Notices under Section 21 of the Housing Act 1988 Timing and prescribed form

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1 Notices under Section 21 of the Housing Act 1988 Timing and prescribed form In this paper I set out the amendments and additions that have been made to section 21 of the Housing Act 1988 by sections of the Deregulation Act This paper addresses the law in force as at 29 February In Spencer v Taylor [2013] EWCA Civ 1600 the Court of Appeal held that the grounds for obtaining possession under subsections 21(1) and (4) are not mutually exclusive. Subsection 21(4) expressly states that it is without prejudice to any right in subsection 21(1). It is therefore possible for a landlord to rely on both. It is against this backdrop that the changes to the section 21 procedure should be read. The timing requirements within the notice subsections 21(1) and (4) It is helpful to consider the exact terms of the statute when considering the timing of notices under section 21. Subsection 21(1) provides: 21 (1) Without prejudice to any right of the landlord under an assured shorthold tenancy to recover possession of the dwelling-house let on the tenancy in accordance with Chapter I above, on or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy, a court shall make an order for possession of the dwelling-house if it is satisfied (a) that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than an assured shorthold periodic tenancy (whether statutory or not); and (b) the landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than two months' notice in writing stating that he requires possession of the dwellinghouse. (2) A notice under paragraph (b) of subsection (1) above may be given before or on the day on which the tenancy comes to an end; and that subsection shall have effect notwithstanding that on the coming to an end of the fixed term tenancy a statutory periodic tenancy arises. In relation to fixed term assured shorthold tenancies subsection 21(1) provides the form of a notice for terminating the tenancy. The notice must give not less than two months notice and it must be in writing. It can come to an end on any date, and there is no requirement that the notice be timed to come to an end on the last day of the tenancy. The court has held that the service of a subsection 21(1)(b) notice was sufficiently clear and unambiguous to operate a break-clause in a tenancy: Aylward v Fawaz (1996) 29 HLR 408 (Court of Appeal). The Court of Appeal also held in Spencer v Taylor [2013] EWCA Civ 1600 that there is nothing to prevent the landlord from serving a notice under subsection 21(1) once the fixed term has expired. Subsection 21(1) therefore remains unaffected by the Deregulation Act

2 In relation to periodic tenancies, the appropriate notice will be pursuant to section 21(4), which provides as follows: 21 (4) Without prejudice to any such right as is referred to in subsection (1) above, a court shall make an order for possession of a dwelling-house let on an assured shorthold tenancy which is a periodic tenancy if the court is satisfied (a) that the landlord or, in the case of joint landlords, at least one of them has given to the tenant a notice in writing stating that, after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the dwelling-house is required by virtue of this section; and (b) that the date specified in the notice under paragraph (a) above is not earlier than the earliest day on which, apart from section 5(1) above, the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the notice under paragraph (a) above. (4ZA) In the case of a dwelling-house in England, subsection (4)(a) above has effect with the omission of the requirement for the date specified in the notice to be the last day of a period of the tenancy. Subsection 21(4) itself remains unaltered by the Deregulation Act 2015; however, subsection 21(4ZA) has been inserted by section 35 of the Deregulation Act It can be noted that the amendment only applies to dwelling-houses in England. Prior to the Deregulation Act 2015 the timing of service of notices under subsection 21(4) in relation to periodic tenancies caused landlords a significant level of difficulty. It was common to see notices that gave an incorrect date and/or failed to include saving words. The formulation that was adopted in well-drafted subsection 21(4) notices was to require that possession be given up After the day of which a complete period of your tenancy expires next after the end of two months from the service of this notice. Subsection 21(4ZA) now makes service of notices under subsection 21(4) more straightforward. A reworking of section 21(4), taking into account subsection 21(ZA), is as follows: (a) that the landlord or, in the case of joint landlords, at least one of them has given to the tenant a notice in writing stating that, after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the dwelling-house is required by virtue of this section; and (b) that the date specified in the notice under paragraph (a) above is not earlier than the earliest day on which, apart from section 5(1) above, the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the notice under paragraph (a) above. The requirement is therefore that two months notice in writing is given (as with a subsection 21(1) notice) and that the date specified in the notice falls after the earliest date that the tenancy could have been brought to an end by a notice to quit, but that date does not have to be the last day of the period of the tenancy. A comparison can be made to the timing requirements in section 25(3) of the Landlord and Tenant Act 1954 in relation to business tenancies. Provided that the date given in the notice to quit is either the last day of a period of the tenancy at common law or a later date, the notice will have effect. This amendment should make it far simpler for landlords to serve a valid notice under subsection 21(4). 2

3 The timing requirements in relation to service of the notice and proceedings Section 36 of the Deregulation Act 2015 has introduced additional timing requirements on the service of notices. These requirements apply to notices given under both subsection 21(1) and (4). The first set of requirements applies in relation to the earliest date that a notice can be given: 21 (4B) A notice under subsection (1) or (4) may not be given in relation to an assured shorthold tenancy of a dwelling-house in England (a) in the case of a tenancy which is not a replacement tenancy, within the period of four months beginning with the day on which the tenancy began, and (b) in the case of a replacement tenancy, within the period of four months beginning with the day on which the original tenancy began. (4C) Subsection (4B) does not apply where the tenancy has arisen due to section 5(2). Section 5(2) is the provision which causes a periodic tenancy to come into effect by operation of law at the end of the term of a fixed term assured shorthold tenancy. Subsection 21(4B) does not apply in those cases. A replacement tenancy is defined in subsection 21(7) as being a tenancy which comes into being on the coming to an end of an assured shorthold tenancy and (a) the landlord and tenant are the same as under the earlier tenancy, and (b) the premises let are the same or substantially the same as those let under the earlier tenancy. The new subsection 21(4B) requires that a notice cannot be given during the first 4 months of a tenancy or the original tenancy. This will therefore change the current practice which is adopted by many landlords and estate agents of serving a section 21 notice on the date that the tenancy commences, or shortly thereafter (especially in light of the changes that have also been introduced in subsection 21(4D) see below). The second set of requirements concern the latest date on which proceedings for possession may be commenced: 21 (4D) Subject to subsection (4E), proceedings for an order for possession under this section in relation to a dwelling-house in England may not be begun after the end of the period of six months beginning with the date on which the notice was given under subsection (1) or (4). (4E) Where (a) a notice under subsection (4) has been given in relation to a dwelling-house in England, and (b) paragraph (b) of that subsection requires the date specified in the notice to be more than two months after the date the notice was given, proceedings for an order for possession under this section may not be begun after the end of the period of four months beginning with the date specified in the notice. These are new restrictions on when a claim can be issued in relation to dwelling-houses in England. The restriction in subsection 21(4D) while being prescriptive is readily understandably; proceedings cannot be commenced more than 6 months after the date on which a section 21 notice was given. This applies to notices under both subsections 21(1) and (4). 3

4 As noted above, this provision in conjunction with subsection 21(4B) will most likely stop the practice of section 21 notices being given at the outset of a tenancy. Most assured shorthold tenancies are granted for periods of 12 months with a 6 month break clause. If a notice cannot be given in the first 4 months of the tenancy (subsection 21(4B)) and must then be at least 2 months in duration (subsections 21(1) and (4)), a period of 6 months will have expired since the beginning of the tenancy before any section 21 notice can come to an end. Any section 21 notice given at the outset of the tenancy, or prior to the first day of the tenancy, will then have been served more than 6 months before possession could be sought and therefore cannot be relied on for the purposes of proceedings (pursuant to subsection 21(4D)). Section 21 notices served at the outset of the assured shorthold tenancy would therefore have no effect, or at least could not be relied on in possession proceedings which leads to much the same result. Subsection 21(4E) is a slightly convoluted provision which applies only in relation to notices under subsection 21(4); i.e. periodic tenancies. Even then it does not apply to all periodic tenancies. Subsection 21(4E)(b) refers back to section 21(4)(b). Section 21(4)(b) requires that the notice not specify a date earlier than the earliest date on which, apart from section 5(1), the tenancy could be brought to an end by a notice to quit. So the question is whether at common law a notice period of more than 2 months had to be given. In practical terms this will affect very few tenancies; for example quarterly periodic tenancies or biannual periodic tenancies. In the case of periodic tenancies where more than two months notice would have been given at common law, the proceedings for possession may not be begun more than 4 months after the date specified in the notice as a result of subsection 21(4E). This position appears to be clear on the face of the statute; however, the prescribed form (set out below) does not follow this interpretation or reasoning. Issues may therefore arise in relation to weekly or monthly periodic assured shorthold tenancies (see below). Other time limits on notices While it is often overlooked it is worth noting that sections 21(1A) and (1B) provide that where the assured shorthold tenancy is for a fixed term of not less than 2 years and the landlord is a private registered provider of social housing, the landlord has to give not less than 6 months notice in writing stating that the landlord does not propose to grant another tenancy on the expiry of the fixed term tenancy and informing the tenant of how to obtain help or advice. This remains unaffected by the Deregulation Act Prescribed form Subsections 21(8) and (9) were added to section 21 by section 37 of the Deregulation Act 2015: (8) The Secretary of State may by regulations made by statutory instrument prescribe the form of a notice under subsection (1) or (4) given in relation to an assured shorthold tenancy of a dwelling-house in England. (9) A statutory instrument containing regulations made under subsection (8) is subject to annulment in pursuance of a resolution of either House of Parliament. In pursuance of sections 21(8) and (9) the Secretary of State has prescribed a form for section 21 notices which is Form 6A of the Assured Tenancies and Agricultural Occupancies (Forms)(England) Regulations 2015 (SI 2015/620). 4

5 A copy of Form 6A is annexed to this paper. The prescribed form does give rise to an issue. Section 3 of Form 6A states: If you have a fixed term AST, this notice is only valid for six months from the date of issue. If you have a rolling or periodic tenancy, e.g. you rent the property on a week by week or month by month basis, this notice is only valid for four months from the date of issue. This summary of the legislation set out in subsections 21(D) and (E) does not appear to be accurate. On my analysis, set out above, any section 21(4) notice will be valid for 6 months, unless it is a periodic tenancy with a period greater than 2 months. Subsection 21(E) does not appear to apply to all periodic tenancies, but the prescribed form suggests that it does. In my view the statute sets out the law and will trump the prescribed form. This may practically make little difference: a landlord can be sure that his section 21 notice is valid if he issues proceedings within 4 months and the argument will not arise. However, the situation that will be more difficult will be if a landlord has a section 21(4) notice in respect of a monthly tenancy which was given, say, 5 months ago. The landlord may not have approached his solicitors or taken steps to issue proceedings before 5 months, or until just before the 6 month expiration. When at Court a tenant might rely on the prescribed form to argue that the proceedings have been brought too late (i.e. after 4 months). In my opinion the landlord would win on the basis of the statute, but of course the court proceedings will have added additional cost and time. Once again a measure designed to simply the process for landlords and tenants, by having one prescribed form for all section 21 notices, may have complicated the position by misstating the law. Louisa Nye Landmark Chambers 5

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