Landlords of residential properties have plenty of legal issues to worry about, but 2014 has seen a welcome simplification for them in one area; the service of possession notices.
In the unanimous Court of Appeal decision in Spencer v Taylor at the end of 2013, leading property law judge Lord Justice Lewison considered the “no fault” two month possession notices that can be served under section 21 of the Housing Act 1988.
Standard practice had been that if the tenancy’s fixed term had expired, then the minimum two month possession notice had to tie in exactly with the periods of the continuing tenancy.
That was often not a straightforward issue, particularly where the rent payment arrangements had changed. And it regularly meant notice having to be given of nearer three months.
LJ Lewison decided however, that so long as there had been some fixed term, even if it had expired and succeeded by a periodic tenancy, then the section 21 possession notice need not be tied in with the ongoing tenancy periods.
He adjudged that that was only necessary if there had never been a fixed term to start with; i.e. if the tenancy had been periodic from the outset.
This decision has been welcomed with open arms by landlords and their solicitors. It makes the preparation of possession notices where the fixed term has expired more straightforward. Two months’ notice must still be given, but without having to worry about how the tenancy periods run.
Legal commentators had been wondering for some years whether this could be the correct interpretation of the statute. It would have been a brave (and foolhardy) solicitor to advise his client to risk not tying in a possession notice to the tenancy periods.
Landlords must still exercise care. Possession notices must be prepared and served correctly. In particular, they can still be invalidated for non-compliance with the strict and technical deposit protection rules.
The courts and tenants’ advice agencies (and local authority housing sections) are very alert to those rules. It may make a pleasant change to have a pro-landlord legal development, but it is still advisable to seek professional solicitor advice on possession notices.
For more information on this subject, please contact John Carter, solicitor with Sumner and Tabor, on 01442 872311.