Notting Hill Housing Trust v Roomus

A notice under section 21(4) of the Housing Act 1988 must specify the last day of a period of the tenancy and state that possession is required after that date. The date may be identified by a formula rather than by stating a calendar date.

A notice requiring possession “at the end of the period of your tenancy” satisfies the statutory requirement. In its ordinary temporal meaning, “at the end of” means after the period has ended. It does not mean on the last day or at the indivisible moment when that day ends.

The housing trust granted the defendant an assured shorthold periodic tenancy. It subsequently served a notice under section 21(4) of the Housing Act 1988, requiring possession “at the end of the period of your tenancy” which would end after two months from service.

District Judge Plaskow held that the notice was valid and dismissed the defendant’s application to set aside a possession order made under the accelerated possession procedure. Permission to appeal was granted because the wording raised an issue of general importance and an apparent conflict between Lower Street Properties Limited v Jones and Fernandez v McDonald [2003] EWCA Civ 1219.

The issue was whether the statutory requirement that possession be required after the relevant date was satisfied by the words “at the end of”.

1. Appeal dismissed. The notice was valid. Dyson LJ gave the judgment of the court. Mummery LJ and Sir Martin Nourse agreed.

2. Section 21(4) of the Housing Act 1988 requires a notice to specify a date which is the last day of a period of the tenancy and to state that possession is required after that date. A notice requiring possession on a date which is not the last day of the period fails to satisfy the provision. A notice requiring possession on, rather than after, the relevant last day is also defective.

3. The last day need not be expressed as a calendar date. Lower Street Properties Limited v Jones established that it may be identified by a formula from which the tenant knows, or can readily ascertain, the relevant date. The statement in that case that section 21(4)(a) requires the notice to specify when possession is required did not accurately reproduce the statutory language and formed no part of its ratio. It therefore created no conflict with Fernandez v McDonald [2003] EWCA Civ 1219.

4. The phrase “at the end of the period of your tenancy” means after that period has ended. It does not mean on the last day of the period. The tenancy period continues until midnight on its final day, and the last moment of that day remains distinct from the first moment of the next. Ordinary temporal usage likewise treats an act occurring “at the end of” an event as occurring after the event has ended.

5. Although Fernandez described the wording used in Lower Street Properties as a saving formula, that approval did not determine the present issue. The precise distinction between “at the end of” and “after the end of” was not argued in Lower Street Properties, while Fernandez did not concern a formula notice. The court therefore decided the wording issue directly and upheld the district judge’s conclusion.

1. Court of Appeal (Civil Division): By [2006] EWCA Civ 407, unanimously dismissed the appeal and upheld the validity of the notice.

2. Brentford County Court: District Judge Plaskow held that the notice was valid and dismissed the application to set aside the possession order made under the accelerated possession procedure. He granted permission to appeal.