District Judge Stephen Gerlis navigates his way through the perils of serving a valid notice in assured shorthold possession proceedings


Assured shorthold possession proceedings are a veritable minefield. Not only are there procedural hurdles to get over, but also complex and exact statutory issues.


For a start, there are three types of notice. The first is a notice requiring possession of a fixed-term tenancy. This must be for a minimum of two months and may be given at any time during the currency of the tenancy, including the last day.


The second is a notice in respect of a periodic tenancy, including a fixed-term tenancy that has expired but not previously brought to an end by a notice as above. This notice must be for a minimum period of two months and must expire after the last day of a period of a tenancy. The third is a notice based on arrears of rent or some other breach of the tenancy conditions.


It is the first two notices that seem to cause most problems and, in particular, that requiring possession of a periodic tenancy. The relevant date must be hit dead on - get it one day early or one day late and the notice is invalid. Usually, a printed form of notice has a saving clause containing words to the effect 'or after such day as is the last day of the tenancy occurring two months after the date of service of this notice'. These words ought to protect a landlord when he gets the actual date wrong.


The problem arises with home-made notices or where, as frequently occurs, a landlord uses a fixed term notice to terminate a periodic tenancy - in which case the saving clause will not be there.



Section 21(4) of the Housing Act 1998, says a notice for a periodic tenancy must state that possession is required 'after a date specified in the notice, being the last day of a period of the tenancy'. In Fernandez & Anor v McDonald & Anor [2003] EWCA Civ 1219; [2003] 4 All ER 1033, the last day of the tenancy fell on the third of the month. The claimants served a notice on the defendants requiring possession on the fourth of the month. Even though that makes sense, being the day after the last day of the tenancy, the Court of Appeal had no hesitation in saying the notice was bad.



The statute requires the notice to specify a date that is the last day of the period and not a date on which the landlord requires possession - it is not a notice to quit. The Court of Appeal said that the defect can be easily cured by a valid notice given once the defect has been pointed out. As this may not be until two months' notice have been given plus the several weeks before the defect is highlighted by the court, that may be of little comfort to the landlord. The secret is to get it right in the first place.



District Judge Stephen Gerlis sits at Barnet County Court and is a Recorder