Section 21, gas safety certificates, and the Renters’ Rights Bill: Key risks for landlords and charities

The Renters' Rights Bill ("the Bill") is currently in the final stages of its passage through Parliament and is expected to become law in autumn 2025. In the run up to this historical change to tenants' rights, gas safety has become a significant battle ground.

When the Bill was introduced to the House of Commons in September 2024, the courts saw an increase in possession claims from landlords as they sought to obtain possession of property before the Bill came into force. Such actions were particularly important for institutional landlords who wished or needed to retain (rather than sell) property and who might have no other basis for gaining possession. Official figures from the Ministry of Justice suggest that this trend has begun to fall off, with the January to March 2025 quarter showing a 4% reduction in landlord possession claims. This may, however, simply reflect that the majority of those landlords had already played their cards.

The general increase in possession claims being issued and proceeding to trial within the UK Courts is indicative that more tenants are disputing the validity of Section 21 notices and also refusing to vacate without a court order.  In some cases, this is simply necessary to avoid being deemed to have intentionally made themselves homeless, which impacts their position on housing lists. In others, this is the true battleground of the right to remain as assured tenants, potentially for life.

Gas safety certificates

In general terms, the service of a section 21 notice (the current form of non-fault notice to be abolished) is only valid if certain 'Prescribed Documents' have been provided to the tenant. To this end, it is required that:

1. A valid gas safety certificate is obtained prior to or at the commencement of a tenancy (or where there has been a change of landlord at the outset of its ownership).
2. A valid gas safety certificate is in place at the time of serving a section 21 notice.
3. Copies of the gas safety certificates referred to in (1) and (2) are served to tenants prior to the service of the section 21 notices. The service of the EPC and How to Rent Guide is also required prior to service of the section 21 notice.

In particular, the Gas Safety (Installation and Use) Regulations 1998 require landlords to ensure that:

• Each appliance and flue is checked within 12 months of being installed and at intervals of not more than 12 months thereafter.
• The gas safety certificate is retained until two further checks have been completed.
• The completed gas safety certificate is made available to any person in lawful occupation of the property who may be affected by the use or operation of any appliance to which the record relates.
• A copy of the gas safety certificate is given to each existing tenant of the property to which the record relates within 28 days of the date of the check.
• A copy of the last record made in respect of each appliance or flue is given to any new tenant of premises to which the record relates before that tenant occupies those premises (where the tenant will be occupying for a period of more than 28 days).

Where a tenanted property has been left to a charity under a deceased's will, it is not uncommon for circumstances to arise where executors are unable to provide details of gas safety inspections, especially if these inspections have been undertaken privately rather than through a letting agency. This is also common in cases of insolvency. If a landlord is unable to prove a gas safety certificate was completed prior to the commencement of the tenancy and / or its own tenure, this, of course, provides a potential point of dispute for the tenant when objecting to a landlord's possession claim.  This creates an unfair risk for landlords, particularly those who have found themselves unintentionally as landlords through probate or insolvency.

In Trecarrell House Ltd v Rouncefield [2020] EWCA Civ on 18 June 2020, the Court of Appeal concluded that a section 21 notice was not invalidated by the landlord's failure to provide the relevant gas safety certificate prior to the tenants occupying the property as it was provided prior to the service of the section 21 notice. However, this precedent does not cover a situation where a landlord is unable to provide evidence that there was a valid gas safety certificate in place at the outset of the tenancy or tenure.

Trecarrell noted that the statutory requirement is only that gas safety certificates be retained until two subsequent checks are completed. This does not, of course, assist with providing that a check was carried out at the outset of the tenancy or tenure. Gas engineers are not required to retain completed certificates for more than the two-year period required.  Further, since there is also no central database in which such certificates are recorded, it is vital that landlords and any potential donees of land are encouraged to keep careful records.

Charitable beneficiaries of property

For the charitable beneficiaries of property left to them as gifts in Wills, one of the barriers to seeking possession in line with current non-fault grounds (section 21 of the Housing Act 1988) is proving that the "prescribed documents" (a valid Energy Performance Certificate ("EPC"), Gas Safety Certificates and the How to Rent guide) were obtained and served to tenants before or at the commencement of tenancies. 

Renters' Rights Bill

To date, the question of the effect of not being able to provide historic copies of gas safety certificates on the validity of a Section 21 notice has not been fully tested. The upcoming Bill will abolish section 21 evictions altogether, meaning that landlords will only be able to obtain possession of their properties for a prescribed set of reasons pursuant to section 8 of the Housing Act 1988.  A non-fault ground for possession under the section 8 eviction process is, for example, a landlord or a family member wishing to occupy the property or the landlord wishing to sell the property or similarly in the case of employment.  The latter ground can be relied on by a landlord only when after a minimum period of 12 months has passed since the tenancy commenced. In both cases, notice must be given when entering into the tenancy.

In its current form, the Bill itself will not require landlords to demonstrate that the prescribed documents have been correctly served on their tenants. It remains to be seen whether a similar requirement will be picked up in secondary legislation or whether some common sense may prevail for cases where documents have simply been misplaced, particularly in the cases of those who find themselves as unintentional landlords (either through probate or insolvency).  It is otherwise nonsensical for landlords to lose the right to possession simply through the loss of a document which is beyond their control.