The tenant in the case of Spencer vs. Taylor has had permission to appeal to the Supreme Court refused.
This means that the Court of Appeal decision stands and therefore, where an AST has had a fixed term and a statutory periodic tenancy has arisen, there is no need to use a s.21(4)(a) notice, or have a date of expiry at the end of a period of the tenancy. A section 21(1)(b) notice providing at least two months’ notice will suffice.
Towards the end of 2013 the case of Spencer vs. Taylor created a great deal of debate and disagreement amongst commentators and cast some doubt over the interpretation of s21 of the Housing Act 1988.
The case came before the Court of Appeal in November last year and considered the validity of a s21 notice used in respect of a tenancy established in 2006 between the tenant (Miss Taylor) and her landlord (Mr Spencer), having become periodic and possession sought in 2012 (notice served in 2011).
Having already been judged valid by a lower court, this appeal focussed on whether the notice served by Mr Spencer fulfilled the criteria set out by the Housing Act – even though the date specified for possession did not coincide with the last day of the period of the tenancy as common understanding would have it when relying on s21(4).
After reviewing the legislation, Lord Justice Lewison determined that the notice was indeed valid, having met the criteria established in s21 of the Housing Act.
Section 21 of the Act states:
(1) Without prejudice to any right of the landlord under an assured shorthold tenancy to recover possession of the dwelling house let on the tenancy in accordance with chapter one above, on or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy a court shall make an order for the possession of the dwelling house if it is satisfied -
(a) that the assured shorthold tenancy has come to an end and no further assured tenancy, whether shorthold or not, is for the time being in existence other than an assured shorthold periodic tenancy, whether statutory or not and -
(b) the landlord, or in the case of joint landlords at least one of them, has given to the tenant not less than two months notice in writing stating that he requires possession of the dwelling house.
(2) A notice under paragraph (b) of sub-section (1) above may be given before or on the day on which the tenancy comes to an end and that sub-section shall have effect notwithstanding that on the coming to an end of the fixed term tenancy a statutory periodic tenancy arises.
(3) Where a court makes an order for possession of a dwelling house by virtue of sub-section 1 above, any statutory periodic tenancy which has arisen on the coming to an end of the assured shorthold tenancy shall end without further notice and regardless of the period in accordance with section 5(1A).
(4) Without prejudice to any such right as is referred to in sub-section 1 above, a court shall make an order for possession of a dwelling house let on an assured shorthold tenancy which is a periodic tenancy if the court is satisfied -
(a) that the landlord, or in the case of joint landlords at least one of them, has given to the tenant a notice in writing stating that after a date specified in the notice being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the dwelling house is required by virtue of this section, and -
(b) that the date specified in the notice under paragraph (a) above is not earlier than the earliest day on which, apart from section 5(1) above, the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the notice under paragraph (a) above.
LJ Lewison stated that in this case s21(1)(a) and (b) were satisfied i.e. no tenancy other than a statutory periodic had arisen following the initial AST and that a minimum of two months’ notice had been given.
The area which had been subject to debate prior to this appeal is whether the notice could be valid as the date given for possession did not coincide with the end of the period as required by 4(a). Crucially, LJ Lewison determined that use of the word ‘may’ in s21(2) is permissive rather than restrictive i.e. a landlord may rely on s21(1) prior to the end of the fixed term, but this does not preclude his or her use during a statutory periodic tenancy. As such the date given for possession (provided it gives at least two months’ notice) is irrelevant.