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POSSESSION IN AST’s

Private sector Assured Shorthold Tenancies – Possession under s.21 Housing Act 1988

In December 2013 the Court of Appeal gave an important decision in the case of Spencer v Taylor. It held that when a fixed term Assured Shorthold Tenancy had expired and a statutory periodic tenancy had come into existence on expiry of the fixed term, the landlord was able to rely upon a notice which was compliant with s.21(1)(b) of the Housing Act 1988 even though it was served after expiry of the fixed term.

Previously it was assumed that in these circumstances only a notice that was compliant with s.21(4)(a) of the Housing Act 1988 would be sufficient to recover possession – that is a notice which specifies and correctly identifies a date after which possession is required.

In this case a notice under s.21(4)(a) had been served in respect of a statutory periodic Assured Shorthold Tenancy. The date specified in the notice after which possession was required was wrong, but a saving clause in the notice enabled a correct alternative date to be calculated. The Court of Appeal held that as the notice complied with the less stringent requirements of s.21(1)(b) it was a valid notice. It also held that the notice was valid under s.21(4)(a) because it enabled a reasonable tenant to correctly identify the date after which possession was required. It is fair to say though that the most surprising part of the judgment was the decision that a s.21(1)(b) compliant notice would be sufficient to recover possession in these circumstances.

A valid s.21(4)(a) notice is still required in the case of an Assured Shorthold Tenancy which has been periodic from the start. In most other cases either a valid s.21(1)(b) or s.21(4)(a) notice should be sufficient to recover possession.

However, caution should be exercised as the decision could be overturned by the Supreme Court and we understand that leave to appeal is being sought. The best advice is to continue using s.21(4)(a) notices where appropriate and to ensure that the date specified in the notice is correct and a valid saving clause is included.

For advice on gaining possession of premises let on assured Shorthold tenancies please contact Alison McLachlan on apm@slcsolicitors.com or Jeremy Weaver on jpw@slcsolicitors.com

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