Getting the shorthold provisions wrong can be embarrassing and costly, warns Neil Hickman


If your landlord client has let his property on a shorthold tenancy, recovering possession should be straightforward. Yet it is surprising how often landlords and their advisers get it wrong, resulting in wasted fees and months of delay.



You can use the accelerated procedure, under parts 55.11 to 55.19 of the Civil Procedure Rules (CPR) and part II of the part 55 practice direction, where you have a shorthold tenancy granted in writing and you are seeking possession relying solely on the provisions of section 21 of the Housing Act 1988. If the tenant is in arrears with the rent, this may be worth mentioning in paragraph 8 of form N5B, as the court may take it into account in deciding whether to allow the tenant longer than 14 days to give up possession, but you cannot seek possession on the ground of rent arrears, or seek judgment for rent arrears, using the accelerated procedure.



Consider which part of section 21 is relevant. If you are dealing with a fixed-term tenancy which has not come to an end, section 21(1) applies. You simply need to give the tenant 'not less than two months' notice in writing', stating that possession is required. No particular form of notice is required. The notice can be given before, or on, the day on which the fixed term comes to an end (section 21(2)).



Quite often, a section 21(1) notice is given to the tenant immediately after the tenancy agreement is signed. There is nothing wrong with doing that - but beware of giving the notice before the tenancy agreement is signed. In Turpitt v Elizabeth (unreported) August 1998, Judge Tibber in Edmonton County Court held that a notice given in those circumstances was bad because there was no relationship of landlord and tenant when it was served.



Commonly, your tenancy will be a periodic tenancy, either granted as such or a statutory periodic tenancy arising on the ending of a fixed-term tenancy. In this case, you are concerned with section 21(4), which requires that the landlord gives the tenant 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... is required by virtue of this section'.



It is a remarkable feat of drafting to cram so many traps into so few innocuous-seeming words. 'Specified in the notice' means only that the date can be worked out by reading the notice. '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' is a valid form of words (Lower Street Properties v Jones [1996] 28 HLR 877). However, beware of writing 'on [date] or at the end of your period of tenancy...' - this is ambiguous and cannot be rescued by adding 'whichever is the later', because that may mean that the notice expires on a date which will

make it invalid.



The Court of Appeal in McDonald v Fernandez [2003] EWCA Civ 1219 held that a notice which required possession on 4 January, rather than after the end of the period of the tenancy on 3 January, was defective. Whether the disappointed landlord in that case, who found that his notice was wholly bad because it gave the tenant a day too much notice, will have agreed with Lady Justice Hale's cheery assessment that 'this is not a case where the consequences of failure to comply are particularly serious for landlords', may be debated.



So what is the last day of a period of the tenancy? In the simple case of a periodic tenancy with the rent payable on a Monday, the notice needs to expire on a Sunday. A trap into which it is easy to fall involves the statutory tenancy arising at the end of a fixed-term tenancy where the tenancy began on, say, the 15th of the month but the rent is payable on the 1st. The notice in such a case must expire on the last day of the month, not the 14th.



Do remember, by the way, that for a weekly or monthly tenancy, the notice needs to be at least two months, not eight weeks.



An interesting point arose in Church Commissioners for England v Meya [2006] EWCA Civ 821, where the fixed-term tenancy was for a year less a day, with an annual rent expressed to be payable by quarterly instalments. Was the periodic tenancy which followed it a quarterly tenancy (requiring a quarter's notice by reason of section 21(4)(b)) or a yearly tenancy (requiring half a year's notice)? The Court of Appeal said that one should consider the last payment of rent the tenant was obliged to make, and then ascertain the period covered by it. The last payment was payable in advance for the September quarter. So the period was a quarter and the periodic tenancy was quarterly.



How is the notice to be 'given'? There is an urban myth that notices in connection with tenancies may always be served by putting them through the letter-box of the property. That is correct if there is a clause to that effect in the agreement, but not otherwise - Wandsworth LBC v Atwell (1995) The Times, 22 April. In a judgment which has not received the attention it deserves, Lord Justice Glidewell observed that section 196(5) of the Law of Property Act 1925 (which allows service by delivery to the property) applied to notices 'required to be served by any instrument', but the tenancy agreement did not 'require' the service of the notice, and the Protection from Eviction Act 1977, which did require it, was not an 'instrument'.



An even more optimistic urban myth holds that posting the notice is good service. Again, this requires a clause to that effect in the agreement; and if the clause stipulates service by recorded delivery, do bear in mind that the use of ordinary first-class post will be ineffective.



District Judge Neil Hickman sits at Milton Keynes County Court and is joint general editor of Jordans' Civil Court Service