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Possession claims against assured shorthold tenants

 [published in the Association of District Judges, Spring 2003]

Claiming possession against an assured shorthold tenant ought to be a simple matter.  However it is generally agreed that Housing Act 1988 is poorly drafted. The purpose of this article is to summarise the law, especially s21.


The requirements for the creation of an assured shorthold tenancy depend upon when the tenancy (or first tenancy if there are successive tenancies) was granted.  There were more procedural requirements before 28 February 1997 when amendments introduced by Housing Act 1996 ss96 to 100 came into force.  A tenancy granted after that date may be an assured shorthold tenancy even if it is granted for a fixed term of less than six months, or for a periodic term.  Further, an assured shorthold tenancy may now be granted orally, although a landlord is precluded from using the accelerated possession procedure (CPR 55.11 to 55.19) if there is no written tenancy agreement.


It is important to remember that assured shorthold tenancies are a type of assured tenancy, albeit one which lacks long term security of tenure. One consequence of this is that a landlord cannot bring the tenancy to an end without an order of the court.  Service by landlords of common law notices to quit has no effect (Housing Act 1988 s5(1)).  If a possession order is made against an assured shorthold tenant, the tenancy terminates on the date when it is ordered that possession should be given up.


During a fixed term tenancy

During a fixed term, a landlord cannot rely upon s21 (automatic right to possession on giving two months’ notice), unless there is a contractual break clause in the tenancy allowing the landlord to recover possession before the expiry of the term.  (If there is a ‘break clause’ in an assured shorthold tenancy, allowing the landlord to terminate the tenancy on giving notice after six months from commencement, service of a s21 notice may be sufficient to activate the break clause (Aylward v Fawaz (1997) 29 HLR 408, CA)).


However, the normal grounds for possession against assured tenants apply to all assured shorthold tenancies. For a landlord to regain possession during a fixed term assured shorthold tenancy with no break clause, relying upon a ground for possession in Housing Act 1988 Sched 2:

§         the tenancy must contain a term allowing the landlord to re-enter or terminate the tenancy for breach of any covenant in the tenancy or if one of the grounds for possession against assured tenants exists; and

§         the landlord must serve notice of proceedings for possession in accordance with s8 (or, except under Ground 8, persuade the court that it is just and equitable to dispense with the requirement for a s8 notice); and

§         the landlord must prove the existence of any of the following grounds for possession, namely 2, 8, 10, 11, 12, 13, 14, 14A, 15 or 17 (ie, essentially ‘tenants default’ grounds), and, if appropriate, that it is reasonable for an order to be made.


During a periodic  term

Before 28 February 1997 most landlords granted assured shorthold tenancies for the minimum period of six months, but then allowed the tenant to ‘hold over’ after the end of that period. In those circumstances, if the tenant continues to occupy premises as his/ her only or principal home, a statutory periodic tenancy arises, but it remains an assured shorthold and lacks security of tenure.  Alternatively, since 28 February 1997 the landlord may have granted an assured shorthold tenancy that was periodic from the outset.


All that a landlord need do to recover possession is to:

§         prove that any fixed term tenancy has come to an end and that no new tenancy has been granted; and

§         give at least two months’ notice to the tenant in accordance with s21 that the landlord requires possession; and

§         take court proceedings.


If landlords comply with these requirements, they are automatically entitled to possession. The court has no power to suspend possession orders, apart from Housing Act 1980 s89(1) which provides that orders for possession must take effect no later than 14 days after the court order unless exceptional hardship would be caused, in which case the maximum period that can be allowed before possession is to be given up is six weeks.


A s21 notice served upon a periodic assured shorthold tenant:

§         may be given before any fixed term expires or even at the beginning of the tenancy (s21(2));

§         need not be in any particular form, although it must be in writing (s21(1)(b), as amended by Housing Act 1996 s98);

§         may be given by only one of several joint landlords (s21(4)( a)).


There is however no power to dispense with service of the notice or to waive defects in a notice which is invalid bcause it fails to comply with the statutory requirements (cf Housing Act 1988 s8(1)(b) which gives the court power to dispense with the requirement for a s8 notice seeking possession where one of the grounds for possession in Schedule 2 is relied upon).  There is no statutory provision or decided case that supports the proposition that s21 notices cease to have effect if not acted upon by the landlord within a set period of time.  It is not unusual for landlords to delay issuing possession claims for months, or even years, after serving a s21 notice.


Points to check are that:

a)     the notice gives at least two months' notice, although no actual date need be specified provided that ‘the tenant knows or can easily ascertain the date referred to’ (Lower Street Properties Ltd v Jones [1996] 48 EG 154, (1996) 28 HLR 877;  CA);


b)     if the notice is given under s21(4), in other words if it is given during a periodic tenancy, the date specified in the notice is (or the period of notice given in the notice expires on) ‘the last day of a period of the tenancy’.   Uncertainty has been caused by the dichotomy between Housing Act 1988 s21(1)(b) and s21(4)(a).  Section 21(1)(b) merely provides that the landlord must give "the tenant not less than two months' notice stating that he requires possession of the dwelling-house".   However s21(4)(a) provides that the date specified in a notice where there is "a periodic tenancy" shall be "the last day of a period of the tenancy". Most commentators take the view that there is no need for the two months notice to expire on "the last day of a period of the tenancy" if the notice is served during a fixed term assured shorthold tenancy but that this requirement has to be satisfied if the notice is served after the expiry of a fixed term (i.e. during a statutory periodic assured shorthold tenancy). In Gracechurch International SA v Tribhovan and Abdul ((2001) 33 HLR 263, CA) Simon Brown LJ, while hearing an appeal on another issue, described the dismissal of possession proceedings, because a notice requiring possession from a periodic tenant did not expire on the last day of a period of the tenancy, as “clearly correct”.  This has also been the approach taken in almost all of the first instance decisions which have been noted in journals over the last decade.


There is now little doubt that a s21 notice served during a periodic tenancy must expire on "the last day of a period of the tenancy".  The use of the words "without prejudice . . . to . . . subsection (1)" in s21(4) clearly show that the two subsections are alternatives and that s21(4) is not an additional requirement for all s21(1) notices.  The words in s21(2) ("A notice under paragraph (b) of subsection (1) above may be given before or on the day on which the tenancy comes to an end") indicate that a s21(1) notice is one which can be served during a fixed term.  In contrast the use of the words "let on an assured shorthold tenancy which is a periodic tenancy" in s21(4) indicate that the s21(4)(b) requirement applies whenever a notice is served during a periodic tenancy - and that includes a statutory periodic tenancy (cf s13(1)(a) and (b) and s15(3)).  This approach is also supported by Housing Act 1996 s98 which refers to s21(1) notices as being given "under a fixed term" and s21(4) as the "corresponding provision for periodic tenancies".


In order to avoid this problem, prudent landlords serve notices which include, after the date given, a rider which provides that the notice may also expire "at the end of the period of your tenancy which will end next after the expiration of
two months from the service upon you of this notice’.


c)      the date specified ‘is not earlier than the earliest day on which . . . the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the notice . . .’ (s21(4)(b)).   Accordingly, more than two months’ notice is required where there is an express provision requiring a longer period of notice or the rental period is longer than two months, eg, where there is a quarterly tenancy, in which case a quarter's notice has to be given;


d)     proceedings have not been commenced before the date specified in the notice. The claim for possession in Lower Street Properties Ltd v Jones ((1996) 28 HLR 877; [1996] 2 EGLR 67, CA) was dismissed because proceedings were started, the day
before the s21 notice expired. Schiemann LJ stated, it ‘is implicit that the landlord cannot bring proceedings until after [the date specified in the notice] ’, although Kennedy LJ reached his decision on the grounds that the notice served stated, the ‘landlord cannot apply for such an order before the notice has run out’, and left
open whether, with a different wording, proceedings could have been begun before expiry;


e)     if the tenancy is one to which Housing Act 1988 s19A applies (ie, it was
granted after 28 February 1997 and none of the exceptions in Sch 2A applies), then any possession order will not take effect earlier than six months after the grant of the original tenancy. 


It has been suggested that there are circumstances where it may be appropriate to disregard the strict requirements and to make a possession order even though a notice purportedly served in accordance with s21 is invalid.  This would involve disregarding the statutory requirements of s21. There are other dangers in that approach, not least to the landlord.  It may lead to the following scenario.  A tenant is evicted as a result of the possession order and the landlord re-lets. The tenant seeks rehousing by the local authority and is required to take in the possession claim and order in support of her application.  She is then told by local authority that it has no obligation to re-house because she is not in priority need, but that the original possesion order is "invalid" because the s21 notice was defective.  She is advised to apply to court to set aside the possession order, either under CPR 55.19 (if the order was made under the accelerated possession procedure) or CPR 39.3 (if  it was made at a hearing which the tenant did not attend ) or on appeal to a circuit judge (if it was made at a hearing which the tenant attended). The tenant's application  succeeds.  The effect of that is that the original tenant's tenancy is reinstated. As against the original tenant, the new tenant is a trespasser and as a result the original tenant brings a possession claim against the new tenant. The likely consequence of that is that the new "tenant" will bring a claim  against the landlord for damages.

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