Ratcliffe v Parks 2006 Leeds Crown Court (High Court) 5DL03240 unreported
This is a case we helped one of our members with some years ago and we rely upon on many occasions. It is a very important High Court (so binding) authority for the purposes of seeking possession based on an assured shorthold tenancy that is (a) less than six months (as allowed since 1997) and (b) where court proceedings are commenced before six months from the date the tenant moved in.
Section 21(5) Housing Act 1988, as amended, says:
Where an order for possession under subsection (1) or (4) above is made in relation to a dwelling-house let on a tenancy to which section 19A above applies, the order may not be made so as to take effect earlier than—
(a)in the case of a tenancy which is not a replacement tenancy, six months after the beginning of the tenancy, and
(b)in the case of a replacement tenancy, six months after the beginning of the original tenancy.
This can cause confusion because many judges, advisers and practitioners believe this means that a section 21 notice must not expire until at least six months has elapsed, or that an assured shorthold tenancy agreement must be for at least six months.
David Ratcliffe (a member) let a property to Miss Parkes on 11 May 2005. The fixed term was for three months from 11 May 2005 to 10 August 2005. On 18 July 2005, Mr Ratcliffe gave Miss Parkes a notice under section 21(1)(b) Housing Act 1988 requiring possession of the dwelling house on the 21 September 2005.
Miss Parkes failed to give up possession and so a claim for possession using the accelerated possession procedure was issued.
As a defence was filed, a hearing was called and on 23 November 2005, Deputy District Judge Reed refused to order possession on the following grounds:
The section 21 notice given in this case had been set to expire, (as the Deputy District Judge put it), before 6 months of the tenancy had expired. And, “…That it does not expire on a rent day that is more than two [months] after the day on which it was served.”
The landlord, Mr Ratcliffe appealed which was heard in the High Court on 14 March 2006.
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