Saving clauses in possession notices
Keen eyed readers may have noticed that last week I made a mistake (its been corrected now). Quite by error (I was a bit tired when I wrote it) I gave the date to go in the notice as the 5th of the month rather than the 4th. Had that been a notice it would have been invalid
It is frighteningly easy to do this, and it can happen to anyone. In fact the more experienced you are, the more likely you are perhaps to have that momentary loss of concentration when the mistake is made. We are all human.
However in a court claim for possession based on section 21 the Judges will be unforgiving. They take the view that depriving someone of their home is a very serious matter and will refuse to do it unless the landlord’s paperwork is perfect. So it is ESSENTIAL that mistakes are not made. How can a landlord protect himself against error?
The answer is to include a saving clause in your notice. This is wording which says, effectively, that if the date on the notice is wrong, then the expiry date will be a date which is worked out like this – and then you say how it is to be worked out.
Problems with the Judges
For a long time there was a lot of uncertainty about Judges reactions to saving clauses. Despite the fact that they have been standard in Notices to Quit for decades, for some reason some Judges took exception to them in section 21 notices, saying that it was unfair for landlords to have ‘two bites at the cherry’.
So this made it a bit of a lottery. If you made a mistake in Xborough County Court, Mr District Judge A would let you use the clause, but if you made your mistake in a case coming before Mr District Judge B in Yborough County Court your claim would be chucked out. Not fair.
Judges could not refuse to accept saving clauses at all, as in Lower Street Properties v. Jones in 1996 the Court of Appeal said a notice with a saving clause but no actual expiry date would be valid (a ‘no date’ notice).
So then we had the situation where Judges could not refuse to accept a notice with a saving clause but no actual expiry date, but some were saying that a notice with a saving clause AND and expiry date could be thrown out.
This led to the ridiculous practice of people serving no date notices simply because the courts could not throw them out, even though this is the most confusing sort of notice for a tenant to receive.
Elias v. Spencer
So we were all very relieved when in a case in 2010 called Elias v. Spencer, the Court of Appeal refused to allow a tenant to appeal the Judges decision to accept a section 21 notice which had both an expiry date and a saving clause, on the basis that it had no chance of success.
So now if a Judge tries to dismiss a possession claim on the basis that the saving clause cannot be used, you can cite Elias v. Spencer.
All notices should now include a saving clause
In view of the Elias v. Spencer case, I now consider that all section 21 notices should include a saving clause as a matter of course. Indeed I think anyone acting on behalf of a client or customer who serves a notice without one is being negligent. When it is so easy to provide protection against making a mistake, there is no excuse for not doing this.
For example I have a letting agent client whose notices are prepared by a software system which works out the correct dates for their notices. The notice in the system does not include a saving clause. Mostly the notices are correct but there was one occasion when the notice was out by several days due to an error inputting the information (or maybe the dates had changed for some reason).
So in that case his landlord had to wait a further two months before we could issue proceedings for possession while a second notice was served and we waited for the end of the notice period. Its the old rule with computers – garbage in and garbage out.
Don’t risk it. Always use a saving clause in your notice.
Tessa, you might confirm that when you say “all” section 21 notice you are presumably only talking of periodic ones? After all a fixed term tenancy does not run on periods in the same way and introducing a saving clause can actually cause confusion.
We routinely come across problems with judges and savings clauses, including judges wanting specific wording. For example, earlier this year a judge said the notice was not valid as the savings clause did not start with the words “if later”. Ie the saving clause could only work if the date from the savings clause was later than the date quoted and in our client’s case it would have been earlier (making the notice invalid if it had said “if later”!)
The preferred wording used “if this would otherwise make the notice invalid”. This is because if you quote a valid date and give a saving clause to a different valid date, the judge may throw out the notice for uncertainty, ie which date did they have to go? This is the same danger of putting the saving clause in the fixed term version. The notice served on a fixed term tenant can end on any day in the month so there is less danger of quoting an invalid date. It simple has to be at least 2 months and should not be a date earlier than the end of the fixed term. It may expire when the tenant is periodic but provided it was served on a fixed term tenant it does not have to follow the periods of the tenancy. I guess you could draft a different saving clause for such a notice but reader would need to understand that the different uses of the notice would need different saving clauses as they have rules to follow.
McDonald v Fernandez contains positive comments about savings clauses and the Church Commissioners V Meya was essentially won on the saving clause and not the quoted date. It is always useful to have an array of cases to show a judge if they doubt.
When we produced the wizard for the Lettings Toolbox web site section 21 wizard I was amazed how difficult it was to get software to do the calculations and also surprised to find that most of the software in the market merges landlord and tenant data into the notice but leave the user to work out the date!
The last reason for the savings clause is that if the rent periods have been moved you will be totally at the mercy of the judge about how he reads section 5 of the Housing Act 1988 regarding the periods. Meya argued about the length of the periods but not the start and finish specifically. Therefore we do not yet have a court of record judgement to rely on so the saving clause is indeed, exactly as you say, essential in the periodic version of the notice.
Hi David, thanks for your comment.
I have a composite s21 notice which can be used for both fixed and periodic terms, which I have used for quite a few years with no problems. It is very clear and follows the wording of the act closely so there is less for the Judges to object to. It is quite long though and is contained in several bullet points rather than just a couple of sentances.
The whole s21 drafting thing is a total nightmare though and has caused landlords huge frustration down the years.