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Assured shortholds - s21 notice |
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If L wants to recover possession of an assured shorthold property then
he has to serve a notice under s21 HA 1988. However, it is well known
that s21(4), which details the requirements for a notice in respect of a periodic tenancy, is fraught with problems.
The wording is complex and
it is difficult to interpret. In essence, T must be given notice ‘stating that,
after a date specified in the notice, being the last day of the period of
the tenancy and not earlier than two months after the date that the
notice was given’ that possession is required. There have been
numerous cases over the years in which L’s have fallen foul of this
complex wording. For instance, in Fernandez [2003] L gave the
necessary two-month notice but said that notice was required ‘on 1
January 2002’, rather than saying it was needed ‘after 31 December
2001’. The former was invalid, and the latter valid, because s21(4)
requires the notice to be ‘after a date specified… being the last day’.
Fortunately, however, the decision in Lower Street Properties [1996]
remains good law. That allows L to serve an s21 notice without having
to state any date at all. Instead, L uses the formula:
‘This notice will expire at the end of the period of your tenancy that will end after
the expiry of two months from the service of this notice upon you.’
Interestingly, this formula works even though it uses the word ‘at’ rather
than ‘after’! The validity of the Lower Street Properties [1996] formula has
been upheld this year in Notting Hill [2006] and it is now difficult to see why
an L should ever choose to use anything other than that formula. Certainly,
giving specific dates seems a recipe for disaster. Having said that, it has to
be said that many Ts who receive such notices will have no real idea of the
date when they are required to move out of the property. Indeed, nor will Ls
(or even their solicitors!). The danger in that situation is that the L who tries
to be helpful by answering a query from T with an incorrect date may find
himself estopped from relying on what would otherwise have been a valid
s21 notice. Other than that minor risk (which can surely be guarded against
by suitable caveats) there seems no reason not to use the Lower Street
Properties formula. For the full authority see [2006] NLJ 1550.
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November 2006 |
