is yes, in some circumstances.

Section 21 notices can still be served until commencement of the Renters’ Rights Act 2025 (RRA) (1 May 2026). Conventional wisdom is that s.21 is unavailable where there is no pre-tenancy gas safety record (GSR).

Section 21A of the Housing Act 1988 (HA 1988) and Regulation 2(1)(b) of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (AST Regs) provide that no s.21 notice can be served at a time when a landlord is in breach of a prescribed requirement. One such requirement is to give the tenant a GSR, in accordance with Regulation 36(6)(a) or (b) of the Gas Safety Installation and Use Regulations 1998 (GS Regs).

GS Regs 36(6) create two separate GSR requirements. Every landlord must:

(a)   give a copy of a GSR to each existing tenant within 28 days of the gas safety check; and

(b)   give a copy of a GSR made in the 12 months before a tenancy starts, to any new tenant before they take up occupation (pre-occupation GSR).

The GSR must include the date, landlord’s name, address etc to be valid; the most recent two GSRs must be retained (GS Reg 36(3)(c)).

In Trecarrell House Ltd v Rouncefield [2020] EWCA Civ 760, Patten LJ found that late provision of a pre-occupation GSR was sufficient to comply with the prescribed requirement, provided it was given before service of the s.21 notice. However, Trecarrell did not address the situation where there is no pre-occupation GSR in existence at all.

Once a tenant is in occupation, a landlord cannot retrospectively “create” a pre-occupation GSR if there was no pre-tenancy gas check, or if the pre-tenancy GSR has been lost. The landlord could commission a fresh gas safety check and provide a post-tenancy GSR to the now existing tenant, but that would only comply with 36(6)(a) (the existing tenant obligation). It would not be a pre-occupation GSR. Therefore a landlord without a pre-occupation GSR can never comply with the new tenant obligation under 36(6)(b). GS Reg 36(6)(b) is a prescribed requirement under the AST Regs and so, the argument goes, the landlord is forever prevented from serving a s.21 notice (e.g. in Byrne v Harwood Delgado, County Court at Luton, 21 June 2022).

In Sidhu v Cassell, the landlord had provided a pre-occupation GSR. However, the GSR was invalid as it did not contain the landlord’s address as required by GS Regs 36(3)(c). There was therefore no valid pre-occupation GSR which could be relied on. With the tenant in occupation, it was too late to create a valid pre-occupation GSR, so the landlord could not comply with the prescribed requirement to provide a pre-occupation GSR under 36(6)(b). The tenant argued that later GSRs provided in compliance with the existing tenant obligation were irrelevant: the new tenant obligation and the existing tenant obligation were two separate prescribed requirements, both of which had to be complied with (see Byrne). The tenant argued that this invalidated the s.21 notice.

This writer, on behalf of the landlord, relied on Trecarrell, where Patten LJ stated that the s.21 sanction was “collateral to the [criminal] sanctions [for failure to comply with GS Regs] and, at best a spur to compliance”. The requirement in the AST Regs and in Trecarrell to provide the “relevant” GSR could only mean the GSR which was relevant to the particular tenant at the time. Here the AST lasted for many years, so an historic pre-occupation GSR would be irrelevant to the tenant at the time the s.21 notice was served. The “relevant” GSR was the GSR that applied to the tenant at the time of the s.21 notice. The court agreed.

In a clear and comprehensive judgment, HHJ Clarke focused on the requirements of GS Reg 36. She observed that the GS Regs only require a landlord to retain a GSR for two years. Further, it would be unlikely that Parliament would intend a marginal omission (e.g. a gas safety check a few hours after a tenant takes up occupation) to result in a secure tenancy. She agreed that to hold otherwise would lead to absurd results. Both the AST Regs and Trecarrell referred to the “relevant” GSR. The question is what is the “relevant” GSR at any given time.

The judge found that there was no magic in the distinction between the new tenant and the existing tenant obligations. The “relevant” GSR must mean the GSR that the landlord is required to make and retain under the GS Regs, which only require a landlord to retain the last two GSRs. If the tenancy is less than a year old, the landlord must provide both the pre-occupation GSR and, once that GSR is 12 months old, an existing tenant GSR. After a year, it will be the two most recent existing tenant GSRs. This prevents unscrupulous landlords from obtaining a GSR purely for the purposes of eviction.

Comment

The decision in Sidhu provides welcome clarity regarding Trecarrell, by focusing on Parliament’s intention. However, despite its irresistible logic, a requirement to provide the last two GSRs is not obviously based on Trecarrell. Furthermore, HHJ Clarke acknowledged that her decision in Sidhu directly contradicts Byrne. Whilst HHJ Clarke’s judgment is a persuasive read, this creates scope for argument.

Will this soon be irrelevant?

The RRA 2025 creates a mandatory database for privately rented properties. Regulations will likely require landlords to upload a GSR (s.78 RRA). Possession orders are prohibited if the database is not up-to-date (s.7(5ZC) HA 1988).

Unlike the existing regime, the date for compliance will be the date of the order, not the date of the possession notice. That makes HHJ Clarke’s approach (which prevents eleventh-hour compliance by landlords) even more compelling. Hopefully the Secretary of State will heed HHJ Clarke’s judgment, unambiguously requiring the last two GSRs for a possession order. That would “spur compliance” without being stricter than the GS Regs themselves. But if wording for the new regulations is lifted from the much-maligned AST Regs, the judgment in Cassell v Sidhu may continue to provide guidance for landlords and tenants alike.

David Peachey acted for the successful Landlord in Sidhu v Cassell

Article by David Peachey

This article was first published by Thomson Reuters in their practical law litigation column. Please find the link here.