Spencer v Taylor
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice McFarlane |
| Judgment Date | 20 November 2013 |
| Neutral Citation | [2013] EWCA Civ 1600 |
| Docket Number | B5/2013/1408 + (A) |
| Court | Court of Appeal (Civil Division) |
| Date | 20 November 2013 |
[2013] EWCA Civ 1600
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand,London WC2A 2LL
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
Lord Justice McFarlane
Lord Justice Lewison
B5/2013/1408 + (A)
Mr I Colville (instructed by HOPKINS SOLICITORS) appeared on behalf of the Appellant
Mr O Radley-Gardner (instructed by BRM SOLICITORS) appeared on behalf of the Respondent
(As approved)
Wednesday 20 November 2013.
On 6 February 2006 Miss Taylor took a tenancy from Mr Spencer of 81 Prospect Road in Chesterfield. It was an assured shorthold tenancy which was originally granted for a term of 6 months, beginning on 6 February 2006, which was a Monday. The rent was payable weekly with the first payment becoming due on signing the tenancy. On the expiry of the fixed term a periodic tenancy arose under which the rental periods were also weekly. Thus, the end of the period of the tenancy would have been a Saturday.
On 18 October 2011 Mr Spencer gave notice requiring possession of the property. The notice was on a printed form. The notice said that Mr Spencer required possession of the dwelling house, giving its address and then continued "(a) after." There was then a blank box to be filled in, next to which were the words:
"Or (b) 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."
The date inserted into the blank box was 01/01/2012. That date was Sunday. The notes on the back of the printed form said:
"the date specified in the notice must be the last day of a period of the tenancy, at least two months after the notice is given, no sooner than the earliest day on which the tenancy could ordinarily be brought to an end by a notice to quit."
Two months after the service of the notice would have expired on 18 December 2011. The next Saturday after that was 24 December 2011. The claim form seeking possession was issued on 27 April 2012.
Mr Spencer concedes that 1 January 2012, being a Sunday, was not the last day of the period of the tenancy.
The issue on appeal is whether the notice was nevertheless valid.His Honour Judge Godsmark QC decided that it was; and I agree with him. I would therefore dismiss the appeal for the following reasons.
The requirements for a valid notice are contained in section 21 of the Housing Act 1988. That says, as far as is material:
"(1) Without prejudice to any right of the landlord under an assured shorthold tenancy to recover possession of the dwelling house let on the tenancy in accordance with chapter one above, on or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy a court shall make an order for the possession of the dwelling house if it is satisfied —
(a) that the assured shorthold tenancy has come to an end and no further assured tenancy, whether shorthold or not, is for the time being in existence other than an assured shorthold periodic tenancy, whether statutory or not and —
(b) the landlord, or in the case of joint landlords at least one of them, has given to the tenant not less than two months notice in writing stating that he requires possession of the dwelling house.
(2) A notice under paragraph (b) of sub-section (1) above may be given before or on the day on which the tenancy comes to an end and that sub-section shall have effect notwithstanding that on the coming to an end of the fixed term tenancy a statutory periodic tenancy arises.
(3) Where a court makes an order for possession of a dwelling house by virtue of sub-section 1 above, any statutory periodic tenancy which has arisen on the coming to an end of the assured shorthold tenancy shall end without further notice and regardless of the period in accordance with section 5(1A).
(4) Without prejudice to any such right as is referred to in sub-section 1 above, a court shall make an order for possession of a dwelling house let on an assured shorthold tenancy which is a periodic tenancy if the court is satisfied —
(a) that the landlord, or in the case of joint landlords at least one of them, 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 dwelling house 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, apart from section 5(1) above, 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.
4A. Where a court makes an order for possession of a dwelling house by virtue of sub-section 4 above, the assured shorthold tenancy shall end in accordance with section 5(1A)."
There is no prescribed form for the purposes of section 21.
Let me first consider section 21(1). It begins by saying that it is without prejudice to a right to recover possession under chapter 1 of the Act. That Chapter applies to assured tenancies whether they are assured shorthold tenancies or not and contains a number of grounds on which possession may be claimed. Arrears of rent or anti social behaviour are two examples. A landlord seeking possession under chapter 1 must first serve a prescribed form of notice under section 8 and begin proceedings within the time limits laid down by that section. Nothing like that is alleged in the present case, so we can pass over that.
Under section 21(1)(a), the court must be satisfied first that the assured shorthold tenancy has come it an end. As applied to our case, this means the fixed term shorthold tenancy referred to in the opening part of section 21(1). In our case, that tenancy came to an end on its expiry date.
Next, the court must be satisfied that no further shorthold tenancy has come in an existence apart from the an assured shorthold periodic tenancy. In our case, on the coming to an end of the fixed term assured shorthold tenancy an assured shorthold periodic tenancy came into existence by virtue of section 5 of the Housing Act 1988. No other tenancy came into existence so that condition is also satisfied.
The third condition that must be satisfied is that the landlord has given two months' notice. Sub-section 21(1)(b) does not require the notice to expire on any particular date nor does it require a date to be specified in the notice. In our case, Mr Spencer gave notice on 18 October for the following 24 December or 1 January. That was more than two months' notice.
It follows that the three conditions were satisfied with the consequence that the court was bound to make an order for possession.
Section 21(5) prevents the court from making an order to take effect six months after the beginning of the fixed term tenancy; but when an order is made and executed the tenancy terminates regardless of the period in accordance with sections 21(3) and 5(1A).
Mr Colville, appearing for Miss Taylor, relies on sub-section (2) as prohibiting the landlord from serving notice under section 21(1) once the fixed term has expired. That has been the view of some commentators. In other words, he reads it as saying that the landlord may only serve notice before or on the day on which the tenancy comes to an end. But that is not what the sub-section says.
In my judgment it turns the permissive language of sub-section 2 on its head to read as containing a prohibition of that kind. Moreover it is not, as Mr Colville submitted, a question of serving notice retrospectively, the notice will always be prospective in its operation.
In addition, as Mr Radley-Gardner, appearing for Mr Spencer, points out on Mr Colville's construction the landlord could serve notice during the currency of the fixed term tenancy, leave the tenant in possession for years afterwards under a statutory periodic tenancy and begin possession proceedings without any further notice at all. That would give the tenant no certainty. I would hold, therefore, that on a straightforward reading of section 21(1) and (2), our case is governed by those sub-sections. On that basis, it is clear that the landlord complied with the relevant requirements.
It may be that the legislative history would shed some light on the evolution of these two sub-sections, but as was common ground between counsel, we must construe the statute as it is today.
In the court below Mr Spencer did not rely on section 21(1) but relied solely on section 21(4). This approach may have been inspired by Fernandez v McDonald [2003] EWCA Civ 1219; [2004] 1 WLR 1027. But Fernandez v McDonald is to my mind a puzzling case. In order to explain why, I must set out the facts which I take verbatim from the judgment of Hale LJ:
"The tenants were granted an assured shorthold tenancy of 15 Avenue Road Extension Leicester for 6 months from 4 September...
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