Tuesday 25 March 2014

Section 21 notice simplified by the Appeal Court

It's not inevitable that the landlord/tenant relationship will reach a stage where serving a notice to end the tenancy is required - but sometimes it is unavoidable.

A wrong choice of the legislative section under which to serve the notice, and how the termination date was recorded in it, has been exploited by some tenants to swerve round the notice and continue occupation.

However, the Court of Appeal has issued a new decision on Section 21 of the Housing Act 1988 which governs notices (Spencer v Taylor [ 2013] EWCA Civ 1600).

The effect is likely to simplify serving notice to terminate statutory periodic Assured Shorthold Tenancy (AST).

In the case under appeal, the tenant argued that the notice to quit given under Section 21(4) was invalid because it gave the termination date as a Saturday when it should have been a Sunday and that the customary "saving provision" in the notice to ensure its efficacy made it uncertain as it provided two different termination dates.

Lord Justice Lewison, a leading property QC during his time at the bar, gave the leading judgment and dismissed the appeal. Firstly, he held that the two different dates provided by the use of the customary saving provision did not invalidate the notice. However, more interesting was that he also decided the notice served was valid under section 21(1)(b) of the act and so the landlord's expiry date, which was more than two months from the date of service, was all that was required.

Previously, it was considered that a notice under section 21(4) must be used where possession was required after the end of a fixed term tenancy and must give two months' notice to expire at the end of a relevant period.

This is no longer the case. The law now states that a landlord wishing to gain possession of a property let on an AST, which was a fixed term and has now become periodic, simply gives two months' notice in writing in accordance with the terms of the tenancy agreement and with section 21(1)(b). There is no need for concern with regard to working out the "period" of the tenancy.

Whilst the new law is good news, I still recommend that landlords are cautious as the case could be still be subject of appeal to the Supreme Court and there could be confusion surrounding the new case law.

Based on advice we have received from Pain Smith solicitors we suggest continuing to serve notices on behalf of our landlords that comply with section 21 (4)(a), at least for the near future.


Lisa Simon, 
Partner
Head of Residential Lettings
T: 020 7518 3234 
E: lisa.simon@carterjonas.co.uk

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