Livewest Homes Ltd v Bamber

Sections 21(1A) and 21(1B) of the Housing Act 1988 require six months’ notice only where the relevant assured shorthold tenancy remains a fixed-term tenancy for a term certain of at least two years. A fixed-term tenancy may contain a break clause. However, exercising a break clause during a starter period may convert the tenancy into a statutory periodic tenancy under section 5(2). Once that occurs, the six-month notice regime does not apply. The statutory wording cannot be rewritten to refer to a tenancy which previously had the required fixed term. A notice may both determine a statutory periodic tenancy and satisfy the ordinary two-month notice requirement.

Livewest, a private registered provider of social housing, granted Ms Bamber a seven-year assured shorthold tenancy containing a 12-month starter period and a break clause allowing termination on two months’ written notice. During the starter period, Livewest served a notice purporting to exercise the break clause and to comply with section 21 of the Housing Act 1988.

The Plymouth County Court declared that six months’ notice under section 21(1B) was unnecessary. Ms Bamber appealed. Livewest sought permission to rely out of time on the additional argument that service of the notice had created a statutory periodic tenancy. The central issues were whether the six-month notice provisions applied during the starter period and whether the tenancy’s status after service of the notice excluded those provisions.

1. Respondent’s notice. Permission was granted to Livewest to serve a respondent’s notice out of time. The breach was significant and there was no good reason for it, but the point had been argued below, was a point of law, had been identified in the skeleton argument, and could be addressed fairly by Ms Bamber. The costs consequences of the delay were borne by Livewest. The approach in Denton v TH White Ltd [2014] EWCA Civ 906; [2014] 1 WLR 3926 was applied.
2. Starter period. The court accepted that the tenancy was, by concession, a fixed-term tenancy for a term certain of at least two years before the notice was served. The existence of a break clause did not, by itself, prevent a tenancy from being a fixed-term tenancy. The six-month provisions nevertheless made no practical sense as governing a notice served during a starter period, because the landlord’s intentions at the expiry of the fixed term were irrelevant once the tenancy was being terminated during that period.
3. Effect of the notice. Exercising the starter-period break clause left Ms Bamber with a statutory periodic tenancy under section 5(2) of the Housing Act 1988. The tenancy was therefore no longer a fixed-term tenancy for a term certain of at least two years when possession proceedings were pursued. The court rejected the submission that section 21(1A)(a) should be read as referring to what the tenancy “was” before service of the notice.
4. Notice requirement and outcome. A statutory periodic tenancy could be determined by two months’ written notice under section 21(1), and one notice could both determine the tenancy and satisfy that provision. The appeal was dismissed. The issues arising from the proposed public-law defence remained to be determined.

• High Court (Queen’s Bench Division): The appeal from the Plymouth County Court was dismissed. Permission was granted for Livewest to serve a respondent’s notice out of time, with the related costs consequences falling on Livewest.
• Plymouth County Court: His Honour Judge Mitchell declared that Livewest was not required to give six months’ notice under section 21(1B) of the Housing Act 1988.