Permission 1 – refused: date of notice

Elias v Spencer [2010] EWCA Civ 246 [Not on Bailii yet]

This was a permission to appeal to the Court of Appeal hearing.

The issue was the date given in a s.21 Housing Act 1988 notice on an assured shorthold tenancy. The notice stated that possession was required:

After: 22ND NOVEMBER 2008 or,
if this notice would otherwise be ineffective, after the date being the earliest date not earlier than two months after the date of service of this notice when shall expire a period of the assured shorthold tenancy.

The issue was that a period of the tenancy ended on 21 November 2008. The tenant, Mr S, argued that the combination of a specified date and the saving provision giving another date meant that there were two dates and the notice thereby did not specify THE date for possession, as required by s.21(4)(a).

The Court of Appeal was not impressed, noting that the saving clause did result in the correct date being given and that in any event, the error was to the benefit of the tenant. Despite some factual differences – the two dates – this case fell under Lower Street Properties v Jones [1996] 28 HLR 877, where a saving clause in similar terms was held to be good. The appeal had no prospects of success.

Thanks to the Garden Court housing bulletin for drawing our attention to this.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Assured Shorthold tenancy, Housing law - All, Possession and tagged , , .

5 Comments

  1. Quite a useful case as I’ve often seen these sorts of notices and my advice has been well it ‘might’ not be a proper notice but unlikely to be worth defending.

  2. Thanks for this. It is now up on lexislibrary. The point is made in the judgment that the notice was only good because it was clear in which circumstances the saving clause would be relied on; ie if the date would otherwise make it invalid.

  3. Lee, that point was indeed made, but I wouldn’t go so far as to say that the fact that the circumstances in which the saving clause would kick in were stated was the sole decisive factor. The view would seem to be that as long as the tenant could work out the date and there was little detriment, the clause would be good.

  4. Hello

    Would there be any possiblilty of a copy of the judgment please? I subscribe to Westlaw and it’s not on there so it seems Lexislibrary are the only ones with this (not on Bailii either). I would be happy to swap with anything that might be on Westlaw but not on Lexis?

    I may have genuine need for this judgment as am dealing with a local authority who are suggesting Lower Street Properties was incorrectly decided where a four weekly rental period is in place!

    My email is guild[at]all4landlords.com ([at] to avoid spam)

    Many thanks

    Adrian

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