Making Section 21 Easier
An almost unbelievable decision has been handed down by the Court of Appeal in their decision last week in the case of Spencer v Taylor. This will be very welcome to landlords and letting agents.
In this case a private landlord had entered into a six-month fixed term tenancy which had then become periodic. He then served a s21(4)(a) notice on a tenant as he required possession. The date on the notice was wrong as it did not expire on the last day of a period of the tenancy. The landlord also relied on the saving provision approved by the Court of Appeal in Lower Street Properties v Jones. The tenant appealed the validity of the notice on the basis that the combination of the date and the saving provision made the notice uncertain and the case came before the Court of Appeal.
The Court dismissed the primary area of appeal and confirmed again that a date coupled with a saving provision, even if the date is wrong, is acceptable on a s21(4)(a) notice. However, what was interesting, and very surprising, is that they also said that the original date on the notice was in fact valid under s21(1)(b).
No, it is not April! I had to check! The decision on which notice to serve, s21(1)(b) or s21(4)(a) is usually made by looking at s21(2). However,me reading that is usually adopted is that this sub-section prescribes which notice is correct. The Court of Appeal disagreed. They said that s21(2) was permissive rather than prohibitive. In other words it allows the service of an s21(1)(b) notice in specific cases rather than requiring it. The wording of s21(1) itself merely required that the fixed term tenancy had ended.
What this Means
Well, most crucially it means that a standard s21(1)(b) notice can be served at any time provided that there has at some stage been a fixed term tenancy. An s21(4)(a) notice now seems to be solely for use in cases where the tenancy has been periodic from the start. Therefore it will be applicable in relatively few cases. However, the way the judgement was constructed means that in many cases a s21(1)(b) notice or an s21(4)(a) notice can both be used.
The more practical upshot is that the entire process just became a great deal easier. S21(1)(b) notices merely have to give two months notice in writing. There is no need to worry about the periods of the tenancy. That means that there is no need to worry about what day the notice needs to expire on as long as it is more than two months from the date it was served and there is no need to worry about how long the original tenancy was. Therefore this decision largely sets aside concerns raised by previous Court of Appeal decisions such as Church Commissioners v Meya.
This should make life a lot easier for landlords and agents. The main issue now is to ensure that any tenancy deposit is properly protected. This has of course become a little harder since Superstrike v Rodrigues! Swings and roundabouts!