McDonald & Anor v J Fernandez & Anor

A notice seeking possession of a statutory periodic assured shorthold tenancy under section 21(4)(a) of the Housing Act 1988 must specify the last day of a period of the tenancy. A notice specifying the following day is invalid, even where a reasonable tenant would understand the landlord's intention.

The court must first construe the precise statutory requirement and then decide whether the notice complies with it. The reasonable recipient test cannot replace an express requirement where the legislation does not permit a form substantially to the same effect. Common law rules permitting a notice to quit to expire at the end of one period or the beginning of the next do not make both dates the last day of the period.

The tenants held an assured shorthold tenancy which became a statutory monthly periodic tenancy running from the fourth day of each month to the third day of the next. The landlords served a notice under section 21(4)(a) of the Housing Act 1988 requiring possession on 4 January 2003, rather than specifying 3 January as the last day of the relevant period.

A district judge struck out the tenants' defence to the possession claim. His Honour Judge Mayor QC dismissed their appeal. The Court of Appeal granted permission for a second appeal because the validity of such notices was a question of practical importance requiring a consistent answer in the county courts.

The central issue was whether a notice which specified the day immediately following the last day of a tenancy period satisfied section 21(4)(a).

1. Appeal allowed. Lady Justice Hale, with whom Lord Justice Potter agreed, held that the notice failed to comply with section 21(4)(a) of the Housing Act 1988. The provision required the notice to state that possession was required after a specified date which was the last day of a period of the tenancy. The notice specified the first day of the next period instead.

2. A periodic tenancy does not ordinarily have two last days. The common law authorities allowing a notice to quit to expire either at the last moment of one period or the first moment of the next did not establish otherwise. Those technical rules concerned contractual or common law notices to quit and should not be imported into the plain language of this statutory possession procedure.

3. The validity of a statutory notice must be determined by first construing what the statutory language requires in the context of its scheme. The court may then ask whether the notice satisfies that requirement. A reasonable recipient's understanding remains relevant where the governing provision allows flexibility or an error can be reconciled with the required form. The obviousness of an error is a factor in that assessment, rather than a threshold condition for applying the reasonable recipient approach.

4. Section 21(4)(a) was clear and precise and did not permit wording merely “substantially to the same effect”. Although a reasonable tenant would have understood that possession was sought on or after 4 January, that understanding could not satisfy the requirement to specify the last day of the tenancy period. Strict compliance also provided county courts with clear criteria triggering their mandatory duty to order possession and avoided inconsistent decisions.

5. The requirement caused no disproportionate hardship to landlords. They knew when each tenancy period ended, and a defective notice could be replaced. The Court therefore allowed the tenants' appeal unanimously. Permission for a further appeal was refused.

1. Court of Appeal (Civil Division): Permission for the second appeal was granted at the hearing. The appeal was allowed unanimously because the notice did not comply with section 21(4)(a) of the Housing Act 1988. Permission for a further appeal was refused.
2. Leicester County Court, His Honour Judge Mayor QC: On 11 April 2003, dismissed the tenants' appeal from the district judge.
3. Leicester County Court, District Judge Merriman: On 17 March 2003, struck out the tenants' defence to the landlords' possession claim.