Rejected Section 21 at the Court by the Judge

sirajuddin

I'm an unfortunate single landlord. Original tenancy started in Dec 2015. During that tie I provided tenant with EPC, PAT, electrical installation conditions report, how to rent guide but I'm not sure of GSC as can't find any trace of GSC. 
In 2022, another tenancy agreement was signed which I have valid GSC.

I served S21 in 1 Aug 2024 which I have all required documents accounted for 
7 Mar 2025,  I attended a hearing at the court as Judge asked to provide all GSC covering the period during which defendant occupied the property.

During hearing the Judge rejected the S21 as I failed to provide a valid GSC at the beginning of the original tenancy.
How can I now go about taking the tenant out of the property - what is the way out to serve a valid S21 please 

gazfocus

Have you had any EICR done since 2015 as you should be having that done every 5 years. 

Your best bet is to make sure you get a GSC done and a new EICR if you’ve not got a valid one (within last 5 years) plus go through the Section21 checklist, then try section 21 again once you’re confident all your documents are in order. 

Bookworm105

gazfocus said:

Have you had any EICR done since 2015 as you should be having that done every 5 years. 

Your best bet is to make sure you get a GSC done and a new EICR if you’ve not got a valid one (within last 5 years) plus go through the Section21 checklist, then try section 21 again once you’re confident all your documents are in order. 

OP cannot retrospectively magic up a GSC dated in 2015 as that is the reason the judge refused the case

sirajuddin

gazfocus said:

Have you had any EICR done since 2015 as you should be having that done every 5 years. 

Your best bet is to make sure you get a GSC done and a new EICR if you’ve not got a valid one (within last 5 years) plus go through the Section21 checklist, then try section 21 again once you’re confident all your documents are in order. 

Hi

Yes I do have now a valid EICR, GSC, plus all other required documents to covered section 21 service period but it was rejected because I failed to provide GSC for the beginning of the original tenancy. 

anselld

Lack of EICR does not automatically invalidate s21 unless, for example, it causes a breach of licensing conditions in a licenceable property, hmo, etc.

This would suggest the failure to provide a GSC at the outset cannot be rectified unless it was done and the certificate lost....

https://england.shelter.org.uk/professional_resources/legal/possession_and_eviction/notices_in_possession_proceedings/what_makes_a_section_21_notice_invalid

... which leaves very few options ...

(1) find the original certificate

(2) offer some financial inducement to leave

(3) wait until there is an opportunity to use s8

gazfocus

Bookworm105 said:

gazfocus said:

Have you had any EICR done since 2015 as you should be having that done every 5 years. 

Your best bet is to make sure you get a GSC done and a new EICR if you’ve not got a valid one (within last 5 years) plus go through the Section21 checklist, then try section 21 again once you’re confident all your documents are in order. 

OP cannot retrospectively magic up a GSC dated in 2015 as that is the reason the judge refused the case

I didn’t suggest that the OP magic up a GSC from 2015 but they need to make sure they’ve got one now. They can’t be banned from serving a section 21 forever because of not having historical GSC paperwork so the priority is ensuring they are compliant now. 

gazfocus

sirajuddin said:

gazfocus said:

Have you had any EICR done since 2015 as you should be having that done every 5 years. 

Your best bet is to make sure you get a GSC done and a new EICR if you’ve not got a valid one (within last 5 years) plus go through the Section21 checklist, then try section 21 again once you’re confident all your documents are in order. 

Hi

Yes I do have now a valid EICR, GSC, plus all other required documents to covered section 21 service period but it was rejected because I failed to provide GSC for the beginning of the original tenancy. 

I’m not sure what the process would be in that case. You might be better off getting in contact with an eviction specialist and see if they can help. 

saajan_12

sirajuddin said:

In 2022, another tenancy agreement was signed which I have valid GSC. 

I didn't think a lack of historical GSCs invalidated a Section 21 notice. If it did, then there would be no way to evict a compliant tenant. This page on Shelter seems to echo that

https://england.shelter.org.uk/professional_resources/news_and_updates/when_landlords_cannot_use_section_21_notices#:~:text=Gas safety requirements&text=A copy of the last,the start of the tenancy.

However OP, have you served a GSC since the one in 2022? These are required annually, not just at the start of the tenancy. Did you demonstrate this to the judge at the hearing? If so, you may have an argument for appeal.  

BikingBud

sirajuddin said:

I'm an unfortunate single landlord. Original tenancy started in Dec 2015. During that tie I provided tenant with EPC, PAT, electrical installation conditions report, how to rent guide but I'm not sure of GSC as can't find any trace of GSC. 
In 2022, another tenancy agreement was signed which I have valid GSC.

I served S21 in 1 Aug 2024 which I have all required documents accounted for 
7 Mar 2025,  I attended a hearing at the court as Judge asked to provide all GSC covering the period during which defendant occupied the property.

During hearing the Judge rejected the S21 as I failed to provide a valid GSC at the beginning of the original tenancy.
How can I now go about taking the tenant out of the property - what is the way out to serve a valid S21 please 

I might be going weak here and showing some empathy to landlords but that's harsh.

Did you ask the Judge, given that they found the situation unacceptable, if they could contemplate a situation where this was ever recoverable?

I know it is necky to ask that but if you have continuity of all required documents for all relevant dates, bar the GSC at the inception of the lease in 2015 and certainly have been in place since 2022 when the new lease was signed and renewed in line with legislation since what more can you do?

The world has moved on massively since 2015, knowledge about private rentals, focus and pressures to support tenants are entirely different but you cannot make good what was a historic mission only comply going forward. 

RHemmings

saajan_12 said:

sirajuddin said:

In 2022, another tenancy agreement was signed which I have valid GSC. 

I didn't think a lack of historical GSCs invalidated a Section 21 notice. If it did, then there would be no way to evict a compliant tenant. This page on Shelter seems to echo that

https://england.shelter.org.uk/professional_resources/news_and_updates/when_landlords_cannot_use_section_21_notices#:~:text=Gas safety requirements&text=A copy of the last,the start of the tenancy.

However OP, have you served a GSC since the one in 2022? These are required annually, not just at the start of the tenancy. Did you demonstrate this to the judge at the hearing? If so, you may have an argument for appeal.  

Legal opinion is here:

https://gasolicitors.com/landlord-tenant/landlord-and-tenant-gas-safety-certificates-section-21-notices-and-byrne-v-harwood-delgado/

Consequences for landlords if the Byrne v Harwood Delgado decision is followed by other courts:

A landlord who did not obtain a gas safety certificate prior to the start of an AST (assured shorthold tenancy agreement) is barred from using the section 21 procedure to recover possession. The landlord in this situation can now only evict their tenants using section 8 of the Housing Act with reliance on at least one of the grounds for possession found in Schedule 2 of the Housing Act. The only exception would be for a landlord who had an AST which became a statutory periodic tenancy prior to 1 October 2015. This exception is based on the Court of Appeal decision in Minister v Hathway. My view is the landlord in this situation could still use section 21.

The decision in Byrne v Harwood Delgado effectively changes an Assured Shorthold giving the tenant greater security from eviction. HHJ Bloom appears to acknowledge this when she says:

“I agree with Ms Bullen-Manson that the failure to obtain a GSR prior to occupation turns the tenancy into something that the parties did not envisage but the remedy is to comply with Regulation 2(2) and obtain the relevant record before the tenant moves in.”

If we follow the decision in Byrne v Harwood Delgado, a gas safety certificate is now a valuable document that can affect the landlord’s ability to gain possession. There is no central record for a GSC. What if the GSC is lost? Many landlords may have given the GSC to the tenant and not kept a copy. The landlord will presumably have to try and locate the gas engineer and hope a copy was retained. Alternatively, obtain evidence (under a civil burden of proof) to establish that a gas safety certificate was in existence before the AST was signed and the tenant took possession of a gas-safe property.

The decision may cause practical problems. For example, many landlords inherit properties from loved ones who have sadly passed away. If the deceased landlord did not have the tenancy documents the executors or beneficiaries are unlikely to be able to give direct evidence as to what did or did not happen. Hopefully, an agent may have been involved and will be able to supply the documents.

If limited to a S8, then the tenant can be evicted for the following reasons:

https://blackslegal.co.uk/what-are-the-grounds-for-possession-section-8-notices-for-landlords/

Mandatory Grounds 

If a mandatory ground is proven, the court must grant possession to the landlord. The current mandatory grounds are: 

• The landlord (or a member of their family) plans to move into the property. 

• The landlord wants to sell the property. 

• The landlord’s mortgage provider is repossessing the property. 

• The landlord doesn’t own the freehold for the property, and the leasehold has ended. 

• The property is a student let through an educational institute for a fixed term. 

• A religious organisation needs the property of a religious minister. 

• The landlord intends to demolish or redevelop the property. 

• The tenant has passed away. 

• The tenant has committed serious anti-social behaviour. 

• The tenant doesn’t have the right to rent. 

• The tenant is in at least three months rent arrears. 

Discretionary Grounds 

Unlike mandatory grounds, in the case of discretionary grounds, the court is able to decide whether an eviction is justified on a case-by-case basis. 

The current discretionary grounds are: 

• The landlord has provided like-for-like accommodation comparable to the current tenancy. 

• The tenant is in rent arrears (but not yet three months’ worth). 

• The tenant is not in arrears but has been constantly late paying their rent. 

• The tenant has damaged or neglected the landlord’s property. 

• The tenant is causing a neighbourly nuisance. 

• The tenant is using the property for illegal activity. 

• The tenant has damaged furniture provided by the landlord. 

• The tenant has breached other terms of the tenancy agreement. 

• The tenancy was obtained with a false statement. 

That's by far the longest list of reasons for a landlord being able to evict via a S8 notice that I have ever seen. 

One thing that's not clear from the OP is why the OP wants the tenant out.

Is it grounds such as wanting to sell the property? Or the OP wanting to move in? In which case a S8 should be feasible.

If it's just to get a new tenant who may pay a higher rent, then assuming the tenancy is now rolling, a S13 notice to increase the rent to market rates (but no more) can be served. If the tenant isn't damaging the property, isn't being antisocial or being a nuisance in other ways, than I can't see anything wrong with the tenancy continuing, at the current market rent. 

Or is it something different? 

Olinda99

Witb no GSC from the tenancy stsrt the OP cannot now (ever) use S21 to evict but must now use one of the S8 grounds.

The upcoming RRB may change this - who knows.