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Jean-Yves Gilg

Editor, Solicitors Journal

Take note

Take note


DJ Tim Jenkins

It is a truth universally acknowledged, that someone seeking (re)possession of a good home must be in want of a valid notice '“ or so Jane Austen might have written if the Bennetts had fallen into arrears. Much angst and litigious blood has been spilt over the form of notices particularly under section 21 of the Housing Act 1988, but still, human ingenuity knowing of course no bounds, we seek new ways not to get it quite right. To which we add the latest tweak to the Civil Procedure Rules. So, while all those who confidently know how to suck eggs might wish to move on, it may be worthwhile to spend just a few moments to consider some of the notice hurdles.

We know that mortgagees must serve notice of the proceedings on 'the occupiers'; the 49th update provides that from 6 April 2009 notice must be given within five days of receiving notification of the date of the hearing and not 14 days prior to the hearing (CPR Part 55.10(2)). There is no change to the information to be provided.

Part 55.10(4) has not changed. Claimants often rely on either a copy of a letter sent or a certificate of service but they must do both and the obvious and not uncommon way is to prove service in the supporting affidavit and exhibit a copy of the notice. Note 'must': while the claimant may persuade the court to exercise Part 3.4 discretion, the prudent claimant's solicitor should avoid the risk.

Section 21 notices present greater challenges. Although it is sometimes suggested that an effective notice can be given under sub-section (1) in respect of a statutory periodic tenancy, the preferred view, and that which is likely to give rise to a better night's sleep, is that sub-section (1) applies only where notice is given during the term when the specified date may be any date but, if that date is before expiry of the term, no claim for possession can be brought until either expiry of the term or after six months '“ whichever is the later: there is no cause of action. If the specified date is after expiry of the term, sub-section(2) ensures no difficulties are caused by the ensuing statutory periodic tenancy. So:

  • in writing;
  • two months (or more);
  • ending on any date; and
  • in no specified form.

Splitting hairs

Sub-section (4) has received much judicial attention. Although the Court of Appeal in Notting Hill Housing Trust v Roomus [2006] EWCA Civ 407 described the task as seeming 'to involve hair splitting', it considered the difference between 'at the end of the period of your tenancy' and 'after the end of the period of your tenancy' (there is none). In Fernandez v McDonald [2003] EWCA Civ 1219, 'after' was compared to 'on'. Up and down the country courts consider notices under sub-section (4) in varied and often peculiar form.

How to avoid difficult post hearing discussions? Perhaps by following the wording of the sub-section, carefully calculating the 'end of the period' particularly if the tenancy was created some years ago; the submission 'but I have given the tenant more than two months' notice' is often heard and always fails if the specified date is incorrect. So, the notice must be:

  • in writing, but no specified form;
  • stating that after a specified date;
  • which is (at least) two months hence;
  • and which is the last day of the period of the tenancy;
  • possession is required by virtue of section 21; or by using a formula as approved in Lower Street Properties Limited v Jones [1996] 28 HLR 877 where, instead of on a specified date, the notice expires 'at the end of the period of your tenancy which will end after the expiry of two months from the service upon you of this notice'.

Using the Lower Street formula

Using the formula and specifying a date may give belt and braces protection but is problematic if the formula and specified dates are different; the sub-section requires 'a' date, and if the notice gives two dates it will be defective '“ even if one of the dates specified is correct. Often the saving phrase 'if later' is added and, while that provides a method of choosing, it only works if the formulaic date is correct. If the formula provides a correct date, but this falls before the specified date, the notice will be defective.

The end of the period of the tenancy usually calculates by reference to the rent reserved; a rent expressed as £X per week is a weekly tenancy and the relevant last day of the period will be the appropriate weekday after two months, so two months from the date of service of the notice is unlikely to expire on precisely the last day of a period. Monthly tenancies are less complicated, but an annual rent is not unknown (although rare) and the consequences of missing the end of a period could well be a long wait. However, although this represents the common law position and probably the general practical position, in certain circumstances the position may be different. Church Commissioners for England v Meya [2006] EWCA Civ 821 held that the words 'was last payable under the fixed term tenancy' in section 5(3)(d) of the 1988 Act mean the period is to be calculated by reference to the period for which rent was last payable under the contract; so, although Ms Meya's rent was expressed as an annual rent, as it was paid quarterly the period of her tenancy was quarterly.

So, either serve the notice before the expiry of any term or use the Lower Street formula and only the formula. Jane Austen must be pleased she only had to deal with the complexities of marriage.