Livewest Homes Limited (Formerly Known As Laverty Limited) v Sarah Bamber

For an assured shorthold tenancy granted by a private registered provider of social housing for a fixed term of at least two years, the six-month notice requirement in the Housing Act 1988 applies when the fixed term expires by effluxion of time and the landlord does not propose renewal. It does not apply where the landlord ends the tenancy earlier under a break clause or by forfeiture. The word is identifies the relevant category of tenancy; it is not assessed only when possession proceedings are issued or heard. A break notice may also satisfy the ordinary two-month statutory notice requirement. The court may adopt a necessary implication to correct an obvious drafting difficulty where the statutory purpose and intended substance are sufficiently clear.

Ms Bamber held a seven-year assured shorthold tenancy from Livewest, an RPSH, subject to a starter period and a landlord’s break clause. Livewest served two months’ notice during that period and sought possession. The County Court held that six months’ notice was not required. Dingmans J dismissed Ms Bamber’s appeal: [2018] EWHC 2454 (QB). The central issue before the Court of Appeal was whether section 21(1B) of the Housing Act 1988 applied when a fixed-term tenancy of at least two years was ended early under a break clause, and whether such a tenancy was granted for a term certain.

1. Appeal dismissed. The Court of Appeal, in a judgment delivered by Patten LJ and agreed by King LJ and David Richards LJ, held that the six-month notice condition did not apply to Livewest’s early exercise of the break clause.
2. Section 5(1)(c) of the Housing Act 1988 recognises that a landlord must first exercise an effective contractual break clause before obtaining possession of a fixed-term tenancy. A notice complying with the ordinary two-month requirement in section 21(1)(b) may perform both functions. The six-month notice requirement in section 21(1B) concerns the non-renewal of a fixed term at its contractual expiry.
3. The reference in section 21(1A) to a tenancy which is a fixed term of at least two years identifies the type of tenancy to which section 21(1B) applies. It does not require the tenancy still to be fixed-term when proceedings are issued or heard. That construction would make sections 21(1A) and (1B) inoperable.
4. Section 21(1B) therefore operates as a condition of possession only where the fixed term expires by effluxion of time. It does not apply where the tenancy is ended earlier by a break clause or forfeiture. The break notice itself will ordinarily inform the tenant that possession is sought.
5. In construing the provisions, the court applied the approach in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586. A court may correct an obvious drafting difficulty only where the statutory purpose, the inadvertent failure to give effect to it, and the substance of the intended provision are sufficiently clear. The alternative literal constructions would either over-apply or nullify the provisions.
6. Patten LJ expressed the alternative view that a fixed term with a break clause remains a tenancy for a term certain: that expression concerns the certainty of the stipulated expiry date, not certainty that the term will last throughout. The question whether late service of a section 21(1B) notice could cure a failure to serve it in time was expressly left open.

• Court of Appeal (Civil Division): dismissed Ms Bamber’s appeal.
• High Court, Queen’s Bench Division: Dingmans J dismissed the appeal from the preliminary ruling of HH Judge Mitchell: [2018] EWHC 2454 (QB).
• County Court: HH Judge Mitchell held that Livewest was not required to serve six months’ notice under section 21(1B).