Good news for residential landlords seeking possession
In a recent case, Spencer v Taylor  EWCA Civ 1600, the Court of Appeal has resolved the previous uncertainty as to which type of section 21 notice (under the Housing Act 1988) should be served once a fixed term assured shorthold tenancy has expired and the tenant remains in occupation on a statutory periodic tenancy.
On or after the end of a fixed term assured shorthold tenancy (AST), the court can order possession of the property if both of the following apply:
- The AST has ended and no further AST exists, other than a periodic tenancy (whether statutory or not).
- The landlord has given the tenant at least two months' written notice that the landlord requires possession of the property
There has previously been uncertainty as to which form of notice should be served. Landlords could serve notice under section 21(1) which does not have to expire on a particular date, or they could choose to serve notice under section 21(4) which must expire on the last day of a tenancy period, specifying that possession is required after that day.
Although the wording of section 21(1)(a) appears to anticipate that the notice may be served during a statutory periodic tenancy and there is nothing to suggest otherwise, the cautious approach has been to comply with the additional requirements of section 21(4) which provides greater clarity.
The case example
In 2006, a landlord granted a tenant a six-month AST beginning on a Monday. The rent was payable weekly and, on the expiry of the fixed term, a weekly statutory periodic tenancy arose, meaning that the end of the periodic tenancy should have been on a Sunday.
On 18 October 2011, the landlord gave notice to the tenant requiring possession of the property:
"(a) after 1 January 2012, or
(b) at the end of your period of tenancy which will end next after the expiration of two months from the service upon you of this notice".
The 1 January 2012 was a Saturday and was, therefore, not the last day of a period of the tenancy. Two months after service of the notice would have fallen on 18 December 2011 and the next Sunday after that was 23 December 2011.
The High Court held that this notice was valid.
On appeal, the tenant argued that section 21(2) prohibited the landlord from serving notice under section 21(1) once the fixed term had expired and that the landlord could only serve a section 21(1) notice before or on the day on which the fixed term tenancy came to an end.
The Court of Appeal held that the original notice was valid.
Implications for landlords
Landlords will welcome this decision. It resolves the ambiguity as to which type of section 21 notice should be served once a fixed term AST has expired where the tenant remains in occupation on a statutory periodic tenancy under section 5(2) of the HA 1988.
Landlords will be able to simply give two months notice regardless of which day of the week it should expire.
Section 21(4) notices will now only be required for ASTs where there was no initial fixed term and the periodic tenancy was granted contractually from the outset.
For more information on section 21 notices or other residential landlord issues and to start a conversation on how we can help you please contact Camilla Askaroff, Solicitor, Dispute Resolution.
Published: 18 Dec 2013