Taylor v Spencer

An assured shorthold tenancy originally granted for a fixed term may fall within section 21(1) after the fixed term ends and a periodic tenancy arises. Section 21(1) requires at least two months’ written notice but does not require the notice to expire on a specified date. Section 21(2) permits notice before or on the day the fixed term ends; it does not prohibit later service.

Where section 21(4) applies, the notice must identify a date that is both at least two months after service and the last day of a tenancy period. A defective fixed date cannot be corrected as an obvious mistake. However, where the notice also contains a clear alternative formula identifying the compliant date, the defective alternative may be disregarded and the notice remains valid.

A landlord granted an assured shorthold tenancy for six months, followed by a weekly periodic tenancy. He served a printed possession notice under the Housing Act 1988, inserting a fixed date that was not the last day of a weekly tenancy period. The notice also contained an alternative formula referring to the end of the relevant tenancy period.

The High Court, before His Honour Judge Godsmark QC, held the notice valid. The tenant appealed, arguing that the notice was invalid and that section 21(4) governed. The central issues were whether section 21(1) applied after the fixed term, whether notice could be served after its expiry, and whether the alternative formula saved the notice.

1. The appeal was dismissed. Lewison LJ gave the judgment, with the President of the Queen’s Bench Division and McFarlane LJ agreeing.
2. Section 21(1) applied because the fixed-term assured shorthold tenancy had ended, an assured shorthold periodic tenancy had arisen, and no other assured tenancy was in existence. The landlord had given more than two months’ written notice stating that possession was required. Section 21(1)(b) did not require the notice to expire on a particular date or to specify a date. Once those conditions were satisfied, the court was required to make an order for possession.
3. Section 21(2) did not prohibit service of notice after the fixed term had expired. Its permissive wording allowed service before or on the date of expiry but did not impose a restriction on later service. The statute had to be construed as it stood, regardless of possible legislative history.
4. Fernandez v McDonald [2003] EWCA Civ 1219 concerned a notice under section 21(4) which failed to specify the last day of a tenancy period. Its actual decision was not authority on whether section 21(1) applied, because that issue was not part of its ratio. If section 21(4) had governed, the statutory requirement would nevertheless have required a date with the dual characteristics of being at least two months after service and the last day of the tenancy period. An obvious wrong date could not be corrected under the approach in Mannai Investment Co. Limited v Eagle Star Life Assurance Co. Limited [1997] AC 749.
5. The notice contained two alternatives, separated by the word or. A reasonable recipient would see that the fixed date was not the last day of a tenancy period, particularly from the notes on the form and the rental calendar. That alternative was therefore ineffective. The formula alternative identified the compliant date and prevailed. This approach was consistent with Lower Street Properties Limited v Jones [1996] 28 HLR 877 and Hussain v Bradford Community Housing Limited [2009] EWCA Civ 763. The notice was valid on this alternative ground also.

1. Court of Appeal (Civil Division) considered the validity of the notice and unanimously dismissed the appeal: [2013] EWCA Civ 1600.
2. High Court of Justice, Queen’s Bench Division upheld the validity of the possession notice, before His Honour Judge Godsmark QC.