Notice requiring possession under section 21

Notice requiring possession (Housing Act 1988 s21) Landlords of assured shorthold tenants who wish to recover possession relying on Housing Act 1988 s21 must give at least two months’ notice
to tenants that possession is required. If landlords comply with this requirement, they are automatically entitled to possession. The court has no power to suspend possession orders, apart from Housing Act 1980

Notice requiring possession (Housing Act 1988 s21) 77 Chapter K Assured shorthold tenancies s89(1), which provides that orders for possession must take effect no later than 14 days after the court order, unless exceptional hardship would be caused. The s21 notice (1) may be given before any fixed term expires or even at the beginning of the tenancy (s21(2)); (2) need not be in any particular form, although it must be in writing (s21(1)(b), s21(4)(a)); and (3) may be given by only one of several joint landlords (s21(1)(b), s21(4)(a)). There is no power to dispense with service of s21 notices.

Court of Appeal Aylward v Fawaz ( 997) 29 HLR 408, CA

Section 21 notice was effective in operating a break clause An assured shorthold tenancy granted for a term of one year from 1 July 1995 included a break clause enabling the landlord to give one month’s notice to determine the tenancy after the expiry of the first six months. On 13 February 1996 the landlord simply served a s21(1)(b) notice requiring possession on 13 April 1996. The Court of Appeal held that that notice was sufficient to determine the tenancy under the terms of the break clause. It was clear and unambiguous and indicated in terms that possession was required. The court rejected the tenant’s contention that a separate notice was necessary to activate the break clause. To require a tenant to give up possession was, in substance, no different from giving him notice of a decision to determine the tenancy.

Barker v Hand[2007] EWCA Ci 8 9; 2 June 2007

Possession order where s21 notice unsigned; permission to appeal refused A landlord served a Housing Act 1988 s21 notice on an assured shorthold tenant. The notice was not signed. The tenant defended subsequent possession proceedings, arguing that because the notice was unsigned, it was invalid. District Judge Shroder found that the notice was valid and made a possession order. HHJ Rubery dismissed an appeal. Sir Henry Brooke, sitting as a judge of the Court of Appeal, refused an application for permission to bring a second appeal on the papers. He stated, ‘This second appeal raises no important point of principle or practice, and in any event the judge’s decision was clearly right.’

Church Commissioners for England v Meya [200 ] EWCA Ci 82 ; [2007] HLR 4; [2007] L&TR ; (200 ) Times 4 July

Whether a statutory periodic tenancy is quarterly or annual is determined by the period for which rent was last payable under the contractual tenancy The Church Commissioners initially granted Ms Meya a two-year fixedterm assured shorthold tenancy. It was subsequently renewed. The last agreement was for a term commencing on 1 January 2004 and expiring on 30 December 2004. The rent was expressed to be ‘a clear yearly rent of £17,680 per annum’. The obligation to pay the rent was expressed to be ‘to pay the rent to the landlords by equal quarterly payments in advance on the usual quarter days (the first such payment or a proportion to be made on the date of this agreement)’. No further tenancy was agreed and on 31 December 2004 Ms Meya became a statutory periodic assured shorthold tenant (Housing Act 1988 s5(2)). On 2 March 2005 the Church Commissioners served a s21(4) notice stating ‘the landlord requires possession of the property after the thirtieth day of May 2005 or at the end of that period of your tenancy which will end after the expiry of two months from the giving of this notice whichever is the later’. A possession claim was issued on 4 July 2005. Ms Meya accepted that, if the landlord only had to give a quarter’s notice requiring possession, the notice was good. However, she claimed that she had an annual tenancy, insufficient notice had been given and that the issue of proceedings was premature. A deputy district judge dismissed the possession claim. The Church Commissioners appealed. The Court of Appeal allowed the appeal. When deciding the period of a statutory periodic tenancy, what matters is the period for which rent was last payable – see Housing Act 1988 s5(3)(d). In this case, the tenancy agreement provided for the rent to be paid by instalments. The last instalment became payable in September 2004 and was payable for a quarterly period. The statutory periodic tenancy was, accordingly, a quarterly tenancy and sufficient notice had been given. (The position would have been different if this had been a common-law tenancy and s5(3)(d) had not applied. As the rent was expressed to be an annual rent, an annual tenancy, not a quarterly tenancy, would have arisen when the tenant held over.)

Fernandez v McDonald [200 ] EWCA Ci 2 9; [2004] WLR 027; [200 ] 4 All ER 0 ; [2004] HLR ; [2004] L&TR ; [200 ] 42 EG 28; (200 ) Times 9 October

Section 21 to be strictly applied; s21(4)(a) notice must specify the last day of aperiod of the tenancy, not the first day. The landlord granted an assured shorthold tenancy for six months from
September 1999 to March 2000. After its expiry, the tenants remained as statutory periodic tenants from the 4th of each month to the 3rd of the following month. On 24 October 2002, the landlord gave them a notice headed ‘Section 21(4)(a) Assured Shorthold Tenancy: Notice Requiring Possession Periodic Tenancy’ stating ‘I give you notice that I require possession
of the dwelling-house known as … on 4th January 2003’. The tenants did not leave and the landlord began possession proceedings. The tenants defended, claiming that the date specified in the notice was not ‘the last day of a period of the tenancy’ in accordance with s21(4)(a). A district judge struck out the tenants’ defence and they appealed unsuccessfully to a circuit judge. The Court of Appeal allowed a second appeal. It rejected the landlord’scontention that s21 should be construed in the same way as the common law rules relating to notices to quit. It might be possible to give a notice to quit that expired on either the first day or the last day of a period of the tenancy, but that was not because there were two last days. It was because the last day ended at midnight and the first day of the new period would begin thereafter. A section 21 notice is not a notice to quit. The niceties of K4 Notice requiring possession (Housing Act 1988 s21) 77 78 Chapter K Assured shorthold tenancies contractual notices to quit should not be imported into the plain words of the statute. Section 21(4)(a) requires the notice to specify the last date of the period. It is not a situation where the legislation permits the form to be substantially to the same effect. The subsection is clear and precise. The notice did not comply with s21(4)(a) and was defective. Note: The outcome would have been different if the notice had included a ‘savings clause’, stating, after the date, ‘or at the end of the period of your tenancy which will end next after the expiration of two months from the service upon you of this notice’.

Gracechurch International v Tribhovan and Abdul (200 ) HLR 2 , CA

Section 21 notice was invalid because it did not expire on the last day of a period of statutory periodic tenancy Landlords granted a tenancy which they claimed was an assured shorthold
tenancy for a term of six months from 12 June 1996. On 26 June 1998 they served a notice requiring possession, purportedly in accordance with Housing Act 1988 s21. A circuit judge dismissed possession proceedings on the basis that the notice was invalid because it did not expire on the last day of a period of the tenancy (see s21(4)). The landlords did not contest that finding.
Simon Brown LJ, while delivering judgment on another issue, described that holding as ‘clearly correct’.

Lower Street Properties v Jones ( 99 ) 28 HLR 877; [ 99 ] 2 EGLR 7, CA

Landlord cannot bring possession proceedings until after s21 notice has expired; no date need be specified in s21 notice provided it can be ascertained On 28 March 1989 an assured shorthold tenancy was granted to Mr van Praag. That tenancy expired by effluxion of time on 27 September 1989. In the years that followed, there were two further fixed-term agreements which purported to create assured shorthold tenancies. The defendant lived with Mr van Praag in the premises. Mr van Praag died in 1992 and whatever tenancy he had vested in the defendant in accordance with Housing Act 1988 s18. The landlord began possession proceedings. However, the claim for possession was dismissed because proceedings were started the day before the s21 notice expired. In the Court of Appeal, Schiemann LJ stated that it is ‘implicit that the landlord cannot bring proceedings until after [the date specified in the notice]’. Kennedy LJ reached his decision on the ground that the notice served stated ‘The landlord cannot apply for such an order before the notice has run out’, and left open whether, with a different wording, proceedings could have been begun before expiry. The occupant had also challenged the s21 notice served on two other grounds, namely that (a) it did not specify the date on which possession was required (the wording used was ‘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’) and (b) although dated, it did not state the date on which it was served. Both these contentions were rejected by the Court of Appeal. No date need be specified in a s21 notice provided that: … the tenant knows or can easily ascertain the date referred to … The word
‘specified’ … means no more than ‘made clear’.

Notting Hill Housing Trust v Roomus [200 ] EWCA Ci 407; [200 ] WLR 7 ; [200 ] L&TR 2 ; [2007] HLR 2

The phrase ‘at the end of your tenancy’ has the same meaning as ‘after the end of your tenancy’ The defendant was granted a periodic assured shorthold tenancy. Notting Hill served a Housing Act 1988 s21 notice which stated ‘Possession is required (by virtue of section 21(4) Housing Act 1988 of [the property] which you hold as tenant at the end of the period of your tenancy which will
end after expiry of two months from the service upon you of this notice’. A possession order was made, but the tenant applied to set it aside on the ground that the s21 notice was invalid because of the use of the word ‘at’ in the phrase ‘at the end of the period’ instead of ‘after’ (s21(4)(a)). District Judge Plaskow found that the words ‘at the end of’ had the same effect as the word ‘after’, and dismissed the application to set aside. The defendant appealed. The Court of Appeal dismissed the appeal. The phrase ‘at the end of the tenancy’ in a notice given pursuant to s21 means ‘after the end of the tenancy’ and so complies with the requirements of s21(4)(a). A request to an audience that they remove all their belongings ‘at the end of the concert’ is not asking them to do something in the split second when the last note is played. It is asking them to do something after the end of the concert. Similarly, to say that soldiers came home ‘at the end of the war’ means that they came home after the war had ended, not the split second when the enemy surrendered.

Singh v Emmanuel ( 997) 74 P&CR D 8, CA

Section 21 notice given three months into three-year term was valid On 6 March 1996 the plaintiff granted the defendant an assured shorthold tenancy for a term of three years. The written agreement provided that ‘the landlord may bring the tenancy to an end at any time … (but not earlier than six months from the commencement date …) by giving to the tenant not less than two months’ written notice stating that the landlord requires possession of the premises’. On 6 June 1996 the landlord gave notice that he required possession on 6 September 1996. The landlord
brought possession proceedings. The tenant argued that the notice was invalid because it was given only three months into the term and so fell foul of the provision in the tenancy agreement allowing termination. A recorder made a possession order. The Court of Appeal dismissed the tenant’s appeal. Sir Patrick Russell stated that he regarded the appeal as ‘basically unarguable’, holding that the landlord had given ‘a perfectly valid notice’. Notice requiring possession (Housing Act 1988 s21) 79 80 Chapter K Assured shorthold tenancies County courts

Dovetail Estates Ltd v Mazrekaj January 200 , Clerkenwell County Court

Claim issued prematurely; saving clause was not effective On 13 May 2004, F Q Sidney & Co granted Mr and Mrs Mazrekaj a joint assured shorthold tenancy of a three-bedroom flat. The tenancy was for a fixed term of six months at a weekly rent, payable on the first day of each week. Mr and Mrs Mazrekaj continued to occupy the flat when the fixed term expired on Friday 12 November 2004. Thereafter, by Housing Act 1988 s5, they occupied the flat under a joint periodic assured shorthold tenancy, which ‘renewed itself’ every Saturday. On 5 September 2005,
Dovetail Estates, who claimed to be successors in title to the original landlords, sent Mr and Mrs Mazrekaj a notice requiring possession of the flat under Housing Act 1988 s21(4)). The tenants received the notice in the post on 9 September 2005. It required them to give possession of the flat ‘on 7th November 2005 or on the day ending on the last day of a period of your tenancy’. 7 November 2005 was a Monday. Possession was not given up and, on 8 November 2005, the claimants began possession proceedings,using the accelerated procedure (CPR 55 Part II). The claimant did not provide proof of its entitlement to possession when it issued the claim. The defendants argued that (1) the earliest date after which they could have been required to give up possession of the flat was Friday 11 November 2005 and that the claim had been issued prematurely (Lower Street Properties Ltd v Jones (K4.6)); and (2) the notice was invalid because
7 November 2005 was not the last day of a period of the tenancy and, applying Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd (N2.3), considered objectively, the saving clause in the notice would not enable a reasonable recipient to ascertain the date after which he or she would be required to give up possession of the flat. In particular, it did not specify a period of notice or a date from which notice was intended to run. District Judge Stary found that (1) the claim was an abuse of the court’s process, having been issued before the requisite notice period had expired; (2) for the reasons advanced by the defendants, the notice was invalid, and (3) in any event, the claimant had not proved its entitlement to possession of the flat. She dismissed the claim and ordered the claimant to pay the defendants’ costs.

Gloucestershire HA v Phelps 0 February 200 , Gloucester County Court

Possession cannot be ordered under s21 within a fixed term (in absence of break clause) The claimant granted the defendant an assured shorthold tenancy on 4 February 2002 for a fixed term of 12 months. It was described as a ‘Starter Tenancy’ and included a clause that it would cease to be an assured shorthold after 12 months conditional on no possession proceedings having been brought. On 4 September 2002, the claimant served a s21 notice but cited rent arrears and anti-social behaviour, although no such behaviour was specified. The claimant brought a possession claim under the accelerated possession procedure. A possession order was made by a district judge without a hearing on 11 December 2002. The tenant appealed successfully because the possession order had become effective before the 12-month fixed-term tenancy had ended. HHJ Hutton stated that s21 specifically provides that possession may be granted only if the assured shorthold tenancy has actually come to an end at the time of the order. In this case it had not come to an end. The application and the possession order were premature. Although anti-social behaviour was raised in the claim, this was irrelevant because this action was not commenced under Housing Act 1988 s8.

Paddington Churches Housing Association v Khan ( ) 2 July 200 ; [2004] CLD 28; (2) 29 October 200 , Willesden County Court

Section 21 notice could be relied on in possession proceedings despite having been served three years earlier The defendant was an assured shorthold tenant. In March 2000 his landlord
served a Housing Act 1988 s21 notice. No possession claim was issued until April 2003. A deputy district judge dismissed the claim for possession, finding that the claimant landlord had waived its right to proceed under the March 2000 notice because it had allowed the defendant to remain in the property for so long after serving the notice. HHJ Copley allowed the landlord’s appeal and made a possession order. There was no statutory basis for the deputy district judge’s decision. He was wrong in law to rule that the s21 notice had expired.

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