Section 21 possession notices and eviction
I am pleased to report a Court of Appeal related decision on section 21 notices, which finally takes a sensible attitude on saving clauses.
As you may or may not know, where the notice is served after the fixed term has come to an end, the persons drafting the legislation in their wisdom, specified that the landlord must state in the notice a date which is the last day of a period of the tenancy. Or, to quote the relevant section of the Housing Act 1988:
Section 21
(4) Without prejudice to any such right as is referred to in subsection (1) above, a court shall make an order for possession of a dwelling-house let on an assured shorthold tenancy which is a periodic tenancy if the court is satisfied—(a) that the landlord or, in the case of joint landlords, at least one of them has given to the tenant a notice [F10 in writing] stating that, after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the dwelling-house is required by virtue of this section; and
(b) that the date specified in the notice under paragraph (a) above is not earlier than the earliest day on which, apart from section 5(1) above, the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the notice under paragraph (a) above.
Previous Court of Appeal decisions (ie Fernandez v McDonald in 2003) have found that if the date on the notice is even one day wrong, the landlord will fail in his claim for possession.
In order to circumvent this harsh rule, most forms now give ‘protective wording’ which effectively says that if the date on the notice is wrong, then it should be … [giving a formula for working it out]. The only problem is that some Judges have said that this should not be allowed as it is unfair to allow a landlord to effectively give two dates.
However hopefully this unhelpful and obstructive attitude will no longer be an option. In the case of Elias v. Spencer a landlord served a notice which said possession should be provided
“After: 22ND NOVEMBER 2008 or, if this notice would otherwise be ineffective, after the date being the earliest date not earlier than two months after the date of service of this notice when shall expire a period of the assured shorthold tenancy”
The last day of the period of the tenancy was 21 November. However the Judge found that the saving words were sufficient to validate the notice and the Court of Appeal dismissed the tenants application for permission to appeal.
So if you are a landlord and have a similar case, you now have something to show a Judge who is minded to be difficult about saving clauses in section 21 notices.
Note: Readers have mentioned that the case of Church Commissioners for England v Meya makes a similar point. I learned of Elias v Spencer through the weekly housing law news service provided by Garden Court Chambers.
Readers should also be aware that Elias is, of course, only a permission decision and so not normally capable of being cited in court (even if we at NL covered it as well!)
True, but if there have been anything in the defendants argument, no doubt the appeal would have been allowed. Which is significant and something which will no doubt be of interest to a Judge when considering a similar point, given the dearth of case law on this point.