Assured shorthold periodic tenancy - possession orders

McDonald v Fernandez [2003] EWCA Civ 1219; [2003] Gazette, 11 September, 33

In the case of an assured shorthold periodic tenancy, the court is obliged to grant a possession order, if the landlord can show that he has served a written notice complying with section 21(4) of the Housing Act 1988.

There is no prescribed form for the notice, but it must satisfy certain requirements.

In particular, it must specify a date after which possession is required 'being the last day of a period of the tenancy'.

That date must also not be earlier than two months after the date the notice was given.

Furthermore, it must not be earlier than the earliest date on which the tenancy could have been brought to an end by notice to quit: for example, if the tenancy is a quarterly tenancy, one quarter's notice must be given.

In McDonald v Fernandez, the tenants held an assured shorthold tenancy.

After the term of the tenancy expired, the tenants remained in possession as statutory periodic tenants.

The periodic tenancy ran from the fourth of each month to the third of the following month.

The landlords served a section 21(4) notice and brought possession proceedings.

The notice specified 4 January, 2003, the first day of a period of the tenancy, as the date for possession.

The first argument relied on by the landlords was based on the rules regarding common law notices to quit.

At common law, a notice to quit can be expressed to expire on either the first or the last day of the period of a tenancy.

The Court of Appeal held that this rule had no application to a statutory notice under section 21(4).

The Act was clear that the last day of the period must be specified.

The landlords also argued that it was sufficiently clear to fulfil the purpose of the statute.

They relied on the House of Lords' approach in Mannai Investment Co Ltd v Eagle Star Assurance Co Ltd [1997] AC 749, HL.

In Mannai, the House of Lords considered the validity of a notice served under a break clause which specified the wrong date.

The Lords held that a notice is valid - even if it contains an error - where it is sufficiently clear and unambiguous as to leave a reasonable recipient in no reasonable doubt as to how and when it was intended to operate.

The principle in Mannai has been extended to various statutory notices in landlord and tenant law.

However, the Court of Appeal rejected the landlord's argument in this case because the notice did not comply with a statutory requirement.

Therefore, this case resolves a point which has been argued on many occasions in the county court but on which definitive authority was lacking.

Landlords must ensure that the correct date is provided.

Where there is uncertainty as to the period of the tenancy, as may well now be the case with informally created assured shorthold tenancies, landlords should note the earlier Court of Appeal decision in Lower Street Properties v Jones (1996) 28 HLR 877, CA.

In that case, the court held that a notice is valid if it includes a saving provision to the effect that possession would be required after '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'.

By Andrew Dymond, barrister, Arden Chambers, London