Landlord and tenant – Notice – Assured shorthold tenancy – Appellant holding fixed term tenancy of flat – Agreement providing for termination on two months’ notice – Respondent giving notice and seeking possession – Appellant appealing – Whether notice complying with section 21(1B) of Housing Act 1988 requiring six months’ notice – Appeal dismissed
The respondent, a private registered provider of social housing (RPSH), granted the appellant a fixed term assured shorthold tenancy (AST) of a ground floor flat, at 15 Mildmay Street, Greenbank, Plymouth. The tenancy agreement included a provision for a starter period to enable the registered provider to avoid granting tenancies to tenants who would not comply with the provisions of the lease. Disputed allegations were made about the appellant’s behaviour and the respondent served notice and brought proceedings for possession. Those proceedings were compromised with the respondent granting the appellant a new tenancy for a fixed period of seven years, including a starter period. The second tenancy agreement included a provision that the respondent could end the fixed term of the tenancy by giving two months’ written notice.
Following further allegations of anti-social behaviour, a notice purporting both to exercise the two-month break clause and to be a notice under section 21 of the Housing Act 1988 was sent by first class post to the appellant. The respondent subsequently brought proceedings for possession. The appellant argued that the notice did not comply with section 21(1B) of the 1988 Act which required six months’ notice to be given to the tenant that the registered provider did not intend to grant a new tenancy when the fixed term expired. The county court held that the respondent was not required to give six months’ notice because section 21(1A) and (1B) had no application to a tenancy with a break clause because it was not the effluxion of time. The appellant’s appeal against that decision was dismissed: [2018] EWHC 2454 (QB).
The appellant appealed. The issue was whether, as a result of section 21(1B), the procedural conditions imposed on the landlord of a fixed term tenancy who had exercised his power under the break clause had been changed in the case of a fixed term tenancy granted by an RPSH for a term of two years or more so that at least six months’ notice had to be given in addition to the two months’ notice required under section 21(1)(b).
Held: The appeal was dismissed.
(1) A minister’s statement concerning the Localism Act 2011 (which introduced section 21(1A) and 21(1B)) made it clear that the primary concern was to provide adequate notice to tenants under a fixed-term assured shorthold tenancy of at least two years that they would not have their tenancy renewed at the end of the fixed term. There was an obvious similarity between the provisions in the Housing Act 1985 in relation to flexible tenancies and those of section 21. The ministerial statement was limited but confirmed what was implicit in both section 21(1) and the provisions in the Housing Act 1985 governing flexible tenancies, namely that the six-month notice period assumed an expiry of the fixed term by effluxion of time, and not as a result of its premature termination under a break clause.
(2) The judge was wrong to construe the word “is” in section 21(1A) as requiring that the tenancy should remain a fixed term tenancy for a term certain of not less than two years as at the date of the hearing or the issue of possession proceedings. That would make the new statutory provisions inoperable and could not have been Parliament’s intention. If the word “is” was to be applied literally, it would also cause difficulties where a fixed term tenancy granted for a term of two years or more was allowed to expire by effluxion of time before the landlord served a section 21(1B) notice. It was unlikely that Parliament could have intended that the RPSH should be able to avoid giving six months’ notice under section 21(1B) simply by waiting until the contractual expiry of the term. A more rational explanation was that section 21(1A) merely identified the type of tenancy to which the notice provisions in section 21(1B) applied. The use of the present tense was not itself intended to provide a condition which had to be satisfied as at the date of the possession hearing. In the case of a fixed term tenancy as described in section 21(1A), the operative provisions were those in section 21(1B) which restricted the court’s power to make the possession order sought unless the notice provisions had been complied with: Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 followed.
(3) The purpose of a section 21(1B) notice was to inform the tenant under the AST that the tenancy would not be renewed at the end of the contractual term: not on its termination at any earlier point in time. That information was of no relevance to a tenant whose tenancy was brought to an end on notice or by forfeiture earlier during its term. Section 21(1B) should therefore be read as a bar to the court making an order for possession only where the term of the AST had expired by effluxion of time. The careful draftsman might have chosen to insert into section 21(1B) after the word “unless” words such as “where applicable”. But that reading of section 21(1B) arose by necessary implication given the obvious purpose and limitation of the section 21(1B) notice itself. That was the correct construction of those provisions. It also avoided giving section 21(1A) a construction which would render the intended purpose of the amendments unachievable.
(4) Had it been necessary to do so, the court would have rejected the respondent’s argument that a fixed term tenancy with a break clause allowing it to be terminated during the first year was not a tenancy for a “term certain” within the meaning of section 21(1A)(a). Certainty of term was a condition of every valid tenancy and the reference to a “tenancy for a term certain” in section 82(1)(a) of the 1985 Act was a well-established nomenclature to describe a tenancy granted for a term of years. In formulating the provisions of section 107A(2)(a) of the 1985 Act and section 21(1A)(a) of the 1988 Act, the draftsman had merely added the requirement for a two year minimum period to that definition.
Russell James (instructed by Shelter Legal Services (Plymouth)) appeared for the appellant; Nicholas Grundy QC and Tristan Salter (instructed by Capsticks Solicitors LLP) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Livewest Homes Ltd (formerly Laverty Ltd) v Bamber
