Mrs A Farrand v Ms V Ierardi Brentford County Court 24 June 2011 1UC03134

An interesting case which we assisted one of our members with, which if does nothing else, helps summarising the procedure to follow if an accelerated possession procedure doesn’t go according to plan. This case also illustrates that you could have a very straightforward claim for possession but experience severe delays (in this case 4 months).

Full compliments must go to the member for this one as at the ultimate hearing that was necessary, she was very nervous but did a sterling job.

Background

On 24 December 2009, the claimant landlord granted an assured shorthold tenancy to the defendants. The core terms of the tenancy were that it was for a fixed term from 24 December 2009 for a term of “12 months.” It thereafter continued as a statutory periodic tenancy (see s.5 Housing Act 1988). The rent was payable at the rate of £1200.00 in advance on the 24th day of every calendar month.
On 2 September 2010 a notice pursuant to section 21(1)(b) Housing Act 1988 was served on the defendants which required possession after 23 December 2010.

After the notice expired, the landlord made a claim for possession using the accelerated possession procedure on the usual form N5b where normally no hearing is required.

On 23 February 2011 (but not notified until 2 March 2011), District Judge Jenkins struck out the claim for possession and the reason for striking out the claim was: “The S21 states a date before expiry of the fixed term”

Under Civil Procedure Rule 55.16(4)(b) the claimant is allowed to apply to restore the claim within 28 days after the order (to strike out) is made, which was done by the landlord on 17 March 2011.

We had to guess at why the court struck out the claim and we assumed the following:

(1) That the District Judge was of the belief that because it is a 12 month fixed term tenancy that commenced on 24 December 2009, the last day of the fixed term was 24 December 2010 and therefore the notice expired one day too early (23rd) (this was the most likely) or,

(2) That the District Judge believes the last day of the fixed term is the 23rd but that a section 21(1)(b) notice may not expire on the last day and must instead expire sometime after the last day of the fixed term.

What is the last day of the fixed term?

“… the modern law is that since a yearly tenancy in strictness expires at midnight of the day before the anniversary of its commencement … [Yeandle v. Reigate B.C. [1996] 1 E.G.L.R. 20, following Sidebotham v. Holland [1895] 1 Q.B. 378.] A similar rule applies to weekly or monthly tenancies. [Crate v. Miller [1947] 2 All E.R. 45.]” [Para 17.255 Woodfall Landlord and Tenant]

In Yeandle v. Reigate B.C. [1996] 1 E.G.L.R. 20 it was stated by the Court of Appeal (Highlights added):

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