All change? Section 21 Notices
Following a recent Court of Appeal decision, the established wisdom about the service of the humble Section 21 notice was challenged. The case will potentially affect the majority of Section 21 notices served on periodic tenants. As the most commonly used notice for private sector lettings, this is a judgement with far reaching potential impact.
The facts of the case were quite simple. The landlord, Mr Spencer, let a property in Chesterfield to Miss Taylor back in 2006. At the end of the agreed six month fixed term tenancy a statutory periodic tenancy arose by virtue of section 5 of the Housing Act 1988.
This statutory periodic tenancy continued unchanged right through to October 2011 when the landlord served a notice seeking possession. The notice was in the form of a section 21(4) periodic version. It stated that the landlord wanted possession after the 1 January 2012 and then included a “saving clause”.
The saving clause comes from the Lower Street Properties v Jones case where the notice did not include a date, but simply a formula by which the tenant could calculate the expiry date of the notice. In this case there was a date listed as A) and a saving clause stated at B).
The tenant had moved in on a Monday, and the court held the periods of the tenancy were the weeks from Monday to Sunday. The tenant argued the notice was not valid as it expired on the wrong day of the week.
The great surprise in the judgement was that the judge decided that even though the fixed term had ended years before the notice was serve, the “fixed term” version of the notice, under section 21(1) should have been used. It all hinged on the wording of section 21(2) that said the section 21(1) notice “may” be used during the fixed term. It does not say if it may or may not be used after the fixed term. The decision of the Court of Appeal was that it should be used after the fixed term ended.
Covering all the bases, the judge said that if he was wrong about the use of the section 21(1) notice, it still met the requirement of section 21(4).
The tenant had argued that the notice was void for uncertainty. In other words, as there were two dates, it was not clear which date should be regarded as the date of expiry of the notice.
The judge decided that it was clear from the form of this notice that the date quoted, 1 January 2011, should be regarded as the expiry date of the notice, unless this date was not valid in accordance with the rules in section 21(4). In that case the reader would then use the savings clause to ascertain the expiry of the notice.
As it was evident the date should be used first and the savings clause only as a last resort, the notice was valid. Therefore the notice was considered valid under both sub sections and the tenant was evicted.
The Immigration Bill is making its way through Parliament. This new legislation will require that before landlords or agents let a property, they will have to check the immigration status of the tenant.
Whilst the primary legislation is drafted, much of the details will be contained in regulations that are yet to be produced.
Mark Harper, the former immigration minister who started this process, was recently forced to resign when it was discovered that he was actually employing an illegal immigrant as a home help. There has been legislation for some years requiring employers to ensure that staff employed have the right to work in the UK. Clearly Mr Harper failed to comply with these rules and paid the price.
However, this case does show how difficult this whole issue is. It will require landlord or agent to carry out additional checks before letting to tenants. They will also have to understand issues around immigration that perhaps they do not currently have the skills to do.
Knowing the nationality of the tenant will clearly be the first step. This is easy to establish from passports. The next step will be to understand which nationalities are then allowed to live in the UK.