Maksim Muca v Rachida Rechia El Amrani; Helen Harker & Ors v Hugues Hubert & Anor

Section 21A of the Housing Act 1988 prevents service of a section 21 notice while the landlord is in breach of a prescribed gas-safety requirement. Regulation 2 of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 prescribes both the pre-occupation duty and the recurring duty to provide gas-safety records. It removes the 28-day period as a condition of using section 21, but does not reduce compliance to the latest record alone. A tenant who remains in uninterrupted occupation under successive short leases remains an existing tenant for regulation 36(6)(a). Failure to provide the original pre-occupation record therefore remains fatal where section 21A applies, even if later records were supplied and the original tenancy pre-dated the 2015 legislation.

These conjoined appeals concerned possession claims under section 21 of the Housing Act 1988. In the first appeal, Ms El Amrani’s original assured shorthold tenancy began in 2014, followed by a new tenancy in 2017. She had not received a gas-safety record before first occupation, although later records were supplied.

In the second appeal, the Trustees granted successive assured shorthold tenancies from 2007 onwards. The tenants had not been shown to have received the pre-occupation record, although later records were supplied. Deputy District Judge Reissner granted possession, but Judge Hellman allowed the tenants’ appeal. Judge Roberts had allowed Mr Muca’s appeal and made a possession order.

The central question was whether section 21A and the 2015 Regulations required production of the original pre-occupation record despite later certificates, an earlier original tenancy and successive replacement tenancies.

The Trustees’ appeal was dismissed and Ms El Amrani’s appeal was allowed. The section 21 notices were invalid.

1. Application of section 21A. Sections 41(1) and (2) of the Deregulation Act 2015, read with [2021] EWCA Civ 936, mean that section 21A does not apply to an assured shorthold tenancy granted before 1 October 2015 or to a statutory periodic tenancy arising from such a tenancy. It does apply where a later assured shorthold tenancy was agreed after that date. The power under section 41(3) to extend the regulations to older tenancies had not been exercised.
2. Effect of the prescribed requirements. Regulation 2 of the 2015 Regulations prescribes the requirements in regulation 36(6) and (7) of the Gas Safety (Installation and Use) Regulations 1998. Regulation 2(2) removes the 28-day period for the purposes of section 21A and permits late provision of a required record. It does not confine the requirement to the latest record or exclude regulation 36(6)(b).
3. Pre-occupation record. Regulation 36(6)(b) applies when a person first enters occupation as a tenant. Where the person remains in uninterrupted occupation under a second or later lease, regulation 36(6)(a) applies as the recurring duty. The court rejected the construction that every replacement tenancy creates a new pre-occupation obligation.
4. Retention period. The retention obligation in regulation 36(3)(c) did not limit the prescribed requirements in regulation 2. The court therefore rejected the construction that only the two most recent records mattered.
5. Trecarrell. [2020] EWCA Civ 760 did not decide the unargued propositions advanced in these appeals, but it confirmed that regulation 2(2) did not exclude regulation 36(6)(b) and that late provision could cure the relevant breach.

Because the tenants had not received the pre-occupation records, the section 21 notices could not validly be served.

• Court of Appeal (Civil Division) dismissed the Trustees’ appeal and allowed Ms El Amrani’s appeal.
• County Court at Clerkenwell & Shoreditch Judge Hellman allowed the tenants’ appeal from Deputy District Judge Reissner and held the section 21 notice invalid.
• County Court at Romford Judge Roberts allowed Mr Muca’s appeal from Deputy District Judge Goodchild and made a possession order.