Section 173 notices and gas safety records

Apologies for the lack of posting last week (I was away).  This week, there are obviously other considerations and we will be watching the news with bated breath as so much of consequence for housing is dependent on events today (I’m writing this on Thursday).

As an aside to that, there has been a really rather important development around gas safety certificates in England which may be relevant to the validity of s. 173 notices.  By Sch 9A, para 5C(2), “A landlord may not give notice at a time when the landlord has not complied with regulation 36(6) or (as the case may be) (7) of the Gas Safety Regulations (requirement to provide or display report on safety etc. of gas installations)”.  The relevant “Gas Safety Regulations” are the Gas Safety (Installation and Use) Regulations 1998, SI 1998/2451.  By reg 36(6):

“… every landlord shall ensure that—

(a) a copy of the record made pursuant to the requirements of paragraph (3)(c) above is given to each existing tenant of premises to which the record relates within 28 days of the date of the check; and

(b) 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 save that, in respect of a tenant whose right to occupy those premises is for a period not exceeding 28 days, a copy of the record may instead be prominently displayed within those premises.”

In Muca v El Amrani; Harker v Hubert[2026] EWCA Civ 515, the Court of Appeal had to decide whether, under English Legislation, the landlord was entitled to serve a section 21 notice (their old, and now no longer equivalent of our s 173) where there had been non-compliance with Reg 36(6)(b), ie the landlord had not served a gas safety certificate relating to the period before the tenant occupies the property at any time before serving the section 21 notice (even where one had been obtained).  Different respected Circuit Judges had come to different conclusions on the point.  However, the Court of Appeal held a failure to serve that notice on the tenant/s prior to service of the notice was fatal to a claim for possession based on a section 21 notice.  It’s not a particularly mindblowing judgment, as it confirms the position in Trecarrell House Ltd v Rouncefield [2020] EWCA Civ 760; but it is an important reminder of the requirements.

The question, then, is the extent to which that decision applies to us here.  On the face of it, para 5C(2) is clear – there must be compliance with Reg 36(6), ie in respect of both notices before the s 173 notice is valid.  Reg 5C(3) doesn’t help the landlord.  It provides that:

“For the purposes of sub-paragraph (2), a landlord who has not complied with regulation 36(6) or (7) of the Gas Safety Regulations is to be treated as in compliance with the provision in question at any time when—

(a) the landlord has ensured that the contract-holder has been given, or (as the case may be) there is displayed in a prominent position in the dwelling, a copy of a gas safety record, and

(b) that record is valid.”

My sense is that paragraph simply overwrites the 28 day limit in the Gas Safety Regs so that, if you are outside that time limit when you serve/display the record, you are fine, as long as you serve/display the record before issuing the s 173 notice (so adopting the Trecarrell position in Wales, which would make sense as these were amendments to Renting Homes made in 2022).

If you will forgive me a moment, I cannot help but think that Giles would have enjoyed this moment intellectually, recognising the issues far better than me.  Justin has posted that Giles’ funeral will be at noon on 22 May 2026 and will take place at Harwood Park Crematorium https://www.crematorium.co.uk/.