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I recently gave a number of presentations to landlords and managing agents entitled “Possession Notices – getting them right”. The presentation provided guidance on how to draft Section 8 and Section 21 Notices together with the effects of tenancy deposit protection and Superstrike on the validity of such notices.
The presentation included a detailed review of Section 21(4) Notices. This included an explanation of when a Section 21(4) Notice can be served and the consideration of tenancy periods that must be taken into account when calculating the correct ‘end date’ of the notice.
I won’t seek to set out here a full review of Section 21(4) Notices other to say that it was established practice that a Section 21(4) Notice must be used when a Section 21 possession notice is to be served after the end of the fixed term of the assured shorthold tenancy. If a Section 21 notice was to be served during the fixed term then you could rely on a Section 21(1) Notice.
Section 21(1) Notice is a lot simpler to use. You do not have to worry about the notice expiring on an exact date and/or using any saving provision. Nor do you have to worry about common law provisions affecting the length of notice (for example, you may need to give at least 6 months notice under a Section 21 (4) Notice).
The common law provisions and calculation of the exact date are not issues I need to address here as halfway through my series of presentations a case was decided in the Court of Appeal which meant that I could, in effect, tear up my notes and completely rewrite the part of the presentation relating to Section 21(4) Notices. The case is entitled Spencer v Taylor. I have not yet had sight of a case report and am relying on information received from the barrister who represented the unsuccessful tenant in the case.
The background of the case is not important although I will provide further information on the case once the report is made available. As I say, I am working on limited information at this time but I understand that there were 2 key decisions made by the Court. The first related to the ‘key date’ and whether the introduction of a second date (under a saving provision) invalidated the notice. Again that is not a real concern for the purposes of this article as it is the second decision which really stands out. The decision didn’t just lead to a re-write of my presentation but, in effect, drove a coach and horses through the way that landlords, agents, lawyers and the Courts have dealt with Section 21 Notices over the past 25 years i.e. since their introduction.
The Court of Appeal stated that where there was originally a fixed term tenancy (which will be the majority of assured shorthold tenancies) then even if a Section 21 Notice is served after the expiry of the fixed term, the landlord can rely on a Section 21(1) Notice. Therefore, provided that not less than 2 clear months notice is given, a Section 21(1) Notice can be relied on at any time. The role of a Section 21(4) Notice then becomes one whereby that notice is to be served where the tenancy was periodic from the start.
Provided a landlord takes into account the effects of Superstrike and has complied with the tenancy deposit provisions (insofar as the deposit has been registered and prescribed information served) then the landlord need not worry about the complexities of drafting a Section 21 (4) Notice. This will result in substantially fewer possession claims being thrown out of Court due to technical errors in notices.
This is indeed good news for landlords, who often become very confused about which Section 21 Notice to serve – Thank you Gareth Archer for once again sharing important information with landlords.
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The judgement on this case has now been published and landlords who are taking a Section 21 to court should take a copy with them Judgment here http://bit.ly/IFapwE
Mary Latham – follow me on Twitter @landlordtweets
As stated many years ago by a much more gifted person than me, “The law is an ass”!
Why can MPs not earn their salaries for once by amending all Notices so that they read along the lines of, “The last day of your tenancy will be ____ and the landlord seeks possession on _____ plus one day. Who is is that tries to complicate life> MPs, Civil and not so civil servants or judges?
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