A Decision to Please Landlords and Letting Agents

28th February 2014

A Decision to Please Landlords and Letting Agents

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Landlords and letting agents should welcome a recent court decision which resolves the previous uncertainty as to which type of section 21 notice should be served upon a tenant at the end of a tenancy.

In the recent case of Spencer v Taylor [2013] EWCA Civ 1600 the Court of Appeal has made clear the type of notice to be used where a fixed term Assured Shorthold Tenancy (AST) has ended and the tenant remains in occupation under a periodic tenancy.

Prior to this case there was a question as to which of the 2 types of section 21 notice should be served. The practical difference between the 2 types of notice is that a notice under section 21(4) (Type A Notice) must expire on the last day of a tenancy period specifying that possession is required after that day, whereas a notice under section 21(1) (Type B Notice) does not have to expire on a particular date, it simply requires the landlord to give the tenant 2 months notice and can expire on any date.

The problems encountered by landlords, letting agents and solicitors to date have invariably arisen as a result of an incorrect expiry date within the s.21 notice.

In this recent case Lord Justice Lewinson held that so long as a tenancy was granted for a fixed term, a Type B Notice can be served whether it is during the fixed term, or the subsequent periodic part of the tenancy.

This means that a Type A Notice will now only be used where the tenancy was granted as a periodic tenancy all along.

Lord Justice Lewinson, who presided over the case, went on to provide further guidance in respect of the form of the Type A Notice. In particular he held that even where the date within the notice is incorrect, where the notice also contains a saving formula which confirms that the notice will expire at the end of the period of the tenancy that falls after 2 months of the date of the notice, the notice will be deemed to be valid.

The decision should make service of notices easier and means there is far less scope for an error to invalidate the notice and prevent the landlord regaining possession of its property.

At Gotelee we have the experience to assist with any enquiries relating to tenancies, the drafting and service of notices and possession proceedings, usually on a competitive fixed fee basis. For more information contact Holly Sadler, our Solicitor specialising in Property Disputes.

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