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GN Law Media: Eviction by Section 21 Notices after Spencer v Taylor [2013]

A section 21 notice is a legal notice served by landlords upon a tenant requiring the tenant to leave the property by a particular date which cannot be less than 2 months from the date the notice is served upon the tenant.

S.21 notices are only applicable to assured short-hold tenancies, which are the majority of tenancies in the private renting market.

There are two types of s.21 notices, being:-

  1. A section 21(1) notice which can be served if the tenancy agreement was initially for a fixed contractual term.
  2. A section 21(4) notice which should be served if the tenancy agreement has always been periodic with no fixed contractual term.

This article only deals with the clarification of s.21(1) Notices.

On 9 December 2013 the legal procedure concerning how a landlord may lawfully evict a tenant using a s.21 Notice was clarified by Lord Justice Lewison in the case of Spencer v Taylor [2013] EWCA Civ 1600.  Lord Justice Lewison reached a conclusion which was against the previously accepted view of the requirements and limitations of s.21(1) Notices.

The clarity provided by Lord Justice Lewison was not upon the contested facts or law of the case he was deciding but appeared in Lord Justice’s general considerations before the points of the case were addressed.

Previously, it was assumed that a s.21(1) notice should appear in a standard format and that it could only be relied upon if it was served by the landlord upon the tenant during the fixed period of a tenancy agreement (which was generally either 6 months or 1 year). 

It was also widely accepted that a s.21(1) notice should list a date of expiry (on which the notice could be relied upon) and that this date should be the last day of the fixed term of the tenancy agreement.

Spencer v Taylor [2013]

Lord Justice Lewison adopted a strict reading of the legislation at s.21 of the Housing Act 1988 in which he confirmed that a s.21(1) notice does not need to be in a prescribed format, does not need to contain any legal notes or information and it does not need to have any date for possession included. 

Further, he determined that as s.21(2) of the Housing Act 1988 states that a s.21(1) notice “may” be served before the fixed term of the tenancy agreement, the legislation actually directs that a s.21(1) notice can be served any time before or after the fixed term of the agreement at the landlord’s discretion.

Lord Justice Lewison stated that the only requirements to ensure that a s.21(1) notice is valid (excluding the necessity of protecting the tenant’s deposit) are that:

(1)   a landlord must gives the tenant a written notice that the landlord shall require possession of the property in two months time; and,

(2)   upon the date the court considers making a possession order the fixed term of the tenancy agreement is passed.

Section 21 Notices in effect After Spencer v Taylor

Pros to Landlords

The result of Lord Justice Lewison’s considerations are that a landlord could potentially serve a s.21(1) notice which has no information upon it other than a couple of sentences stating that the landlord requires possession of the property in 2 months time.  A landlord could potentially list a required possession date on the notice which has no bearing to the tenancy agreement fixed term or the rental periods as there is no legislative requirement under s.21(1) that the notice contains any date for possession.

The requirements for particular and unambiguous dates as required for s.21(4) notices not only do not apply to s.21(1) notices, but a landlord may potentially put any date on the s.21(1) notice which he chooses without necessarily invalidating the notice.

Further, relying upon Lord Justice Lewison’s decision may allow a landlord relying upon a correctly served s.21(1) notice, to issue court proceedings before the fixed term of the tenancy agreement has expired, as long as he could arrange (perhaps through a stay) that the court’s actual date of the decision be postponed until just after the fixed term has expired.

Landlords are increasingly relying upon Spencer v Taylor as a panacea to any incorrect information and/or poor drafting in their s.21 notice.  However, landlords should take note that before relying on a s.21(1) notice they should still ensure that before the s.21 notice is served the tenant’s deposit is protected in an authorised scheme.

Cons to Tenants

A problem for tenants in receipt of a two month old s.21(1) notice is that they will no longer have any certainty as to the remaining length of their tenancy and/or when their landlord may issue a claim for possession. Under this current situation a landlord may send a tenant the s.21(1) notice and wait for a number of months or years before issuing a claim without serving any further notice on the tenant, similar to how a suspended possession order works.

Lord Justice Lewison’s decision could also lead to a situation where an unscrupulous landlord may mislead a tenant into thinking a s.21(1) Notice will not be relied upon until a certain date, so the landlord could then obtain a large single payment of future rents.  The landlord could then issue a claim for possession before the date on the s.21(1) notice expired, provided two months had elapsed and the fixed term had ended.  In such cases a tenant of limited means may not be successful in an application for Legal Aid as the s.21(1) Notice may still be valid meaning there may be no viable defence and any future claim for compensation would be a small claim meaning that the Tenant may not even get Legal Aid to pursue the money taken by the landlord. This means that a case which may challenge the Spencer v Taylor considerations may be some time coming, if it ever comes at all.

Ben Stephens-Brown, Solicitor

Posted on Tuesday, 10th June 2014