On 9th December the Court of Appeal’s decision in Spencer v Taylor  EWCA Civ 1600 upset what many commentators had regarded as a settled area of law relating to the service of notices under s.21 of the Housing Act 1988.
The brief facts are that on 6th February 2006 S granted T an assured shorthold tenancy for a fixed term of 6 months, rent being paid weekly on the Monday of each week. At the end of the fixed term T held-over in possession as a statutory periodic tenant; the period of the tenancy being Monday to Sunday. On 18th October 2011 S served on T notice in accordance with s.21(4)(a) of the 1988 Act to expire on 1st January 2012 (a Saturday).
The orthodox view of the s.21 regime previously informed us that where notice was served during the fixed term of the tenancy s.21(1)(b) of the 1988 Act applied so that written notice need not be in any prescribed form and need give only two months notice expiring on any date - even a date after a statutory periodic tenancy had arisen. Where notice was given after the commencement of the statutory periodic tenancy (as in this case) it was necessary to comply with the provisions of s.21(4)(a) of the 1988 Act so that possession was required at least two months after the last day of a period of the tenancy. Applying those criteria S’s notice was defective. Not so according to Lord Justice Lewison.
S.21(2) of the 1988 Act provides that a notice under s.21(1)(b) “may be given before or on the day on which the tenancy comes to an end”. After a careful analysis His Lordship concluded that the language of the sub-section was permissive such that it did not preclude service of notice under s.21(1)(b) after the expiry of the fixed term. This is a significant departure from the law as previously expressed in cases such as Fernandez v MacDonald  EWCA Civ 1219 and Lower Street Properties v Jones  28 HLR 877 which have, until now, been viewed as requiring s.21(4)(a) to be complied with to validly determine a periodic tenancy arising after the expiration of the fixed term.
S’s notice also included a saving provision in a form compliant with the decision of Lower Street Properties. T argued that this rendered it defective because it gave more than one date on which possession was required - the fixed date and the date ascertainable by reference to the formula. In dismissing T’s argument Lewison LJ went on to review the decisions in Fernandez, together with Hussain v Bradford Community Housing Limited  EWCA Civ 763 and to consider how the various provisions of s.21 operate. He concluded that if the reasonable reader of a notice would understand that one date is the primary date and the other date is a fall back, in this case by reference to the notes accompanying the notice, the fact that there were two dates would be no reason hold the notice to be invalid.
All in all this decision will render many defences to possession based on a technical defect in a s.21 Notices a thing of the past - no doubt freeing up significant amounts of court time. It seems now that so long as the tenancy was at its commencement granted for a fixed term, merely giving two months notice in writing will suffice to bring the tenancy to an end even if it has subsequently become periodic. On Lewison LJ’s analysis the regime imposed under s.21(4) of the Act is reserved for those (few) tenancies which were periodic from the outset.
The decision is however out of kilter with previous jurisprudence of the Court of Appeal and perhaps a prudent L&T lawyer will watch this space for developments.
Erol Topal / 1st Dec 2013
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