Spencer v Taylor  EWCA Civ 1600
We’ve had a note on this case for a little over a week now which contained a tantalising comment in relation to section 21 notices. The comment was quite unbelievable and seemed to suggest that a section 21(1)(b) notice could be served anytime (more on this later) so we have been waiting for a transcript of the decision before writing. The comment wrote:
Although expressed to be a notice under s.21(4), the notice met all the requirements for s.21(1) and possession could be ordered under that provision. In any event, the notice was also valid under s.21(4). The first date was clearly wrong, but the formula gave the correct date.
We are still waiting on a transcript  from our subscription service but we now A transcript is now available and we have an article by the Nearlylegal blog to work off who have seen a transcript.
Mr Spencer granted an assured shorthold tenancy to Ms Taylor on 6 February 2006 for an initial fixed term of 6 months. No further agreement was entered into and so the tenancy continued as a statutory periodic tenancy.
In October 2011, the landlord (Mr Spencer) served a notice under section 21(4) stating that possession was required “… (a) after 01/01/2012 or (b) at the end of your period of tenancy which will end next after the expiration of two months from the service upon you of this notice.”
The landlord accepted that the date of 1 January 2012 was wrong but relied upon the saving formula (as has been accepted in many cases). The county court agreed with the landlord that the notice was valid and the tenant appealed.
Which section 21 notice?
Generally, commentators take the view that a section 21(1)(b) notice is to be served during the fixed term and a 21(4)(a) notice during any periodic term. We have followed this and all our guidance uses this method. However, we’ve not been entirely convinced it was correct mainly as a result of the fantastic book co-authored by Gary Webber namely Residential Possession Proceedings. This book provided an alternative view which we wrote about back in 2009.
Basically, section 21(1) states (in a shortened version) that the court shall order possession on or after the coming to an end of an AST which was a fixed term tenancy … (a) if the tenancy has come to an end and only a periodic (including statutory periodic) tenancy is in existence and, (b) the landlord has given at least 2 months in writing requiring possession.
Subsection (2) goes onto say (highlights added):
A notice under paragraph (b) of sub‑section (1) above may be given before or on the day on which the tenancy comes to an end and that sub‑section shall have effect notwithstanding that on the coming to an end of the fixed term tenancy a statutory periodic tenancy arises.
Note that subsection (1)(b) only says that that type of notice may be given during the fixed term. It does not prohibit it’s use in a periodic tenancy such as a statutory periodic tenancy. In addition, sub-section (1) allows the court to order possession on or after the fixed term comes to an end.
Therefore, we have always considered that a section 21(1)(b) might be the correct notice to be served during the fixed term AND where the tenancy was a fixed term tenancy and now periodic as provided for in sub-section (1). However because of the several court cases including Macdonald v Fernandez, it was never wise to advise anything other than 21(1)(b) for service during term and 21(4)(a) for service during periodic.
If a 21(1)(b) can be served during both fixed and period, why is section 21(4) needed you might ask? Is it redundant? No, is the answer! Section 21(4) is still needed for a tenancy which was periodic from the outset (such as a verbal tenancy for example) and a couple of other scenarios (for which see the article from 2009 linked above).
Spencer v Taylor
It seems, the Court of Appeal has ruled based upon these arguments first suggested by the Residential Possession Proceedings book. The NearlyLegal blog (who have seen the transcript) states:
… In fact s21(2) was described as permissive rather than as proscriptive. S21(2) states that an s21(1)(b) notice “may be given before or on the day on which the tenancy comes to an end” (emphasis mine). It does not say that such a notice must be given or can only be given but rather that it may be given. LJ Lewison therefore read this as suggestive as opposed to requiring an outcome.
And continues …
If s21(2) allows an s21(1)(b) notice to be given in a periodic tenancy then does the wording of s21(1) allow for the same conclusion? LJ Lewison felt that it did. S21(1)(a) merely requires that the fixed term of any AST has ended and that no further fixed term has come into existence. S21(1)(b) simply requires that two months notice has been given. Nothing in s21(1) specifies that the notice is only applicable to a fixed term tenancy or cannot be given during a periodic tenancy.
Therefore, the Court of Appeal has held that the notice was valid because the date of 1 January 2012 was more than two months from the date the notice was served and that this is all that was required.
The notice in this case contained in addition to the date a commonly used saving formula. Although the point was no longer relevant, the court commented that the saving clause did make the notice valid despite the date of 1 January 2012 being wrong. This outcome is nothing new and is well established law
We are just going to pause for breath with this one and wait until we see the transcript. After which, we will update this article with more detail if necessary.
We are currently considering our position in relation to guidance and mainly whether we will change it to say that a section 21(1)(b) notice can be served both during the fixed term and during a periodic tenancy (which was a fixed term).
It must be said our first instinct is that we will be suggesting this revised guidance because a 21(1)(b) notice is much easier to serve as there is no requirement to expire the notice on any particular date.
We will report back in due course but not sooner than when we’ve seen and studied the case further.
A final question
Another little point not covered by this case but we’ll throw it out there for good measure is: when can court proceedings in relation to a section 21 notice be started?
The usual thinking is that the notice has to first expire before possession can be sought. However, section 21(1) provides that the court shall order possession … on or after … the coming to an end of an assured shorthold tenancy.
If a notice is given during the fixed term, how is it it ever possible for the court to order possession “on” the coming to an end of the fixed term if proceedings can’t be brought before the end of the term (and therefore before expiry of the notice)?
It is respectfully submitted that the only way this is possible is if court proceedings can be commenced before expiry of the section 21 notice. Certainly if served during the fixed term anyway.
For the avoidance of doubt, this final question is not advice or guidance. It’s just a thought we’ve had for a few years for you to ponder.
- We are disappointed with Westlaw who provide our Woodfall Landlord and Tenant subscription at extremely great expense. We know they have a transcript but it’s still even a week later not available on their service. ↩