These articles gives a general overview only and the legal position at the time of writing them. It cannot be relied upon in any particular case. Specific legal advice must always be considered to include consideration as to whether the legal position contained in this article has changed since going to print.
Assured Shorthold Periodic Tenancy – Landlords Beware of Invalid Notices
In the climate of buy to let, landlords must be aware that a simple mistake in giving notice to recover possession of the property the tenant can cost the landlord not only financially but also delay in his obtaining possession.
The Court is obliged to grant a possession order, if the landlord can show that he has served a written notice complying with Section 21(4) of the Housing Act 1996 (“The Act”)
Whilst there is no prescribed form for the notice, landlords must ensure that it complies with certain statutory requirements. In particular, it must specify the date after which the tenant is to give up possession. This date is the last day of the period of the tenancy. That date must also not be earlier than two months after the date the notice was given. Furthermore it must not be earlier than the earliest date on which the tenancy could have been brought to an end by notice to quit. For example if it is a quarterly period tenancy, then one quarter's notice must be given.
In a case, the tenant was in possession under an assured shorthold tenancy. After the term of his tenancy had expired, the tenant remained in the property – as statuary periodic tenant. The periodic tenancy ran from the 4th of each month to the 3rd of the following month.
The landlord served a notice pursuant to Section 21(4) and commenced proceedings in the Court for recovery of possessions of the property. The tenant challenged the claim on the grounds that the notice was invalid because the date provided after which possession was to be given was incorrect. The landlord sought to argue that the notice was valid relying on common law notice to quit where it can be expected to expire either on the first or the last day of the period of tenancy.
The Court of Appeal rejected that argument and held that the Act was clear in that the last day of the period of the tenancy must be specified and therefore the landlord's argument failed.
The landlord also sought to rely on a House of Lords Authority where the Lords had held that a notice is valid – even if it contained an error – where it is sufficiently clear and unambiguous so as to leave a reasonable recipient in no doubt as to when and how it was intended to operate. The Court of Appeal also rejected that argument because the notice did not comply with the statutory requirements and the Act being clear as to the date to be provided in the notice.
Warning to the Landlords: It is vital that the correct date is provided when giving notice pursuant to Section 21(4), otherwise their claim will be dismissed. If in doubt landlords should seek legal advice.
This article gives a general overview only and the legal position at the time of writing this article. It cannot be relied upon in any particular case. Specific legal advice must always be considered to include consideration as to whether the legal position contained in this article has changed since going to print. For further information and advice, please contact Marianne Johns on 0800 135 7917 or alternatively by email on Marianne.Johns@lemon-co.co.uk.
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<p><strong><a href="http://www.lemon-co.co.uk/article_periodic-tenancy.php">Assured Shorthold Periodic Tenancy – Landlords Beware of Invalid Notices</a></strong><br />
In the climate of buy to let, landlords must be aware that a simple mistake in giving notice to recover possession of the property the tenant can cost the landlord not only financially but also delay in his obtaining possession....</p>
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