L serves s.21 Notice to help T obtain rehousing

[westminster]

This is a notice within the fixed term. There is no requirement for it to end on a term of the tenancy

Yes, I know that, but as Snorkerz says, it expires before the end of the fixed term, so my question was about whether you agree with Jeffrey/lawcruncher, who both maintain that, based on a strict reading of the statute, a s.21(1)(b) notice may expire before the end of the fixed term, and possession proceedings may be started before the end of the fixed term, (but an order for possession cannot be made before the end of the fixed term).

[jeffrey]

Yes, I know that, but as Snorkerz says, it expires before the end of the fixed term, so my question was about whether you agree with Jeffrey/lawcruncher, who both maintain that, based on a strict reading of the statute, a s.21(1)(b) notice may expire before the end of the fixed term, and possession proceedings may be started before the end of the fixed term, (but an order for possession cannot be made before the end of the fixed term).

That summarises my views, except that the final ten words
cannot be made before the end of the fixed term
might better read
if made during the fixed term cannot award possession operative before the end of the fixed term.
It's the operative date, not the making of the Order, that must [by s.21] be no earlier than the term expiry date.

[Paul Gibbs]

I agree with Jerrrey and Lawcruncher - the case is Gloucestershire HA v Phelps.

In any event the notice expires at midnight on 10 April 2011. Possession proceedings cannot be brought until the notice has expired, and therefore that would be the next day.

If the notice had said I require possession on 10 April then that would be wrong, however, in this case it simply says that the notice expires on that day.

[westminster]

I agree with Jerrrey and Lawcruncher - the case is Gloucestershire HA v Phelps.

Quote below from the landlordlaw blog, amidst a long discussion on the subject which occurred in tandem with the debate on here last month. It's only a county court judgment and it seems to support the argument that one cannot apply for possession before expiry of the fixed term (no-one is disputing the fact that an order cannot be operative before expiry of the fixed term).

Gloucestershire HA v Phelps
10 February 200 , Gloucester County Court
Possession cannot be ordered under s21 within a fixed term (in absence of break clause)

The claimant granted the defendant an assured shorthold tenancy on 4 February 2002 for a fixed term of 12 months. It was described as a ‘Starter Tenancy’ and included a clause that it would cease to be an assured shorthold after 12 months conditional on no possession proceedings having been brought.

On 4 September 2002, the claimant served a s21 notice but cited rent arrears and anti-social behaviour, although no such behaviour was specified. The claimant brought a possession claim under the accelerated possession procedure. A possession order was made by a district judge without a hearing on 11 December 2002.

The tenant appealed successfully because the possession order had become effective before the 12-month fixed-term tenancy had ended. HHJ Hutton stated that s21 specifically provides that possession may be granted only if the assured shorthold tenancy has actually come to an end at the time of the order. In this case it had not come to an end. The application and the possession order were premature. Although anti-social behaviour was raised in the claim, this was irrelevant because this action was not commenced under Housing Act 1988 s8.

From: Housing Law Casebook, 4th edition by Nic Madge and Claire Sephton

I'd also be interested to hear your views on NL's comment (Nearly Legal blog lawyer) on 7th Jan|11.50pm, towards the bottom of the comments.

http://www.landlordlawblog.co.uk/201...t-your-tenant/

[thesaint]

Thank you everyone for your help. The problem is, she will stop paying the rent and I will have to go through the whole process of evicting her.

Is she getting housing benefit/Local Housing allowance?

[Paul Gibbs]

Sorry for the slight delay in replying, I have been a bit snowed recently. I have also looked into the issue of whether possession proceedings can be commenced before the notice has expired.

I agree with NL that if a landlord was able to commence proceedings before the notice expired then the landlord is unlikely to recover costs.

The best case I have found on the point is Lower Street Properties Ltd V Jones (1996) 28 H.L.R. 877

In this case the landlord served a S21 notice and commenced proceedings a day before expiry. The Court of Appeal deal with this issue and below is what I think is the relevant extract from the judgment: -

"I come, therefore, to the final point in relation to the notice. Mr James submits, with some force, that if a landlord cannot start proceedings to obtain possession until after the date specified in the notice given pursuant to section 21 (4) the tenant will in fact enjoy an extra period of grace before the case can be listed for hearing. Why should the landlord not, he asks rhetorically, start proceedings and then if the tenant surrenders possession as required by the notice the landlord will simply discontinue and pay his own costs. But if the tenant does not surrender by the time the matter goes before the judge the statutory requirements will be fulfilled and the judge will be able to make a possession order. I have considerable misgivings about such a course of action. In the first place, from the point of view of the tenant, I regard it as objectionable that having been given a period in which to leave, legal proceedings to obtain possession should be instituted against him or her before that period has expired. It is easy to envisage quite serious and wholly unwarranted damage being done to the tenant's credit rating as a result. Of course, he might at first not discover that proceedings had been commenced, but if he did discover before the date specified in the notice he might ask the court to set the proceedings aside as an abuse of process and if he were to do that an application might well succeed. Secondly, from the point of view of the court, it is I believe highly undesirable to add to overburdened lists contingent litigation.

In the present case there is, I believe, an even more compelling reason for saying that the notice served on the June 16, 1994 could not be used to support proceedings commenced on the August 26, 1994 and that is that the notice itself said: “The landlord cannot apply for such an order ( i.e. an order for possession) before the notice has run out”.

It may be that if the notice had been differently worded the landlord could, without offending against any of the County Court Rules , have started proceedings when they did and in due course obtain a possession order but this notice, worded as it is, could not in my judgment be used in proceedings begun on August 26, because those proceedings were themselves in breach of the assurance given in the notice."

I think it is arguable that proceedings can commence before expiry unless the notice says that proceedings will not commence until after expiry.