Time to rebuild the small print
Speaking in the House of Lords on 25 July 1988 in the debate on what was to become the Housing Act 1988, the Earl of Caithness, on behalf of the then government, said: ‘One of the points frequently made about the old-style shorthold tenancy procedure [i.e. the protected shorthold under the Housing Act 1980] is that the requirements for giving notice to the tenant are needlessly complicated. We want to get away from that in this legislation.’
One result of that desire to get away from needless complication (which I applaud) was section 21(4) of the 1988 act. Section 21 of the 1988 act, headed Recovery of possession on expiry or termination of assured shorthold tenancy, provides that:
(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 I 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 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.
(4) Without prejudice to any such right as is referred to in subsection (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) [which provides that the service of a notice to quit is of no effect in relation to a periodic assured tenancy], 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.
Section 21(4) is a trap for the unwary. Suppose the landlord, instead of writing that he requires possession after 3 January, writes that he requires possession on 4 January? There is no conceivable prejudice to the tenant, but the notice is bad. These are the precise facts of McDonald & Anor v J Fernandez & Anor  EWCA Civ 1219,  1 WLR 1027. On the facts of that case - the contractual tenancy was from 4 September 1999 to 3 March 2000, with the tenants explicitly remaining as statutory periodic tenants from the 4th of each month to the 3rd of the following month - it is perhaps understandable that Lady Justice Hale, as she then was, felt able to say that: ‘The subsection is clear and precise. Nor is it difficult for landlords to comply. They know when the period ends.’
But what of a tenancy for one year from 19 August, with the rent expressed to be payable in advance on the first day of the month? Must the notice expire on the last day of a month, or the 18th?
I am probably not giving away any state secrets if I say that informal discussion of this (admittedly, badly drafted) tenancy saw several judges arguing for each of the two possible answers, while counsel appearing in the case sheepishly revealed that members of his chambers were split 2-2.
An even worse problem arose recently from a case where the contractual tenancy was for six months, with the rent being expressed as payable four-weekly from inception, but in fact the rent under both the contractual tenancy and the ensuing statutory tenancy was demanded and paid on a monthly basis. When is the ‘last day of a period’ of that tenancy? Frankly, your guess is as good as mine.
It is difficult to see any useful purpose served by the technicality of section 21(4). Often the only foolproof approach for the landlord would be to serve a notice expiring ‘at the end of the period of your tenancy which will end after the expiry of two months from the service upon you of this notice’, in accordance with Lower Street Properties v Jones (1996) 28 HLR 877. And how many tenants receiving such a notice will have the faintest idea when they are meant to be out of the premises?
So section 21(4) encourages landlords to use a form of notice the tenant will not understand, thereby prejudicing tenants; as for the landlord, as Lord Justice Kennedy observed in Lower Street: ‘There is an obvious risk of a minor arithmetical error giving rise to the argument that the notice is invalid... ’
So, given that this subsection potentially prejudices both parties and runs contrary to the government’s stated objective of getting away from needless complication, is there, I ask, any useful purpose served by the subsection’s existence in its present form? Does section 21(4)(a) really need to say more than that two months’ notice in writing must be given (the words ‘…by virtue of this section’ are another potential trap with no discernible purpose)?
In 2003, the Law Commission’s report, Renting Homes, recommended that: ‘9.57 … a landlord who wishes to use the notice-only ground must give at least two months’ notice of intention to take proceedings. As with other notices, the effective period of the notice should not be tied to the day on which rent is due. The implementation of the commission’s report as a whole is, of course, a political decision on which it would not be appropriate for me to express any view. But, writing as one who continually has to try to apply section 21 in cases brought by litigants-in-person, I suggest that this particular recommendation has no possible disadvantages and that its implementation is long overdue.
District Judge Neil Hickman sits at Milton Keynes County Court. He is the general editor of Civil Court Service (Jordans)