Section 21 notice - date to expire?

[Wickerman]

I would normally use the search facility (and then post anyway after having several hundred posts to wade through), but it is not working at the moment (tried with two different browsers - IE and Firefox, no result when clicking on either search link) so I will be posting anyway!

I have a S21 notice to serve on 4 tenants. I would like them to expire on the same dates but they have different "period" dates on the tenancy - some running from 15th to 14th, some from beginning of month to end.

All are on Periodic Tenancies.

I have looked at the RLA's website and their S21 notices. Having determined that I need to use the Section 21 (1)(B) form, I notice that it states:


2. The expiry date of the notice cannot be earlier than:

(a) where notice is given during, on or before the ending of a fixed term tenancy the date when the fixed terms ends:
or
(b) where notice is given during the subsistence of a periodic tenancy, the date which is the last day of a period of the tenancy and is a date upon which (apart from the security provided by Section 5 (1) of the Act) the tenancy could be brought to an end by a notice to quit given on the same date as this notice:

and
(c) in either case not earlier than two months after the date when the notice is given

From the highlighed section above, would I be OK making the notice expire at the end of the month, even when "the period" for that tenant runs up to the middle of the month? It is not totally clear (at least to me!) from the above text.

Any help as always appreciated.

[P.Pilcher]

I don't think you can. When a S21 notice is served during a statutory periodic tenancy as you are, it must end AFTER the day in the month before the day on which the next rent period starts. So, if your original (monthly) AST came into effect on the 14th of the month, then your S21 must expire AFTER the 13th. of the month (giving the tenant two or more month's notice of course). If the tenancy came into effect on the 20th., then the notice should be dated the 19th. and so on.
However, I may be wrong - check for a reply from a board expert.

P.P.

[Energise]

would I be OK making the notice expire at the end of the month, even when "the period" for that tenant runs up to the middle of the month? It is not totally clear (at least to me!) from the above text.

Any help as always appreciated.

Absolutley No:

"Where s21(4) applies the notice must satisfy the following conditions:
A date must be specified in the notice.

The notice must state that "possession of the dwelling house is required by virtue of s21" after the date specified.

The date must be the last day of a period of the tenancy (Where the tenancy is a statutory periodic tenancy s5(3)(d) provides that it is one under which the periods of the tenancy are the same as those for which rent was last payable under the fixed term tenancy).

The date specified must be "not earlier than two months after the date the notice was given".

The date specified must not be earlier than the earliest day on which the tenancy could have been brought to an end by a notice to quit given by the landlord on the same date if it were an ordinary contractual tenancy.


Last day of period of the tenancy

The requirement that the notice must expire on the last day of a period of the tenancy is a strict one: McDonald v Fernandez [2003] EWCA Civ 1219. The facts of this case provide a good example of the strict requirements of the section:
Example: The tenants were in occupation under a statutory periodic tenancy that ran from 4th of each month to the 3rd of each month. This meant that the notice needed to specify an expiry date that was the 3rd of the month. The landlord purported to serve a notice under s21(4) on 24 October 2002. The date specified in the notice should therefore have been 3 January 2003. However, the date given was 4 January 2003. That one day (too many!) was fatal."

[P.Pilcher]

No it doesn't provided that you have proof that the notice was served more than the necessary two months before the expiry date.

P.P.