Assured shorthold tenancies – which type of s21 notice?

• Real estate dispute resolution
• Real estate litigation

16-12-2013

Spencer v Taylor [2013] EWCA Civ 1600

It sounds like a dry issue, but for a landlord terminating a periodic assured shorthold tenancy (“AST”), having to serve a notice under s21(4)(a) of the Housing Act 1988 instead of under s21(1)(b), adds an unwelcome level of difficulty. Both forms of notice must give two months before expiry, but while the latter can expire at any time, the former must expire on the final day of one of the periods of the tenancy, and this is not always easy to achieve.

Landlords will welcome this decision, therefore, which applies in the very common case where a fixed term AST has ended, but the tenant has remained in occupation under a periodic AST. It has been the commonly held belief that if the notice is being given before or on the day on which a fixed term tenancy ends then a s21(1)(b) notice is appropriate, while if the notice is served during the subsequent periodic tenancy, then a s21(4)(a) notice is required.

This case now indicates that if a tenancy has at some stage had a fixed term then a s21(1)(b) notice will always be an acceptable means of termination, whether it is served during a fixed or periodic part of the tenancy.

A s21(4)(a) notice is only for tenancies that were periodic from the outset and have always been so. This means that for the majority of tenancies, the s21(4)(a) notice is now irrelevant as almost all of them have at some stage been operating under a fixed term.

The decision will make life easier for landlords, and for their agents and solicitors up and down the country.