Here is a blog clinic question from Richard (not his real name) who has a question about a section 21 notice:
My query relates to a statutory periodic AST and service of a S.21(4)(a) notice.
i.e. A tenancy commenced on 11th June 2007 for a fixed term of 36 months. The agreement has now expired and has become statutory periodic.
The contractual rent is £400 per calendar month due on the 1st of each calendar month, although paid four-weekly by housing benefit.
The tenant has been served with a S.21 notice requiring possession which expires on the 10th April 2012. The notice states that “possession is required by virtue of S.21 of the Housing Act 1988”, but does not state a subsection.
Is this notice correct?
I have looked at a case called Meya and that refers to the rent period i.e. the above notice would be incorrect as the periods run from the 1st of the month until the end of a month. I know that housing benefit are paying every four weeks but I don’t believe that will change the situation, or will it?
Your assistance with this would be appreciated as advice received from a variet of sources has been different
My view is that it is quite simple. The tenancy would have ended on the 10th day of a month. The periodic tenancy would have started immediatly afterwards – otherwise there would be a period of time without a tenancy – which is a nonsense.
So the periodic tenancy will run from the 11th day in the month to the 10th. So the last day of a tenancy is the 10th day.
The housing benefit cannot change the contractual agreement just by paying the rent on a different day. They are not even a party to the agreement anyway, they are just a third party paying the rent.
So long as the notice says section 21 that is enough. So you should be fine. But in future PLEASE use a saving clause, then you won’t have this sort of worry.
In determining whether the S21 is the correct version check what the wording says about when possession is required- you can imply the version from that. S21(4) should say …..possession after the date of expiry……whereas the S21(1) should say possession on the date of expiry.
I agree with Tessa’s advice.
The law requires a minimum of two months notice to expire at the end of a period of the tenancy.
The period starts the day after the fixed term expires, so in this case the the 11th June.
The length of the periods is determined by the frequency at which rent is payable under the contract, in this case monthly, so the periods are one month.
So your period runs from 11th of one month to the 10th of the next.
The frequency of housing benefit payments is irrelevant.
You didn’t specify the date it was served, but provided it said Section 21(4)(a) (not ‘b’) and it gave the min two months notice after allowing time for service then it all looks good to me.
Oh dear a contrary opinion.
For years this has been a nightmare but Meya as referred to by Tessa quite clearly finally sorted it out.
The issue was that for years there were two different opinions and systems. The one that is being referred to in this example, where the tenancy started on 11th June 2007 for three years. So it went periodic on 11th June 2010.
The two different systems were that one took the anniversary date of commencement of the agreement you were seeking to terminate and used the day before that for the “after” date in the notice.
NOTE HOUSING LAWYER both s21 notices can say after, you simply insert the last day of the fixed term (or the two months) as the date. If you say ON then possession can only be sought on that date and no other. There was a case recently where the landlord quoted ON and it was thrown out.
Back to the plot.
The other method, and the correct one as per Meya, was that it was the Rent Due Date that determined the period of the tenancy. Often of course especially for private landlords self managing these two dates will be the same anyway.
The problem was different Courts, and even different judges in the same Court building, also favoured one system or the other. So for example in August Court A with Judge B and you put the anniversary date, he throws it out as he thinks it should be Rent Due date.
Same Court building but in Court C and Judge D about 5 months later having had to re-serve your notice and this time Judge D favours the other system and says that it should have been the day before the anniversary date as the “after” date and so he throws it out.
Meya stopped all this nonsense and different judicial opinion (or willingness to be persuaded by advocate argument) and clarified that the period of the tenancy, the rent cycle, was dictated by the Rent Due Date relating to the last fixed term payment before the tenancy went periodic. So the day before that is the end of a cycle, not the day before the anniversary of commencement, unless they are both the same date which often in private lettings they will be (and increasingly with agents too).
If they are both the same date, which does simplify issues, then both systems are correct!!
My understanding of the Meya case is that it is authority for the fact that the correct period was monthly rather than 6 monthly (or whatever the period was in the case). Not the date the tenancy ran from.
Otherwise if you have a tenancy where the fixed term finishes on say, 6th July but the rent payment is not until 23 July – what does the tenant have in the intervening period?? He can’t not have a tenancy, that would be a nonsense.
So my interpretation is that the fixed term of a periodic ALWAYS starts immediately after the preceding fixed term ends. But the period (if there is any dispute) will depend on the period for which rent was last paid as per Meya.
This also complies with s5(3)(a) of the Housing Act 1988 which says that the new periodic tenancy is one
taking effect in possession immediately on the coming to an end of the fixed term tenancy;
Tessa
The tenant will always have a tenancy just because they are not yet due to pay, or have not paid at all does not mean the tenancy does not exist. Of course it does.
We may be agreeing in different ways.
First there is never a fixed term in a periodic or indeed a term in the normal sense it just runs on from month to month. It is the first day of the periodic tenancy that starts immediately after the fixed term has ended. No argument there.
So yes I can see an argument for saying that the periodic tenancy is running in your example 7th/6th and 7th/6th etc.
But if the Rent Due Date under the agreement remains the same and if that was the 1st monthly that will be the date that dictates the period of the tenancy and the date before it is the one that must be used in any eventually served s21(4)(a) notice. After the 6th.
There have been countless articles since Meya and they have almost all confirmed that the correct date for the “after” date in a section 21(4)(a)notice is the date immediately before a Rent Due Date as stated in the current agreement. Unless it has been varied by agreement.
Sorry last words in penultimate paragraph should say Last day of the preceeding month, NOT after the 6th.
S5(3)(a) of the Housing Act 1988 seems pretty clear to me.
But it is because there are still arguments like this that it is ESSENTIAL that a proper saving clause is included when drafting a section 21 notice.
Then so long as you wait at least three months, in cases of uncertainty, before issuing proceedings, you should be all right.