Notice requiring possession under section 21

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.

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 a period 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’s contention 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.

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.

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