An interesting case, in Harrogate County Court, examined the use of a section 21 notice when an assured shorthold tenancy is periodic.
On the ending of the fixed term of an assured shorthold tenancy, section 5 of the Housing Act 1988 creates a periodic tenancy unless the landlord or tenant end the contract. If the landlord serves notice during the fixed term of the contract, the notice would be a notice served under section 21(1) of the Act - that is to say, section 21(1) of the Housing Act 1988 prescribes the legal procedure required for the service of such notices . However, once the tenancy is periodic the notice needs to be served under section 21(4) and this has slightly different notice requirements.
Notices under Section 21(4) must meet the following requirements:
* at least 2 months in length (but could be longer if the rental periods are longer than monthly)
* in writing
* expire the last day of a period of the tenancy.
However the notice is not a prescribed form, unlike the section 8 notice used for rent arrears. However, the Act does include an additional requirement in its wording and it was this that caught the landlord out.
Section 21(4) reads as follows:
21(4) Without prejudice to any such right as is referred to in subsection (1) above, a court shall make an order for possession of a dwelling house let on an assured shorthold tenancy which is a periodic tenancy if the court is satisfied;
(a) that the landlord or, in the case of joint landlords, at least one of them has given to the tenant a notice in writing
stating that, after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the dwelling house is required by virtue of this section; and
(b) that the date specified in the notice under paragraph (a) above is not earlier than the earliest day on which, apart from section 5(1) above, the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the notice under paragraph (a) above.
The notice the landlord served failed because it did not refer to requiring possession by virtue of section 21 of the Act and the court held this to be fatal to the notice. The last two lines of Section21(4)a is the part of interest as it requires the notice served to state that "possession is required by virtue of this section" of the act.
Without including anywhere on the notice that the notice was related to section 21 of the Act, the notice was considered defective and the landlord would have to serve another valid notice and start over again.
It is interesting to note the section 21(1) for fixed term tenancies does not make the same requirement, however, caution would say that including reference to section 21 of the Housing Act 1988 on the fixed term notice would be wise.
Case ref Adamson v Mather, Harrogate County Court 24 September 2004
Article supplied by The Letting Centre