Suvini v Anderson, Staines County Court, 13 August 2010
It is well known that notices under section 21(4)(a) of the Housing Act 1988 must give notice to a tenant that “after a date specified … being the last day of a period of the tenancy … possession of the dwelling-house is required”. This is an issue that has been before appellate Courts a surprising number of times. Most notably in MacDonald v Fernandez [2003] EWCA Civ 1219.
In Church Commissioners v Meya [2006] EWCA Civ 821, the Court of Appeal made a close reading of section 5 of the Act and held that it should be construed as reading that the periods of a statutory periodic tenancy created by that section “are the same as [the periods] for which rent was last payable under the fixed term tenancy.” In short, then, if I pay the rent under the fixed term quarterly then once the tenancy becomes periodic by way of s5 the periods remain quarterly, irrespective as to how rent was then paid. This leaves open two key questions:
- What happens if the tenancy becomes periodic by way of contract and section 5 is not involved? and
- What happens if the rent payment day is changed during the fixed term? Does this alter the start and finish dates of the periods of the tenancy when the tenancy becomes periodic?
The first question will have to await another day because it was the second of these questions that came before DJ Batcup in Staines.
In this case S had let a property to A from 18th August 2007 to 17th August 2008 with a rent of £1,200 payable on the 15th August 2007 and 15th January 2008. A further tenancy was granted for another 12 months from 18th August 2008 to 17th August 2009, rent being payable bi-monthly in advance starting on the 11th August 2008. After August 2008 the tenancy continued on a periodic basis. A notice under section 21(4)(a) was served on 1 April 2010 seeking possession “after 17 June 2010 or, if later, the day on which a complete period of your tenancy expires next after the end of two months from the service of this notice.”
Basically if the periods of the tenancy were as set out in the tenancy agreement then possession should be given whereas if it was accepted by the Court that the start and finish dates of the periods had been changed by the changed payment provision then the notice would have to rely on its saving provision and could not therefore expire until 10 August. Proceedings were issued before 10 August and so this position would be fatal to possession proceedings.
Ultimately DJ Batcup came down on the side of ruling the notice valid and awarded possession.
This case actually raises a serious question as to what a period actually means. Following DJ Batcup’s view there is an indirect correlation between the payment dates and periods. In other words a periodic tenancy can run from period to period without there being a presumption that rent is due at the start of the period for that period. This is hard to credit and certainly runs counter to the usual rule at common law. The reasoning also runs counter to that of the Court of Appeal in Tadema Holdings v Ferguson where it was held that an agreed change in payment dates did change the periods of the tenancy for the purposes of a s13 rent increase notice. However, in Church Commissioners the Court expressly rejected the idea of a “symmetry between the statutory provision and the common law rule” when considering the length of a period.
We understand that this matter has been appealed to a Circuit Judge so there will be a further installment at a later date.
With thanks to James Browne of Lamb Chambers