Recent Court of Appeal case - S21 validity

tbs624

Interesting piece over on Nearly Legal following the Court of Appeal case of Spencer v Taylor [2013] EWCA Civ 1600
Nearly Legal's David Smith comments:

"In summary the position is now that if a tenancy has at some stage had a fixed term then a notice which complies with s21(1)(b) will always be an acceptable means of termination, whether it is being served during a fixed or periodic part of the tenancy. Accordingly, a notice under s21(4)(a) is only for tenancies that were periodic from the outset and have always been so. This means that for the majority of tenancies in England & Wales the s21(4)(a) notice is now irrelevant as almost all of them have at some stage been operating under a fixed term."

Case transcription at
http://www.bailii.org/ew/cases/EWCA/Civ/2013/1600.html

ihatemyhouse

in English? lol

ging84

ihatemyhouse wrote: »

in English? lol

looks like they have closed some loophole that meant it was awkward to serve a tenant notice during the last 2 months or so of the tenancy because the change of tenancy allowed people to argue the notice became invalid after the tenancy changed from fixed to periodic

G_M

So Notice requiring possession from a tenant

a) should be given via S21 (1) (b) during a fixed term

b) can be given via S21 (1) (b) even during any periodic tenancy if it was preceded by a fixed term

c) does not need to align with the tenancy periods (but must still be two+ months) even if served during a periodic tenancy via S21 (1) (b)

d) must be given via S21 (4) (a) where there was never a fixed term (ie contractual periodic from the start)

e) can be given by either/both in a periodic tenancy that follows a fixed term as the two are not mutually exclusive.

G_M

tbs624 wrote: »

Interesting piece over on Nearly Legal following the Court of Appeal case of Spencer v Taylor [2013] EWCA Civ 1600
Nearly Legal's David Smith comments:

"In summary the position is now that if a tenancy has at some stage had a fixed term then a notice which complies with s21(1)(b) will always be an acceptable means of termination, whether it is being served during a fixed or periodic part of the tenancy. Accordingly, a notice under s21(4)(a) is only for tenancies that were periodic from the outset and have always been so. This means that for the majority of tenancies in England & Wales the s21(4)(a) notice is now irrelevant as almost all of them have at some stage been operating under a fixed term."

Case transcription at
http://www.bailii.org/ew/cases/EWCA/Civ/2013/1600.html

Thanks tbs.

Surprising ruling considering how long landlords, housing advisers, property solicitors AND courts et al have been using S21 (4)(a) notices [STRIKE]apparently wrongly![/STRIKE]unneccessarily.

(edit- having read the judgement fully I realise S21 (4)(a) can still be used, but does not have to be.)

I shall update my post on ending tenancies shortly - actually it will need a major re-write!

Hump

It means that the majority of s21 notices will be under 1(b) - just giving 2 months and not having to worry about 'the last day of a period of the tenancy' nor 'a saving clause'.

G_M

Point 16 in the ruling was also interesting, though I see no definitive decision:

In addition, as Mr Radley-Gardner, appearing for Mr Spencer, points out on Mr Colville's construction the landlord could serve notice during the currency of the fixed term tenancy, leave the tenant in possession for years afterwards under a statutory periodic tenancy and begin possession proceedings without any further notice at all. That would give the tenant no certainty. I would hold, therefore, that on a straightforward reading of section 21(1) and (2), our case is governed by those sub-sections. On that basis, it is clear that the landlord complied with the relevant requirements.

This has long been a contentious issue.

Lord Justice Lewison highlights it, appears to make his feelings about it clear, but make no legal ruling......

jamie11

Does this mean that when issuing a S21, where there has been a fixed term initially, we only have to give the bare two months notice from date of issue?

Is this a precedent?

G_M

jamie11 wrote: »

Does this mean that when issuing a S21, where there has been a fixed term initially, we only have to give the bare two months notice from date of issue?

Is this a precedent?

Yes.

Yes.

:T

jamie11

OK!

I've read it through now (the judgment) it seems to be saying that a S21(4)(a) needs only to be used in the case that a tenancy was periodic from the very start. in all other cases a S21(1)(b) should be valid with a minimum of two months notice even if issued halfway through a tenancy period.

Thanks TBS624, that's an important bit of knowledge. (if I'm right)

That's going to change a few of our answers in the future.

jjlandlord

And so, that 'may' in s.21(2) becomes priceless.