Section 21 and Gas Safety Certificates: What Landlords Must Know
Serving a Section 21 notice without the required compliance documents is one of the most common reasons landlords lose possession cases. Here is exactly what you need to have in place before serving.
The Deregulation Act 2015 linked the validity of Section 21 notices to a landlord's compliance with a number of prescribed requirements. A Section 21 notice served without the required documents being in place is invalid — and a landlord who attempts to evict a tenant using an invalid notice may find themselves on the receiving end of a claim for unlawful eviction as well as an inability to recover possession.
What documents are required before serving a Section 21?
For tenancies in England that started on or after 1 October 2015 (and all existing tenancies after 1 October 2018), a landlord must have provided the tenant with:
- A valid gas safety certificate. The most recent annual gas safety certificate must have been provided to the tenant before they occupied the property, or within 28 days of it being issued during the tenancy.
- The Energy Performance Certificate (EPC). A copy must have been provided to the tenant before the tenancy started.
- The government's How to Rent guide. The most current version must have been provided at the start of the tenancy. If the guide has been updated during the tenancy, the updated version must be provided at renewal.
- Deposit protection information. If a deposit was taken, it must have been protected in a government-approved scheme within 30 days and the Prescribed Information provided to the tenant.
Does an EICR affect a Section 21 notice?
Failure to provide a copy of the EICR to the tenant does not currently invalidate a Section 21 notice directly. However, a local authority can serve an improvement notice on a landlord who does not hold a valid EICR, and this could complicate a possession claim. Compliance with the EICR regulations is a separate legal obligation that should be maintained regardless of any Section 21 considerations.
What if the gas safety certificate has expired?
A Section 21 notice requires the landlord to have provided the most recent gas safety certificate to the tenant. If the certificate has expired and a new one has not been issued and provided to the tenant, the Section 21 notice is invalid. There is no cure for a missed annual gas safety check — you cannot retrospectively provide a certificate that did not exist when notice was served.
What about retaliatory eviction protections?
If a tenant has made a written complaint about the condition of the property and the local authority has served a relevant notice in response, the landlord cannot serve a valid Section 21 notice for 6 months from the date of that notice. Maintaining properties in good repair and responding promptly to reported maintenance issues reduces the risk of falling foul of these protections.
Frequently asked questions
Can I serve a Section 21 notice without a gas safety certificate?
No — a valid gas safety certificate must have been provided to the tenant before the tenancy started, or within 28 days of it being issued during the tenancy. A Section 21 served without this is invalid.
Does the gas safety certificate need to be current when I serve Section 21?
The certificate that must have been provided is the most recent one at the time you're assessing validity. If that certificate has since expired and a new one has been issued, you should provide the new one to the tenant promptly.
Can a tenant challenge a Section 21 on compliance grounds?
Yes — tenants can raise compliance defences in possession proceedings. Courts will examine whether prescribed documents were provided. An invalid Section 21 will be dismissed, requiring the landlord to restart the process.
What happens if I forgot to give the tenant the How to Rent guide?
A missing How to Rent guide invalidates the Section 21 notice. In many cases you can remedy this by providing the guide before serving the notice — but the notice must be served after providing the guide, not before.