Quick Possession

Do you have a tenant you want to evict? Is your tenant in rent arrears? Is it becoming easier for Landlords to recover possession of their properties from Tenants? 

Background 

One of the key routes for obtaining possession is by serving a Section 21 Notice. Landlords do not need to provide a reason for wanting the return of the property, so do not need to wait until the tenant had failed to pay rent for several months. A possession order is granted by the Court so long as the Section 21 Notice is valid under the terms of s21 of the Housing Act 1988. 

There are currently two types of Section 21 Notices that can be served: 
1) S21 (1) Notice served during the fixed term of the tenancy – giving the Tenant at least 2 months’ notice to expire no sooner than the last day of the fixed term. 
2) S21 (4) Notice served after the end of the fixed term - giving at least 2 months notice to expire after the last day of a period of the tenancy. It is this notice that gives Landlords the most problems. 

Spencer v Taylor (2013 – Court of Appeal) 

A weekly periodic tenancy arose after the end of the fixed term as rent was due weekly under the Assured Shorthold Tenancy Agreement. A Section 21 Notice was served requiring possession on a date that was not the last day of a period of the tenancy. The Notice incorrectly quoted the saving formula as “at the end of your period of tenancy which will end next after the expiration of two months from the service upon you of this notice”. In effect, this gave two conflicting dates of expiry. 

The Court of Appeal decided that, so long as the tenancy began as a fixed term tenancy, a s21 (1) notice could be served and would be valid. Therefore there was no need for the Notice to expire on the last day of a period of the tenancy. 

The Court also decided that a Notice would not necessarily be invalid if two different dates were placed on the Notice (e.g. a date for expiry and the incorrect saving formula). The notice would be valid if it was clear that one was a primary date and the other the fall back position. However, there might be problems if both dates satisfied the requirements of s21 (4) and it was not clear which would take priority. 

Practical Advice 

Spencer v Taylor may be referred to the Supreme Court. If it is, then the above decision may be overturned. Until this occurs, or the tenant decides not to appeal the decision, my advice is for Landlords to continue to ensure that Section 21 Notices are correctly drafted to comply with s21 (4) of the Housing Act. 

All notices drafted on behalf of our clients are drafted in this format. For more information on the above, or Residential Landlord and Tenant disputes in general, please contact Joanne Green on 01332 225232 or joanne.green@smithpartnership.co.uk