Landlord and tenant – Notice seeking possession – Section 21 of Housing Act 1988 – Appellant’s fixed-term assured shorthold tenancy expiring and weekly periodic tenancy arising under section 5 of 1988 Act – Respondent landlord giving notice under section 21 to terminate tenancy – Notice specifying end date other than last day of period – Whether that invalidating notice – Whether position governed by section 21(1) or (4) of 1988 Act – Notice held valid under section 21(4) – Appeal dismissed on ground of validity under section 21(1)
In 2006, the respondent landlord let a property in Chesterfield to the appellant tenant on an assured shorthold tenancy for a term of six months. The first day of the term was a Monday. The rent was payable weekly with the first payment becoming due on signing the tenancy. On the expiry of the fixed term, a weekly periodic tenancy arose under section 5 of the Housing Act 1988; that tenancy would end on a Sunday on the expiry of a weekly period.
In October 2011, the respondent gave notice to the appellant, under section 21 of the 1988 Act, requiring possession of the property. The notice was on a printed form, which stated that the possession was required: “(a) after” the date to be filled in on a blank box or “(b) at the end of your period of tenancy which will end next after the expiration of two months from the service of this notice.” The date that the appellant inserted into the blank box was a Saturday at the beginning of January 2012.
In April 2012, the respondent brought a claim for possession of the property in reliance on the October 2011 notice. The appellant contended that the notice was ineffective since it had specified an end date which, being a Saturday, was not the last day of the period of the tenancy, contrary to the requirements of section 21(4) of the 1988 Act in the case of claims for possession of a dwelling-house let on an assured shorthold tenancy. The appellant’s contention was rejected in the court below and an order for possession was made.
The appellant appealed. On the appeal, an issue arose as to whether the case properly fell within section 21(1), rather than section 21(4), of the 1988 Act. The appellant argued that section 21(2) of the 1988 Act, providing that a notice “may be given before or on the day on which the tenancy comes to an end”, prohibited the landlord from serving notice under section 21(1) once the fixed-term tenancy had expired.
Held: The appeal was dismissed.
(1) The case was governed not by section 21(4) of the 1988 Act but by section 21(1). There was no prescribed form of notice for that purpose. For the court to order possession, it had to be satisfied of the three matters set out in section 21(1)(a) and (b), namely that: (i) the assured shorthold tenancy had come to an end; (ii) no further shorthold tenancy had come into existence other than an assured shorthold periodic tenancy, whether statutory or not; and (iii) the landlord had given two months’ notice. The first two requirements were met in the instant case since the fixed-term shorthold tenancy had come to an end on its expiry date, an assured shorthold periodic tenancy had then come into existence by virtue of section 5 of the 1988 Act and no other tenancy had come into existence. As to the third requirement, section 21(1)(b) did not require that the notice expire on any particular date or that a date be specified in the notice. It was sufficient that the respondent had given more than two months’ notice. Where a possession order was made and executed, the tenancy terminated regardless of the period, in accordance with sections 21(3) and 5(1A). It followed that the three conditions were satisfied with the consequence that the court was bound to make an order for possession.
The respondent was not prevented from giving notice by reason of the provision, in section 21(2), that notice “may be given before or on the day on which the tenancy comes to an end”. Section 21(2) did not say that the landlord could only serve notice before or on the day on which the tenancy came to an end and did not prohibit the landlord from serving notice under section 21(1) once the fixed term had expired. It would turn the permissive language of section 21(2) on its head to read it as containing a prohibition of that kind. On a straightforward reading of section 21(1) and (2), the instant case was governed by those subsections and the respondent had complied with the relevant requirements: McDonald v Fernandez [2003] EWCA Civ 1219; [2004] 1 WLR 1027; [2003] 3 EGLR 22; [2003] 42 EG 128 distinguished.
(2) Per curiam: Had section 21(4) applied to the case, the better view was that the notice would have complied with its requirements. A notice that only required possession on a single date, which was not the last date of a period of a tenancy, would be invalid for the purposes of section 21(4), but a notice that contained a formula referring to the last day of a period of a tenancy, which enabled the tenant to work out when it expired, would be valid: Ferdandez and Lower Street Properties Ltd v Jones (1996) 28 HLR 877; [1996] 2 EGLR 67; [1996] 48 EG 154 applied. Although the notice in the instant case contained both a fixed date and a formula, the application of which resulted in a different date from the fixed date, that did not in itself invalidate the notice. Although the court had no power to correct a mistake in a section 21(4) notice, it was entitled to apply the test of what a reasonable recipient would have understood the notice to mean: Fernandez considered; Hussain v Bradford Community Housing Ltd [2009] EWCA Civ 763; [2010] HLR 16 and Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749; [1997] 1 EGLR 57; [1997] 24 EG 122 and [1997] 25 EG 138 applied. If the reasonable reader of a notice would understand that one date was the primary date and the other date was a fallback, then the notice would be valid. Although the two dates in the respondent’s notice were given as alternatives separated by the word “or”, without specifying which was the primary date, a reasonable recipient would look at the back of the form and its statement that the notice had to specify the last day of a period of the tenancy. She would know that she paid her rent on a Monday and would see from her calendar that the specified end date was a Saturday, which was obviously not the last day of a period of the tenancy. That would lead her to conclude that the fixed date specified in the notice could not be effective since it did not do what the notes said it had to do. Since that alternative was ruled out as being ineffective, the other alternative had to prevail. So construed, the notice was valid. That approach might be regarded as a variant of the principle that if a document admitted two interpretations, one of which made it valid and the other invalid, then the validating interpretation should be preferred.
Iain Colville (instructed by Hopkins Solicitors, of Mansfield) appeared for the appellant; Oliver Radley-Gardner (instructed by BRM Solicitors, of Chesterfield) appeared for the respondent.
Sally Dobson, barrister
