The accelerated procedure for terminating an Assured Shorthold Tenancy (“AST”) is prescribed by statute and, providing the correct procedures and forms are completed, should be relatively straightforward and cost effective.
However, there has previously been a great deal of uncertainty as to which of the prescribed forms are required in those cases where an AST is initially granted for a fixed term, but is then held over by the tenant creating a periodic tenancy (for example, where it is runs from one rental period to the next i.e. week to week or month to month).
The notice requirements for terminating ASTs are set out within section 21 of the Housing Act 1988, with different requirements under section 21(1) and 21(4), depending on the type of tenancy. It was previously believed that a notice that complied with section 21(1)(b) was required to terminate a fixed tenancy, but that a notice compliant with section 21(4) was required for all periodic tenancies (irrespective of whether they were periodic from grant, or following the expiry of a fixed term).
This uncertainty has now been resolved, following the recent decision of the Court of Appeal in Spencer v Taylor. In this case, the six month fixed term expired and, over 5 years later, the tenant was still in occupation (holding over on a statutory weekly periodic tenancy). The tenancy originally commenced on a Monday, with the result that the last day of each rental period was a Sunday. Unfortunately, in the termination notice the landlord required possession on a Saturday, although he included a “saving” clause (in accordance with previous case law) that satisfied the requirements of s.21(4). As such, there was a conflict between the specified date (a Saturday), and the s.21(4) saving clause. Ultimately, the Court of Appeal held, unanimously, that the notice was valid as, amongst other things, it complied with the requirement under s.21(1)(b) that the tenant should be given “not less than two months notice in writing”. In doing so, the Court of Appeal clarified the previous uncertainty: a section 21(4) notice is not required where a fixed AST has expired and been held over on a periodic basis.
As a large number of defences to possession proceedings brought under the accelerated procedure were previously predicated on the fact that the calculation of dates was incorrect, as in Spencer v Taylor, this is likely now to be reduced with no such calculations being required where there is, or was, a fixed AST, so long as the notice period prescribed by s.21(1) has passed. However, it will still be essential to ensure that the other factors that are required for a valid s.21 Notice to be served have been complied with, failing which such a notice may be defective, thereby preventing residential landlords from obtaining a Possession Order.
In summary, it would now appear that a section 21(4) notice will only be necessary where the tenancy was periodic from the start – unless and until this issue is pursued to the Supreme Court.