We have already reported briefly on the Supreme Court decision to refuse permission to appeal to the tenant in the case of a Spencer v Taylor on the grounds that no new points of law were raised.
As the solicitor acting for the landlord in the Supreme Court I have had the chance to see rather more of the papers and so a more detailed discussion of some of the points that came out of this would be interesting.
Some Background
The original section 21(4)(a) notice served by the landlord’s original solicitors contained a date that was incorrect. The notice also contained a saving provision of the type approved in Lower Street Properties v Jones. The tenant argued in seeking permission to appeal to the Court of Appeal that the presence of the date and the saving provision meant that the notice was defective because it effectively gave the tenant two possible dates by which they had to leave and so it did not “make clear” the date that possession was sought. The Court of Appeal had already refused permission to appeal on this point some time ago in the case of Elias v Spencer (no relation!). However, in this case a key distinction was drawn. In Elias v Spencer the saving provision started with the phrase “or if different” whereas in this case the saving provision merely commenced “or”. The distinction drawn therefore, which led to the appeal being permitted at the CA, was that in Elias the saving provision was written in such a way as to make clear that it overruled the date if there was a discrepancy. In Spencer no such hierarchy existed and the notice was therefore unclear.
The Court of Appeal
This same argument was made by the tenant at the CA and formed the bulk of the submissions for both sides. As most readers will know (and you can read up on it in our report here) the CA went in a totally different and unanticipated direction and held that the original notice was valid under s21(1)(b) and not under s21(4)(a). As a backstop Lewison LJ also dealt with the substantive arguments made to him and held that the notice was still clear even though the date and saving provision could be seen as proposing two alternative dates.
The Supreme Court
The argument in the Supreme Court largely became one over policy and the parliamentary intent. The tenant was arguing that the decision of the CA could not be what parliament had intended. Parliament created two notice mechanisms under s21. The (1)(b) mechanism and the (4)(a) mechanism. At the time of creation the Housing Act 1988 required that an AST be for 6 months and so the intention of the s21(4)(a) was not to deal with tenancies that were periodic from the start but specifically to deal with tenancies that had become periodic before service of the s21 notice. This was undoubtedly correct up to a point. However it is a bit more complex than this.
S21(4)(a) is actually something of an error. The original version of the Housing Act 1988 contained just one notice under s21, the 1(b) notice. The (4)(a) notice was introduced at Commons committee stage largely because the government of the day did not really understand their own legislation. The belief was that a notice given during the periodic tenancy would need in some manner to comply with the common law provisions applicable to notice to quit given in periodic tenancies. Notices to quit had already been ruled as of being no effect in s5 of the new Act and so some method was perceived as necessary to avoid this issue. Hence the introduction of s21(4)(a) which was intended to mimic the notice to quit process so that it would satisfy the common law issues and also to fit within the s21 process.
The reason that Parliament was wrong was set out in the case of MacDonald v Fernandez where no less a personage than Hale LJ (as she then was) held that an s21 notice was not a notice to quit and hence that the s21 regime fell outside the common law notice to quit regime.
Common Law or Statutory
Much of this problem is due to the real inconsistency that operates when considering Housing Act 1988 tenancies. Are they statutory or common law but with a statutory overlay? Parliament clearly must have felt that they were common law but with a statutory overlay as they felt there was a need to have a section 21 process that also complied with the common law notice to quit process. They are also treated this way in Scotland where a section 33 notice (the s21 equivalent there) must be supplemented with a common law notice to quit to prevent the operation of the common law process of tacit relocation.
However, the Courts have been less certain. MacDonald v Fernandez appeared to treat s21 as entirely divorced from the notice to quit process and so assumed that there was no common law component. Likewise the Court of Appeal in Aylward v Fawaz treated a notice under s21 as also terminating the contractual component of a tenancy by implicitly operating the contractual break clause therein.
Resolving this conundrum once and for all would have been an attractive reason for the Supreme Court to hear this matter. However they did not agree.
Time
The tenant also suggested that the s21(4)(a) process allowed tenants in a periodic tenancy a little more time to find alternative accommodation. I am not sure that this was their best argument but it does not seem to be supported by the Parliamentary debates. The issue of time was raised in the Lords where a “use it or lose it” element was suggested so that if a landlord did not use the s21 notice promptly they would have to serve a fresh one, in a similar manner to a s8 notice. This was rejected and it was stated by the government that a tenant who had been presented with an s21 notice would have had their two months notice and would therefore be aware of the precariousness of their position.
This approach is clearly what was intended by Parliament and this was very damaging to the tenant’s argument but it is a very hardened approach to take.
Further Appeals
The Supreme Court is clearly not convinced of the need to consider s21 further. The tenant sought to suggest that they should as it had not been considered but to no avail. There is no opportunity to take this further that I can see as there is no aspect of the tenants human rights that is sufficiently engaged to justify a further appeal. There have been no human rights arguments made so far and so making one now would require a fresh approach to the whole issue. Given the very wide latitude afforded to Parliament and that the Court of Appeal decision does appear to fit into the Parliamentary intent I am not sure that it would succeed.
Where We Are
The short position then is that an s21(1)(b) notice is a valid notice for any AST where then a pre-existing fixed term tenancy. This will mean a far more rapid turnover of eviction in periodic tenancies I suspect as some of the technical errors that landlords used to find themselves making have gone. It also means that cases such as Lower Street Properties v Jones, Church Commissioners v Meya, and MacDonald v Fernandez will become much less relevant in a lot of cases.
There are still some cases where s21(4)(a) has relevance. Periodic tenancies that have never had a fixed term component and fixed term tenancies that have become periodic by way of a contractual provision rather than the provisions of s5. Some social landlords create tenancies that are periodic from the outset and some private landlords use contractual periodic tenancies to allow for rent increase clauses to function in the periodic tenancy and to ameliorate the complex deposit effects of Superstrike v Rodrigues (at least until the Deregulation Bill come in).
Where an s21(4)(a) is used it is worth noting that the second part of the Court of Appeal decision is in fact obiter and so a saving provision that does not show a degree of hierarchy may not be valid. However, it would be a brave argument to run.
Hi,
Thanks for your post. I think it’s gradually sinking in!!
I read s.21(1)(b) to refer to notices applying to those situations in s.21(1)(a) – including periodic tenancies arising at the end of a fixed term “whether statutory or not”. So would that not cover contractual periodic tenancies following on from (or indeed created at any later date after) the end of a fixed term?
Am I missing something?
Thanks.
Mark
I think that is largely right. The key point is that the fixed term has to have ended and with it the tenancy. As we know, a statutory periodic is a new tenancy. So yes, I think it might apply where a new contractual periodic tenancy has been agreed, commencing at the end of the fixed term. But then s.19A applies to the new tenancy, and it is an AST, 6 months and all no?
A periodic running on from the end of the fixed term (where agreement says, for example, 6 months and thereafter monthly period) would still be the same tenancy, so s.21(4)(a) would be required.
Apologies I was probably not clear enough here. The vast majority of contractual periodic tenancies that continue on from a fixed term are specifically created as continuation tenancies. If they are new tenancies on a periodic basis then there is no protection from Superstrike so there is no point in doing it.
Would I therefore be correct in assuming that if a tenant provides notice following a fixed term, they would only have to provide one months notice without the requirement to end on the last day of the period?
Obviously periodic tenants would still need to provide notice ending on the last day of the period?
Any thoughts anyone?
No you would not. A tenant is giving notice under the usual common law provisions. This still requires notice to expire on the first or last day of a period. This decision has no application to that situation.
Thanks.
Can you please clarify. Am I correct in saying that as the Tenant serving notice to end a periodic tenancy, whether it is an AST or Contractual tenancy, is doing so under Section 5 of the Protection from Eviction Act 1977, that he must therefore still give notice to end in line with tenancy/rent period even if the periodic term is following on from a fixed term?
Also – under the Deregulation Act 2015 I understand that S21(4)(a) Periodic notice will also no longer have to end at the end of a tenancy/rent period with effect, it is anticipated, from October 2015. Are we to assume that this also will apply only to Landlords and not to Tenants?
Tenant notice to quit is common law. s.5 PEA 1977 also applies to set the minimum period. Common law provision is notice of one period of tenancy, to expire on last day of period (with a 28 days minimum for say a weekly tenancy).
The Deregulation Act changes only apply to s.21 notices, so won’t change the common law position for tenants.
An observation – the 1st January 2012 was a Sunday and not a Saturday as the case suggests. I suspect someone was looking at 1 January 2011 which was a Saturday. Therefore the notice did expire on the last day of a period of the tenancy.
Rachel, that may or may not be the case, but actually doesn’t matter.
It is the case (having checked). The initial argument was that the notice didn’t expire on the last day of a period of a tenancy. Clearly it did yet everyone worked on the basis that it was a Saturday. If that isn’t a material fact what is?
The judgement is itself in error. The notice did not in fact expire on the last day of a period. However, it is not really relevant to the ultimate decision as it was on a point of law.
The Law as usual is wonderful. Have we now got to the stage that a notice requiring possession of a shorthold tenancy property, that is just entering the statutory periodic stage, can be issued quoting section 21 of the Housing Act, or does it still need to quote the subsection, and would be deemed to be invalid if it only quotes Section 21?
Many thanks
It never did require quoting the subsection.
The subsections just gave different requirements to be satisfied by the S21 notice dependent on the state of the tenancy, not a requirement to quote the subsection in the notice.
If the tenancy contract explicitly sets out the process and the end dates for giving notice, can the landlord still use Section 21(1)(b) (or Section 21(4)(a) for that matter) to give notice on a different date ?
Statute usually trumps contract, so I would think so. That said, if the contractual provisions were, in effect, more generous, there might be an argument that the notice amounted to breach of contract. I’m not sure that this would stop the notice having effect, though.
Going per statute, it appears a notice under Section 21 (1)(b) is enabled by Section 21(2). Section 21(2) has been ruled to be permissive rather than proscriptive. As such, wouldn’t the contractual commitment amount to the landlord have given up his/her right to use that clause ?
No. That could not work as it would mean excluding s.21(1)(b) altogether, but s.21(4) only applies for periodics.
Actually, thought about this more. Contractual clause would not invalidate s.21 notice, as that is statutory. I suppose that tenant might have an estoppel argument in a defence – relying on contractual term – so Landlord should be estopped from relying on notice served otherwise. But I wouldn’t want to bet on the prospects of such an argument being successful.
Do the new rules of the deregulation act only apply to new tenancies from october 1st onwards and any amendments, rolling periodic etc. If a 12 month AST was signed in July 2015, could this be ended successfully with a section 21 in the new prescribed form on any date you choose?
Yes.