Where a section 21 is served in relation to a tenancy in England and that tenancy was granted on or after 1 October 2015 (see later), the section 21 notice will in most cases simply need to be a straight 2 months notice (plus an additional recommended four days for service).
Section 21(4)(a) is the type of section 21 notice served when the tenancy is periodic. The fairly recent case Spencer v Taylor means that where the tenancy went statutory periodic after a fixed term had ended, there was no need to make the expiry of the notice ‘the last day of a period of the tenancy’. However, that case only applied to a statutory periodic tenancy. It didn’t therefore apply to a contractual periodic tenancy after a fixed term (like the Guild tenancy agreements) nor to a periodic tenancy from the outset for example a verbal tenancy.
This new section 35 changes this and essentially makes the Spencer rule apply in all cases. Section 21Housing Act 1988 will have a new sub-section 4ZA added which reads-
“(4ZA) In the case of a dwelling-house in England, subsection (4)(a) above has effect with the omission of the requirement for the date specified in the notice to be the last day of a period of the tenancy.”
As a result, section 21(4)(a) notices will not need to expire on any particular date when served in connection with a tenancy granted on or after 1 October 2015 (see later). All section 21(1)(b) notices (which are served during the fixed term) have no requirement to expire on any particular date.
This should make serving a section 21 notice much easier. There is also to be a prescribed form which is discussed in another article.
It is worthy of note that section 21(4)(b) will remain which provides –
that the date specified in the notice under paragraph (a) above is not earlier than the earliest day on which, apart from section 5(1) above, the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the notice under paragraph (a) above.
This has the effect that where the rent is quarterly (for example) the notice will have to be at least three months to expiry, rounded up to at least the day before the next rent is due. A six monthly rental would require at least six months notice (rounded up to the next day before the rent is due).
This is quite an unusual situation because for the first time we can think of in some time, the position of the landlord is better than the tenants! A tenants notice must continue to be at least a month (on a monthly rent) and expire either the day before the rent is due or on the day the rent is due. Any other date will render the notice invalid (unless the landlord chooses to accept the invalid notice which they can).