Please see our article on recent council tax rules which will assist with deciding what length of fixed term to give.

 

Firstly, happy new year to everyone!

We’ve been a little quiet during the first week of 2011 because we have lots of cases that were started at the back end of last year and are all coming together right now. Hopefully things will calm down soon!

Most of these case aren’t particularly interesting but this one I thought worthy of a quick report.

Philpott v Isaac Torquay & Newton Abbot County Court 0TQ01606 7 January 2011

Background

On 16 February 2010 the claimant landlord (Mr Philpott) granted an assured shorthold tenancy to the defendant (Mr Isaac) for a flat in Torquay. The tenancy ended on the 15 May 2010. Subsequently the tenancy became a statutory periodic tenancy (see section 5 Housing Act 1988).

The core terms of the tenancy are that it was for a fixed term of 3 months and the rent was payable in advance on the 16th day of every calendar month.

On 30 March 2010 (after one month into the term), the landlord served on the tenant a notice by virtue of section 21 Housing Act 1988. The notice required possession after 15 June 2010.

During and after expiry of the notice, negotiations were held between landlord and tenant to try and get the tenant to pay the rent etc. The local authority were kept informed of progress. Ultimately, it was decided by the landlord that there was no other option but to seek possession and the landlord informed the local authority of his intentions.

On 8 November 2010 (prior to possession proceedings being commenced), Torbay Council wrote to the landlord and stated:

“On looking at the assured shorthold tenancy that was issued to Mr Isaac on 16 February 2010, I can see that you have issued a 3 month tenancy. I must inform you that this is incorrect and that legally, any assured shorthold tenancy agreement must be for a minimum of 6 months.

I have therefore advised Mr Isaac, that the notice seeking possession, that was issued to him is incorrect as even though the tenancy states that it is a 3 month tenancy, it is in fact a 6 month assured shorthold tenancy and you should be aware that a section 21 notice cannot be issued in respect of such a tenancy if possession is required before the initial 6 month term of the tenancy.”

No defence was filed and the local authority told the landlord that they “work closely with the court”. It seems a coincidence that despite no defence been filed that the court in this case ordered a hearing? I would comment that if the local authority have discussed this case privately with the court (as seems to be the case) this is totally unacceptable. There is no place in this modern day for private discussions behind closed doors between councils and courts!

It seemed as though the local authority had confused the provisions of the Housing Act 1988 and in particular it seems the local authority were not familiar with the changes that were made to the Housing Act 1988 by the Housing Act 1996 which took effect on 28 February 1997 (which is why the claim form for possession distinguishes between tenancies before and after this date).

The Housing Act 1996 inserted a new section “19A” into the Housing Act 1988 which applies to all new tenancies created on or after 28 February 1997. This new section 19A removed the requirement of any minimum fixed term of 6 months (or any fixed term for that matter) which was previously contained in section 20 Housing Act 1988 (which still exists for pre 1997 tenancies).

In addition, the Housing Act 1996 made changes to section 21, prohibiting the court from making an order for possession before six months from the first tenancy. However, this has no bearing on when a notice may be served or when it expires.

Helpfully, we had already done a case in 2006 which was almost identical [Ratcliffe v Parks 2006 unreported], on appeal in the High Court (therefore a court of record decision).

Background to Ratcliffe v Parks:

At the first hearing, the Deputy District Judge refused to order possession on two grounds namely, the section 21 notice given had been set to expire, as the Deputy District Judge put it, before 6 months of the tenancy had expired and that the notice did not expire on a rent day that is more than two [months] after the day on which it was served.

In respect of the first ground namely, that the notice was set to expire too soon, on appeal in the High Court, His Honour Judge Langan QC explained:

Here in my judgment the Deputy District Judge fell into what, regrettably, might be described as an elementary error. He confused the provisions of section 21(1) which deals with the amount of notice to which the tenant is entitled with the provisions of section 21(5) which bars the court from making an order to take effect earlier than 6 months after the beginning of the original tenancy. Section 21(5) has no bearing whatever on the way in which a notice under section 21(1) must be given. These provisions deal with entirely separate matters. Provided that notice is given in accordance with section 21(1)(b) the court is bound to make an order for possession if all other necessary conditions are satisfied. Section 21(5) merely details the court from making an order to take possession before a specified date.

Judgment

This was all put to the court and the court ordered Mr Isaac to give up possession of the property.

It is our intention to now make a formal complaint against the local authority against the advice they gave and we shall be seeking that the local authority pay compensation to the amount of at least the £150.00 court fee that would not have been needed had they given the tenant accurate advice and found alternative accommodation for him rather than attempting to defend the proceedings.

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