Section 21(1) of the Housing Act 1988 states that:
On or after the end of a fixed term assured shorthold tenancy, the court can order possession of the property if the below applies:
(a) The assured shorthold tenancy has ended and no other tenancy exists other than a periodic tenancy;
(b) The landlord has given to the tenant not less than two months’ notice stating that he requires possession of the property.
Section 21(4) of the Housing Act 1988 states that:
A court shall make an order for possession of a property on an assured shorthold tenancy which is a periodic tenancy if the court is satisfied;
(a) that the landlord has given to the tenant a notice in writing stating that, after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the property is required by virtue of this section; and
(b) that the date specified in the notice under paragraph (a) above is not earlier than the earliest day on which, 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.
In Spencer v Taylor  EWCA Civ 1600, the Court of Appeal considered the application of sections 21(1) and 21(4) of the Housing Act 1988 .The court was asked to decide which type of section 21 notice should be served where a fixed term assured shorthold tenancy had expired and the tenant had remained in occupation of the property on a statutory periodic tenancy.
Facts of the case
The landlord granted the tenant a six month assured shorthold tenancy beginning on a Monday, and on the expiry of the fixed term, a weekly statutory periodic tenancy arose, meaning that a Sunday would have been the last day of the tenancy.
The landlord served notice on the tenant on 18 October 2011 requiring possession either ‘(a) after 1 January 2012 or (b) at the end of the period of tenancy which will end after the expiration of two months from the service of the notice’.
A notice under section 21(1) does not have to expire on a particular date as long as at least two months notice has been given, whereas a notice under section 21(4) must expire on the last day of a tenancy period specifying that possession is required after that day.
The 1 January 2012 was a Saturday which was not the last day of the tenancy and two months after the service of the notice would have been 18 December 2011. The notice therefore gave both a fixed date and a formula resulting in a different date
The Court of appeal held that the notice was valid as section 21(1) applied and two months notice had been given. The Landlord was not required to specify a date on which the tenancy would end.
Landlords will welcome this decision as it is now clear which type of section 21 notice should be served once a fixed term assured shorthold tenancy has expired and the tenant remains in occupation on a statutory periodic tenancy. The Landlord does no longer need to comply with the requirements of section 21(4). It would appear that section 21(4) notices will now only be required for assured shorthold tenancies where the periodic tenancy was granted from the outset.
Commercial Property Department
0113 227 9224