Here is a question for the blog clinic from Dave
I read your article from March 2010 regarding saving clauses on a section 21(4)(a) notice.
Would you know if there has been established any effective saving clause for a section 21(1)(b) notice, with or without acompanying date specified. Obviously the s21(4)(a) wording can not be used in its entirity as there is no need for reference to the last day of a tenancy period in a 21(1)(b).
Technically, there is no need for any date to be mentioned, but I’m not going to risk that :)
I think the fact that it is confirmed that a saving clause is OK for s21(4) also means it is OK for 21(1). It would be pretty odd if it didn’t. How could they justify different rules for different subsections regarding the same notice?
Note that on Landlord Law we have a composite section 21 notice which covers both s21(1) and (4) together with a composite saving clause,which has worked very well for quite a few years now.
*****
If YOU have a problem, why not put it to the blog clinic? However there are a lot of questions submitted, so if you need an answer quickly remember that members of my Landlord Law service can ask me questions in the members forum area, and will normally get an answer with 24 hours.
Whilst I would agree it may be possible to have a saving clause on a fixed term notice, one would have to be careful not to invalidate the notice for uncertainty. For example, and I have seen this argued by judges on the periodic version, what if there are two possible working dates? The point in the periodic version is that there is only one day in the month (for a monthly rental) that the notice can expire. Therefore, if this is wrong, one is providing an alternative. With the fixed term notice the notice can end on any day in the month provided it is not before the fixed term, therefore the wording of the savings clause may need to be different.
Another point is that since the section 21(4) notice has an ambiguity caused by the drafting of section 5 (making it go statutory periodic, ie do the periods of the tenancy relate only to the length or to the start and end of the period as well) what ever date you choose there is the danger of the tenant arguing the opposite and getting the agreement of the judge. This has not yet been the point of argument in any court of record case so the savings clause protects.) As the section 21(1) has no such ambiguity there is less need for the savings clause.
I would agree that the savings clause typically used in the periodic version of the notice is of no use as there are no “periods of the tenancy” (it is not periodic) and could actually invalidate the notice if this was a different date due to the uncertainty caused.
The section 21(1) rules are fairly simple, has to be 2 months and should not expire before the end of the fixed term. If in doubt, use an online system to calculate the date.
Where I have seen problems is with agent using software that has just put in the end date of the fixed term with no calculation. I saw one this week where the date quoted was 8 months before the date the notice was served! There is little excuse for not reading the notice and checking if what is says is sensible, even if you don’t know all the rules!