Section 21 Notices get easier

The Section 21 Notice has not been the easiest of things for landlords to get right. Using the right one and then getting the dates right have caused numerous issues. There have been many cases where a landlord’s attempt to regainpossession of a rental property has been thrown out of court because it is incorrectly completed or has a technicality on the date relating to the expiry of the notice.

The Chairman of the London Association of District Judges maintains there are issues in 7 out of 10 occasions in his experience.

I don’t make any claims to be a lawyer, so in essence my interpretation of the recent court case Taylor v Spencer is a simplistic one. For more detail on the judgment at the Nearly Legal website.

In essence, the case highlights how important a proper judgment is to clarify the statutes ( which are often so poorly drafted – look at the recent confusion on the tenancy deposits)

Since the original draft of the legislation way back in 1988, it appears that the lack of clarity has been festering unchallenged, leaving County Court judges to use their commons sense in interpreting the wording and coming to a view.

Now Lord Justice Lewison and two other High Court Judges have taken their fine pointed legal pen and looked in detail at the way the legislation was worded. In essence the Judge has looked at the statute and decided that the form Section s21(1)(b) is the one to be used if the tenancy has been a fixed term at any stage during the life of the tenancy.

For the vast majority of tenancies this will be the case as very view are set up as a periodic tenancy from the outset. In these cases the Section 21 notice required is still the S.21 (4) (a).

For the legally attuned it also has implication for previous case law in that the precedents set down by Church Commissioners v Meya, Macdonald v Fernandez, and Lower St Properties v Jones are also all irrelevant as they all deal with aspects of s21(4)(a) notices.

Saving provision (clauses)

Another significant outcome of the Court of Appeals decision was the acceptance of a saving clause in the section 21 notice. As we are too aware getting the dates right when preparing a section 21 notice can be tricky.

Many section 21 notices including the free one provided within the Property Manager software include a saving clause.

Our states:
“OR 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”

This is there should the landlord get the dates wrong and hope to ensure that providing that you have given the tenant a full 2 months notice that your claim will be upheld by the Courts. These saving clauses have recently being validated in decisions at the High Court Elias vs Spencer

What Lord Justice Lewison has clarified is the use of this saving clause and said in an indirect way that if a landlord gets the dates wrong but backs it up with a saving clause that is clear that the tenant has been given 2 months notice then as long as it was clear which was the ‘primary’ date and which was the secondary date then this is OK.

The implications of the case

In essence we have seen common sense prevail over legal dogma. More landlords should now succeed in future when using a section 21 notice providing they have given the required 2 month notice period. In theory the clarification and simplification of the law should mean less work for solicitors and make it easier for a landlord to do it all themselves (time will tell!). Unfortunately, those landlords who have suffered at the hands of courts interpreting the legislation differently will not be able to over-turn previous judgments (damn shame!).

I would however caution landlords from relaxing too much. The law can be an ass, and until we see the way County Court Judges who have been entrenched in their ways respond; I would still err on the side of caution when submitting a section 21 notice and specifying their dates.

View a full transcript of the case here.

For more guidance on section 21 notices and gaining possession:

Possession : section 21 notices
How do I get a free section 21 notice?
How do I serve a section 21 notice?
Section 21 notice vs section 8 notice
Should I serve a section 21 notice at the start of a tenancy?

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