Section 21 Notices: to date or not to date?

Last year saw many significant changes to our legal system, most of which brought with them sighs of exasperation from practitioners up and down the country. A breath of fresh air, however, came at the end of 2013 in the form of the case of Spencer v Taylor. This case, having gone to the Court of Appeal, clarified the position as to the type of notice you should use to gain possession of residential properties held on assured shorthold tenancies (ASTs) when relying on section 21 of the Housing Act 1988.  Section 21 is the most common way of seeking possession of a property whether or not there has been default on the part of the tenant.

Prior to Spencer it was considered that if your AST was still within its fixed term, you had to serve notice giving the tenant at least two months’ notice that you were terminating the tenancy. If your AST had turned into, or had always been, a periodic tenancy, you had to give two months’ notice to expire on “the last day of a period of the tenancy”. This particular phrase has been the bane of many landlords’ lives with many a notice deemed void because the date that the tenant was asked to give vacant possession of the property was wrong.  The consequence to the landlord was the loss of time and money in having to serve new notices, often several months after the first notice was served, to remove unwanted tenants from their properties.

In Spencer, the Court considered the precise wording of section 21 and found that all tenancies, except those that had never had a fixed term, could be validly terminated by giving at least two months’ notice. The notice period did not need to expire on “the last day of a period of the tenancy”. By reaching this conclusion, the Court of Appeal has considerably simplified the notice to be given under section 21 by substantially reducing the time in some cases between serving the notice and possession and the circumstances in which a notice under this section can be held to be void.

Despite the positive message that Spencer brings, it is important to remember that taking that case to the Court of Appeal would have been very costly and time-consuming for all involved. You can keep the risk of this type of litigation to a minimum by having a properly-drafted, written tenancy agreement and by taking professional advice to ensure that notices are drafted correctly.

If you would like to discuss this case further or you need help with any aspect of your relationship with a tenant, then please contact Claire Trolove on 01733 898959 or email  Claire will be able to also give you details of the Landlord and Tenant Fixed Fee Package we offer, which provides all the basic documentation and advice that you could possibly need at an affordable fixed cost.