A recent successful challenge to a district judge’s decision not to grant a possession order after notice was served under the Housing Act 1988 has reinforced the distinction between a situation where there is no fixed contractual term and one where there is.
The landlord, having let his property on a fixed term contract, served a notice seeking to recover possession under section 21(1)(b) of the 1988 act, giving more than 2 months’ notice and timing it to expire after the end of the contractual term.
Having started proceedings under the accelerated procedure to recover possession, the judge refused on the grounds that the notice did not expire “at the end of a period of the tenancy”. This seemed to suggest that because the tenancy continued as a periodic tenancy after the end of the contractual term, the notice should have been timed to end at the end of a period of the tenancy.
We challenged this decision and assumption on the basis that he had confused the situation with one in which there was no fixed contractual term but instead an assured shorthold periodic tenancy, which required the appropriate notice to be served under section 21(4)(a) of the act.
We argued that in this case, the notice was served during the course of the contractual term and therefore the relevant notice was that to be given under section 21(1)(b). This notice required that only two months’ notice (minimum) had to be given and, there was no requirement for the notice to expire after the end of a period of the tenancy.
This is reinforced by section 21(2) of the Housing Act 1988, which says that where a notice seeking possession is served during the contractual period of the tenancy, section 21(1)(b) shall apply (and not section 21(4)(a)) and that as section 21(1)(b) provides that the notice can be given at any time during the contractual period of the tenancy and that the only requirements are that the notice is for a minimum of two months and cannot end before the end of the fixed term contract, the correct notice had been given by the landlord in this case and he was entitled to a possession order.
The court agreed with us and a possession order was made.
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