Occasionally the law will throw up a situation that, although it is technically correct, can cause chaos in practice. The Civil Procedure Rules allow courts a degree of discretion, but not when a rule is mandatory or a piece of legislation is framed in such a way that it has to be followed to the letter.
One example of this is
the provisions of the Housing Act 1988 regarding
Assured Shorthold Tenancies (ASTs) and covering the
eviction of tenants, where many landlords and agents
have fallen over. Basically, it's all because of one
little word - AFTER.
The rental market in the UK has enjoyed a sustained period of stability thanks to the introduction of Assured Shorthold Tenancies (ASTs). These provide a minimum letting period for the tenant of six months with the ability for the landlord to evict the tenant after that period without giving a reason, such as rent arrears or misbehaviour, provided certain detailed rules are followed.
Among others, these require a minimum of two month's notice for possession being given to the tenant. This is fairly straightforward where the notice is served during the contractual period of the tenancy - the Fixed Term.
When the fixed term ends tenancies automatically become Periodic Tenancies unless a further fixed term is agreed between the parties and a new agreement signed (the period being determined by the rent payment times - e.g. monthly if the rent is paid monthly)
It is notices served after the fixed term has come to an end when the tenancy becomes periodic where it all appears to be going horribly wrong.
Section 21 Notices to Quit - Fixed Term and Periodic Tenancy Notices
Section 21(1)b and Section 21(4)a
The Chairman of the
London Association of District Judges says 7 out of
10 of these notices are being thrown out of court
because they are wrong.
This of course is very frustrating (and expensive if rent is owning) for landlords / agents as the whole process must then be started again giving a minimum 2 months' notice, which in practice may be nearer three months needed to comply with the exact dates.
If Landlords / Agents are to effectively serve valid notices extreme care is needed to get the dates right, otherwise it will pay you to use a solicitor to do this job for you.
The date on which the notice requires possession to be given must be at least 2 months after it was served. The Fixed Term Notice (Section 21(1)b) can be served at any time during the fixed term (from just after the agreement is signed up to and including the last day of the fixed term) but must not require possession during the fixed term.
In the case of the Periodic Notice (Section 21(4)a) the notice given must be a minimum of 2 months, ending on the last day of a tenancy period (the date before the rent day) specifying that possession is required AFTER that day.
If the tenancy agreement provides for notice to end it, this notice must also comply with that notice.
So, for example, if the rent for a 6 month AST is paid on a calendar month basis (most are) commencing 4th June 2006, the rent period is 4th June to 3rd July.
After 6 months the tenancy becomes periodic - 4th December 2006 - without further action from either party.
If today (11th July 2007) we wish to serve notice on this tenant we use a Periodic Notice (Section 21(4)a) with a notice date of 3rd October 2007. The notice should specify that possession is required AFTER this date.
Therefore, in order to give 2 clear months' notice on this periodic tenant we need to actually give 12 weeks notice (11th July to 3rd October).
To be valid the notice must to make it clear to the tenant that possession is required AFTER 3rd October 2007.
As a "catch all" safety net the Free LandlordZONE Section 21 Notice (see: Agreements and Notices) has the following phrase:
"...the landlord requires possession after the date stated in this notice or at the end of the period of your tenancy which will end next after the expiration of 2 months from the service upon you of this notice"
This latter phrase has been held to be effective on appeal (Lower Street Properties v Jones (1966) but many judges are not aware of this, so be prepared to point it out.
Serving Notices: You can serve a Section 21 Notice in person or by post. Courts will recognise postal service - the date of postage and the day the letter would normally arrive. You should send by registered post or recorded delivery and allow a minimum of 3 working days for the notice to arrive.
Proceedings: Before you can start possession
proceedings you must wait until the notice has expired -
the date you have given in the notice. You will need to
obtain the appropriate forms from your local county
court, or the Court Service Website -
Court Service website
- N5 and N119
Note: never rely totally on these standard answers. Before taking action or not, always seek professional advice with the full facts of the case and all documents to hand. LandlordZONE.co.uk