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Landlords, tenants and section 21 notices

One of the major types of possession claims brought by private landlords is under the Accelerated route. Prior to a recent Court of Appeal decision in Spencer v Taylor [2013], the ‘accelerated’ label was always something of a misnomer.

Serving the correct notice under section 21 Housing Act 1988 was a complicated process and depending on whether the tenancy was in the fixed term or periodic, different notices applied, leading to errors and inevitably, technical defences (a Court has no discretion to remedy a defect in a s21 notice and must therefore strike the claim out).

In my experience, landlords came unstuck when a tenant’s fixed term had ended and they were in a weekly or monthly periodic tenancy. This required using a s21(4)(a) notice, which needed to give 2 clear months notice (note the use of the word ‘clear’) and require possession after the last day of a period of the tenancy (eg say a period was from 20th of a month to the 19th of the following month, possession would need to be ‘required after the 19th [month]‘.

Defences were usually raised on the basis of the 2 clear months point or the incorrect use of dates. This was chipped away at slightly by the use of ‘saving provisions’ eg ‘or if not valid, after the end of a period of the tenancy two months from service of this notice’. On the whole private landlords would not always take legal advice and miss out on these key issues.

In his judgment LJ Lewison decided that s21(1)(b) notices could also be used during a periodic term, as long as a fixed term had at some point been in existence (the overwhelming majority of AST’s are granted for a fixed term initially).

S21(1)(b) simply requires that two calendar months notice has been given. Nothing in s21(1) specifies that the notice is only applicable to a fixed term tenancy or cannot be given during a periodic tenancy.

In this case because two months notice had been given, despite the use of a s21(1)(b) notice, the possession claim was upheld.

In one stroke LJ Lewison has made a section of the Housing Act 1988 redundant. There will have to be some form of challenge to this decision or change in legislation at some point in the future in order to remedy this position. It is difficult to see the newly optional nature of s21(4)(a) being the status quo for any length of time.

In the meantime however landlords will be able to take advantage of the less onerous s21(1)(b) notice to take possession of properties.

They will still need to have shown compliance with the requirements of a tenancy deposit scheme but tenants from a wide variety of backgrounds have been left looking a whole lot more vulnerable as shorthold tenants as a result of this judgment.

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