Harker and others v Hubert and another [2026]

On 5 August 2026, the Supreme Court granted permission to appeal in Harker and others v Hubert and another (UKSC/2026/0067).

The appeal arises from possession proceedings concerning a property in London where the landlords served a section 21 notice despite having failed to provide the tenants with the gas safety record that should have been given before the tenants first took occupation in 2007, as required by the Gas Safety (Installation and Use) Regulations 1998.

The case raises an important question concerning the consequences of historic non-compliance with gas safety obligations and whether such failures can permanently prevent a landlord from relying on a section 21 notice.

Background

Following a trial on 13 February 2025, Deputy District Judge Reissner held that the landlords were not required to provide the pre-occupation gas safety record in order validly to serve a section 21 notice. The court therefore granted possession and ordered the tenants to pay the landlords' costs. A possession order was made under section 21 of the Housing Act 1988 on 27 February 2025.

The tenants appealed.

His Honour Judge Hellman allowed the appeal, finding that compliance with the requirement to provide the pre-occupation gas safety record was a condition precedent to the service of a valid section 21 notice. He concluded that DDJ Reissner had erred in treating the issue as one involving impermissible retrospective application of regulation 2 of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015. The possession order and costs order were therefore set aside.

The landlords appealed to the Court of Appeal, which was dismissed. They now seek to overturn that decision in the Supreme Court and restore the original possession order.

The Court of Appeal's decision

On 30 April 2026, the Court of Appeal handed down judgment in the conjoined appeals of Harker v Hubert and Muca v El-Amrani.

The Court dismissed the landlords' appeal and held that:

• For any tenancy to which the prescribed requirements regime applies, landlords must comply with both limbs of regulation 36(6) of the Gas Safety Regulations.

• This includes providing both: 

  • the gas safety record relating to the inspection carried out before the tenant first occupies the property (regulation 36(6)(b))

  • subsequent annual gas safety records (regulation 36(6)(a))

• The reference to "occupation" in regulation 36(6)(b) means the tenant's first physical occupation of the property, not occupation under later renewal or replacement tenancies

• The failure to provide the pre-occupation gas safety record cannot be avoided by relying on a later re-grant of the tenancy

In practical terms, the Court accepted the tenants' argument that a landlord cannot rely on a section 21 notice where the required pre-occupation gas safety record was not provided, even where the tenant first entered occupation before the prescribed requirements regime introduced by the Deregulation Act 2015 came into force.

The question before the Supreme Court

The central issue before the Supreme Court is whether a section 21 notice is invalid where a landlord failed to provide the gas safety record relating to the inspection undertaken before the tenant first occupied the property, in circumstances where that occupation pre-dated the Deregulation Act 2015 and the introduction of the prescribed requirements regime.

Put another way, the Court must decide whether Parliament intended historic failures to provide pre-occupation gas safety records to have continuing legal consequences for landlords seeking possession years later.

Why the appeal remains important despite the abolition of section 21

At first glance, practitioners may question the continued significance of the appeal following the abolition of section 21 "no-fault" evictions in England under the Renters' Rights Act 2025, which came into force on 1 May 2026.

That view, however, overlooks several reasons why the Supreme Court's judgment is likely to remain important.

Ongoing relevance for social landlords

The case may also retain practical significance for social landlords.

Where social landlords continue to hold assured shorthold tenancies and remain able to rely on transitional section 21 rights until October 2027, the Supreme Court's ruling will directly affect possession claims currently progressing through the courts.

Even beyond section 21 itself, the Court's discussion of:

• prescribed requirements

• statutory conditions precedent

• historic compliance failures

• documentary proof of compliance

is likely to be cited in future litigation involving regulatory obligations in the housing sector.

Relevance to Welsh housing law

As stated above, section 21 has been abolished in England for private landlords, although it remains available for social landlords until October 2027. Wales, however, operates under a separate statutory framework through the Renting Homes (Wales) Act 2016.

The Welsh regime contains its own possession procedures and places significant emphasis on compliance with statutory obligations, including gas safety requirements. The Supreme Court's analysis of:

• statutory interpretation

• the consequences of regulatory non-compliance

• retrospective effect

• the evidential burden 

On landlords will undoubtedly have significant persuasive value in Welsh possession cases.

In particular, the reasoning may prove influential where landlords:

•    cannot demonstrate historic compliance
•    cannot produce gas safety documentation
•    seek possession through equivalent no-fault procedures
•    argue that a historic breach has been remedied by subsequent compliance

Wider implications for gas safety compliance

Perhaps the most enduring aspect of the case concerns the courts' approach to gas safety obligations generally.

The Court of Appeal treated the requirement to provide the pre-occupation gas safety record as a substantive statutory obligation rather than a mere procedural formality. It rejected arguments that later compliance automatically cures a historical failure.

The Supreme Court's decision therefore has the potential to clarify a broader legal principle: when does non-compliance with a safety-critical obligation have permanent legal consequences?

That issue extends far beyond section 21 notices and may influence future disputes concerning regulatory compliance across the housing sector.

The importance of historic record retention

The case also illustrates the importance of long-term record keeping.

The dispute centred on events dating back almost two decades. The tenants entered occupation in 2007, yet the landlords' ability to recover possession depended upon proving compliance with a statutory obligation that arose before occupation commenced.

The Court of Appeal's decision demonstrates that missing records can have significant consequences many years after the event. For housing providers and property managers, the case serves as a reminder that historic compliance documentation may become critical evidence in future litigation.

Practical lessons for landlords

Although the appeal is framed around section 21, its practical lessons relate more broadly to compliance governance, evidence preservation, and risk management.

Landlords should:

• Retain gas safety records indefinitely wherever possible

• Maintain clear evidence demonstrating when and how documents were served on tenants

• Preserve compliance records through renewals, assignments, stock transfers, mergers, and management changes

• Obtain signed acknowledgements of receipt where practicable

• Retain email delivery records and electronic audit trails

• Use document management systems capable of evidencing service

• Treat pre-occupation compliance requirements as critical risk areas

• Conduct regular audits of onboarding and compliance procedures

• Escalate missing certificates or documentary gaps immediately

• Ensure legal, compliance, and housing management teams work together to maintain accurate records

• Verify that compliance documentation can be retrieved quickly for litigation purposes

• Undertake periodic file reviews to identify and address evidential weaknesses

Conclusion

Although section 21 has now been abolished in England for private landlords and is due to be abolished for social landlords in October 2027, Harker v Hubert remains an important case. The appeal raises fundamental questions about the legal consequences of historic gas safety failures, the interpretation of housing legislation, and the extent to which later compliance can remedy earlier breaches.

The Supreme Court's judgment is therefore likely to have significance beyond section 21 notices, influencing future disputes concerning regulatory compliance, evidential requirements, and possession proceedings in both England and Wales.

If any organisations need assistance in relation to section 21 Notices and compliance with the Gas Safety (Installation and Use) Regulations 1998 please do not hesitate to contact us.

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