Failure to serve a gas safety certificate at the commencement of a tenancy could now prevent the use of the s21 notice

This case law update comes off the back of Byrne v Harwood-Delgado [2022]

Facts of the case

The tenant moved into the property in in August 2019.

The tenant was served a gas safety certificate dated September 2019 in November 2019. In October 2020, a further gas safety record was obtained and sent to the tenant.

The landlord then served a section 21 notice seeking possession on 7 November 2020.


At first instance, the District Judge relied on the Court of Appeal’s decision in Trecarrell House Ltd v Rouncefield [2020] HLR 39, and made a possession order on the basis that any breach had been remedied by service of any gas safety record prior to service of the s21 notice.

It was held on a County Court appeal case that if a gas safety certificate is not obtained prior to a tenancy commencing, the landlord will be prohibited from terminating the tenancy using a s21 notice. If the landlord requires possession of the property, they need to wait for the tenant to either breach the tenancy or leave of their own volition.

It is important to note that if the gas safety certificate was obtained but not served prior to the tenancy commencing, the landlord can remedy this position by serving the original gas safety certificate before the s21 notice is served.

While this judgement is not binding, it is likely to be used by tenants to oppose s21 evictions.

This case is yet another blow for landlords of residential properties. If an investor is considering purchasing a property which is subject to an assured shorthold tenancy it is vital that they carry out their due diligence to ensure that they can recover the property if needed.

For a full Case Law report please contact our property litigator, Gemma Richards.

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