No Human Rights Here – McDonald v McDonald in the Supreme Court

McDonald v McDonald [2016] UKSC 28

The European Convention on Human Rights, and the Human Rights Act 1998 are basically intended to regulate the relationship between individuals and the State, not between individuals themselves, which is generally left to domestic law. The HRA provides this expressly:

s 6.1 It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

So what happens when one individual, or private organisation, while exercising their own rights, normally as to the ownership of property, infringes the Human Rights of another individual?

In the housing field the easiest way for this to happen is when a landlord seeks possession of a house or flat belonging to him, but occupied by somebody as their home, and so the occupier’s rights would normally be protected under Article 8 of the Convention:

Art 8.1 Everyone has the right to respect for his private and fimily life, his home and his correspondence.

Art 8.2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

This clashes with the landlord’s rights under Article 1 of the First Protocol to the Convention:

A1P1. Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

If the occupant is evicted they lose their home. If not the landlord is deprived of his property. Which takes priority? It is easy enough if you are asking the judge to exercise his discretion and make an order, because he can take all these factors into consideration. But how do you decide if the landlord is seeking possession under a mandatory ground, such as ground 8  or s21 HA, when the judge has no discretion in the matter?

Well, the matter was decided in respect of property belonging to public bodies long ago, in the well known cases of Manchester CC v Pinnock (2010), and Hounslow v Powell etc (2011) I wrote about them at the time (here and here) and the SC decided that in an appropriate (ie very strong) case the court should decide whether the order sought was “proportionate” in all the cirdumstances. In practice the courts rarely exercise this discretion, but it is there and cannot be ignored, with public bodies generally adapting ther procedure to take it into account. And in this context “public bodies” includes most social landlords, following the CA case of Weaver v London & Quadrant (2009).

This was all based on the wording “a public authority” and so at first glance couldn’t affect relationships between private individuals, or private bodies. However, these are all cases where there is a mandatory ground of possession, with no discretion to the judge, and a strong feeling of unfairness, or lack of proportionateness, so the occupants’ advocates were inventive, and argued that although Joseph Soap, the landlord, wasn’t a public body, the local county court was, and so the court was bound by the HRA even if the landlord wasn’t. The court would therefore have to consider and deal with the human rights points, and if that affected the landlord’s rights then this was covered by the proviso in A1P1. If the argument succeeded than it would in fact apply to all areas of law, and not just housing claims, so it was a matter of great importance.

McDonald v McDonald

This was an undoubtedly hard case. The defendant, an adult with psychiatric and behavioural problems, was living in a house bought for her by her parents with the aid of a short-term interest-only mortgage from CHL. She had an AST of the property, paid from her benefits. Unfortunately her parents’ financial circumstances deteriorated and they could no longer pay the morgage payments in full. CHL appointed receivers under the LPA who exercised their power to serve a s21 notice on the defendant, and brought possession proceedings.

At Oxford County Court the defendant’s representatives argued that the court ought to consider the proportionality of making an order for possession, given that there was medical evidence that having to move would have a severe adverse affect upon her. HHJ Corrie held that he had no power to do this as the claimants were not a public body. However, if he did have the power the Judge would have exercised it and dismissed the possession claim, there being no other way to protect the defendant’s interests.

The CA dismissed the appeal and the case got to the SC and judgment was given on 15.6.16. They identified three questions:

  • should a court consider proportionality in a claim to evict a residential occupier by a private sector owner;
  • if so, is can s21 HA be read in a Convention compliant way; and
  • if so, would the Judge have been entitled to dismiss the claim as he said he would?

Proportionality

The defendant’s counsel argued strongly that the court was clearly a part of the state, and so was bound to consider proportionality in making any possession order, and if there was a private sector claimant would have to balance their A1P1 rights against the occupant’s Art 8 rights when coming to a decision.

The court said that things were not as simple as that. Parliament has regulated the position between private landlords and tenants for many years and although the tenant with an AST has restricted rights, they are significant and show where parliament has democratically decided to strike the balance between them. There are no circumstances where a judge should use Article 8 to make a different order from that determined by the contractual position, as regulated by the legislation. And as Lord Millett explained in Harrow LBC v Qazi (2004) the court:

 is merely the forum for the determination of the civil rights in dispute between the parties… once it concludes that the landord is entitled to an order for possession, there is nothing further to investigate. [paras 108-109]

Having looked at the cases from the ECHR the court decided that although there was some support for the view that Art 8 was engaged, there was none that said that a judge had to consider proprotionality when making a possession order, so the appeal was dismissed.

Can s21 be made compliant?

The court said that it is one thing to imply words into legislation which are consistent with the scheme of the legislation, but are needed to make it comply with the Convention. It is quite another to insert words that are wholly inconsistent this its scheme. That is not interpretation, but amendment, and is something for parliament and not for the courts to do. If the section was incompatible then there would have to be a declaration of incompatibilty. But in the circumstances this did not arise.

Should the Judge have dismissed the claim?

The judge could only postpone any order for possession bu up to six weeks, and then only if there was exceptional hardship. It was difficult to see how it would ever be proportionate to dismiss the posession claim altogether, and prevent the mortgagees getting repaid at all. The mortgage term expired only three weeks after the County Court judgment, and the only way to recover the loan was by selling the property with vacant possession. On the facts possession should have been postponed by six weeks at the most.

And this means?

The court has banged the argument that all law is subject to the Convention because all laws are enfirced by courts very firmly on the head. And also indicated that s21 and other mandatory possession grounds have been decided by parliament and that the courts must accept the balance between the parties that parliament has struck.

There may be a few small points on introductory tenancies still to be considered, but these are granted by public sector landlords, and this case, hard as it is to the parties concerned, really draws all this argument to a close, some 18 years after the Human Rights Act came into force.

Sighs of relief from private sector landlords. And at least the rest of us know where we are.

More details as ever with the Nearly Legal blog.

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More Changes for Landlords and Tenants – s21 Notices

One of the problems with the law, and especially with housing law, is that as soon as you have worked out what the law is in one particular corner, and how you have to act in order to comply with it, and have drafted the forms and prepared the advice, somebody comes along and changes it, and you have to start again, or at least revise things.
Well, this has happened with notices under s21 Housing Act 1988 following the coming into force of further parts of the Deregulation Act 2015 and some new regulations.

Things as they were

As you probably know, s21 HA provides a way of a landlord of an Assured Shorthold Tenancy – the most common kind of tenancy in the private rental market – to bring the tenancy to an end, basically by giving 2 months’ written notice. Provided this expired after the end of any fixed term (and originally at the end of any periodic tenancy period) then the landlord could bring possession proceedings and the Court had to make a possession order. There was no form of notice, and the procedure could go through the accelerated process, which meant that if you had got the paperwork right there wasn’t even a hearing, as the order was made on a paper application. This made it the most common way of ending a tenancy, as there was no argument about reasons or anything like that, and many thought that this guaranteed ability of landlords to bring tenancies to an end when they wanted was the one of the key things that set off the increase in private lettings.

The Changes

When tenants’ deposits had to be protected in 2007 the landlord had to enter the deposits into one of the approved schemes and give the tenants notice within a prescribed period (originally 14 days, but later changed to 30 days) and if they hadn’t done so (or couldn’t prove that they had done so) any s21 Notice was invalid. This encouraged landlords to comply, and after some considerable hiccups with the legislation (see here and here) this system now seems to be working satisfactorily.

This was encouraging – a self-enforcing piece of legislation – so the government has now imposed a number of additional requirements. For tenancies starting after 30th September 2015 a landlord also has to serve the tenants with:
• An energy performance certificate
• A gas safety certificate
• A copy of the current booklet “How to rent: the checklist for renting in England”
And if they don’t they can’t serve a s21 notice until they do. This only applies to new tenancies – not periodic  tenancies that come into force after that time on the expiry of a fixed term. Note however that it does apply to a contractual periodic tenancy, or a replacement tenancy which merely replaces a former tenancy of substantially the same premises and is between the same parties.

Do note that landlords also have to fit smoke and carbon-monoxide alarms on all residential lettings (smoke alarms on every storey and CO alarms in rooms with a solid-fuel stove) from 1st October or they can be fined. This covers ASTs and all lettings for up to 7 years, apart from those shared with the landlord’s family and a few others. But it doesn’t affect the ability to serve a s21 Notice.

More Changes

There is now a prescribed form of s21 Notice. Not very different to the one that was normally used before. But if you don’t use the new one for a letting starting after 30th September 2015 then it isn’t valid. And if you use the new form on an existing letting it is misleading, because the explanatory notes are incorrect, so it is best not to use it. Please note that the first version of the Regulations (which also cover the requirements on energy performance certificates etc) messed up the form of notice and it had to be corrected. This new version is the form to use.

s21 Notices banned in first four months

For ASTs starting after 30th September  the s21 notice cannot be served in the first 4 months of the tenancy, or, if it follows on from an earier tenancy of the same property, within 4 months of the start of the earlier tenancy. Court proceedings must be started within 6 months of the notice (in most cases). So the old tactic of serving a notice with the tenancy is over.

And the end of retaliatory evictions

Well, that’s the intention. Landlords got into the habit of threatening to serve a s21 Notice on any tenants who looked as if they might be difficult, for example by complaining about defects in the property which the landlord ought to repair – say a leaky roof. This was clearly a bad thing, and unfair to tenants, and so s33 Deregulation Act says that s21 Notices can’t be served within 6 months:
• After an improvement notice, or an emergency remedial action notice, under the Housing Act 2004 has been served by the Local Authority; or
• After a tenant has written to complain about conditions, the landlord didn’t give a relevant response within 14 days and the tenant complained to the LA, and the LA served a notice.

There is argument in the legal press about whether the “relevant response”, which ought to be how the landlord proposes to address the problem, and a reasonable timescale for doing so, matters, or if a notice can be served anyway. The advice must be to respond, because it may persuade the LA that nothing further needs to be done.

Whether this will work very well in practice isn’t clear as most LA housing officers are very pressed and can barely keep up with their workload at present, but it is a start. We shall see.

Finally

This is a very simplified view of complicated law, which only applies to England, as Wales and Scotland have their own legislation. There is a lot more information on the Nearly Legal blog, and a whole series of very useful pieces on Tessa Shepperson’s Landlord Law blog. But at least you now know these changes have been made, and can go off and look things up. Job done.

All Change – s8 Notices, Superstrike and more

As I’ve mentioned before, the bane of writing these pieces is that no sooner have you written about something than they go and change it so you have to update things. I’ve been a bit slow off the mark this time, so all the spadework has been done by others, and all I hope to do is to point to their pristine furrows, and invite you to admire. In practice it may be a bit more complicated – it always is.

s8 Notices

These are the notices that you have to serve if you are a landlord to an Assured or Assured Shorthold Tenancy and want to bring it to an end prematurely, usually because the rent isn’t being paid, or the tenants are being antisocial, but there are lots of other possible reasons – grounds 1-17 + 7A, 14A and 14ZA of the Act* set them out.

Strictly speaking the notice is Form 3 under the Housing Act 1988* section 8 as amended by section 151 of the Housing Act 1996 and section 97 of the Anti-Social Behaviour, Crime and Policing Act 2014 but I’ll continue to use s8 Notice in the interests of saving my fingers.

The important thing is that the form of notice is prescribed, and the form of the notice has been (slightly) amended from 6.4.15, in this case by the Assured Tenancies and Agricultural Occupiers (Forms) (England) Regulations 2015 No 620 (different forms apply in Wales, it appears). So if you don’t use the right one the notice is ineffective and you’ll probably have to start the court proceedings all over again. You will certainly be returning to go without the court fee if you are using the most popular ground – Ground 8 (2 months’ arrears of rent) – because the court isn’t allowed to dispense with service of the notice in that case (see s8(5) HA 88).

There are also changes to some lesser-known forms such as a s13 form that allows a landlord to increase the rent.

So make sure that you use the right up-to-date form, or if you are a tenant or advising one, that the landlord has got it right.

There is more information on Tessa Shepperson’s useful blog and the forms themselves are in the Stat Ins and elsewhere. Do be careful – the last time that I looked several sites, including the government site still had the old invalid ones. The new forms have a note about ground 7A after section 5.

s21 Notices

These haven’t been changed. But do remember that you rarely need to use the s21(4) notice for periodical tenancies any more – the s21(1) fixed term notice is valid for all tenancies provided that they started off as a fixed term tenancy, as they nearly always do. This is all courtesy of Spencer v Taylor – more on this here.

Superstrike and AST Deposits

Deposits taken by landlords and their agents in relation to Assured Shorthold Tenencies have to be protected in one of the deposit protection schemes. However, what happens when the initial 6/12 month term expires and the tenancy goes over to being periodic? Surely you don’t need to protect it/serve all the notices all over again! Oh yes you do – courtesy of the CA in Superstrike v Rodrigues. This decision in 2013 made logical sense but no sense in the real world and we have been waiting for ages for it to be overturned by legislation.

Well, the time has come at last, and a clause or two have been slipped into the Deregulation Act 2015 to put us back to basically where we thought we were beforehand. Hence:

  •  s215A For deposits received before 6th April 2007 (when the original legislation had come into effect) provided the deposits are protected and the appropriate notices served by 23rd June 2015, or before any possession proceedings are started, they are deemed to have been properly protected.
  • s215B For deposits received on or after 6th April 2007 provided the deposit has been protected and the appropriate notices served for the fixed term, they don’t need to be repeated for any periodic tenancy that replaces it. It doesn’t matter if it is a statutory or contractual tenancy, but the landlord and tenant must be the same,  and the premises must be substantially the same, and the tenancy must come into being on the coming to an end of he original tenancy. And the section is treated as having had effect since 6th April 2007.

There are transitional provisions for claims by tenants for penalties under s214 or landlords for possession under s21. Basically, if the claims have been settled or finally determined (ie time for appealing expired) they are final, but if not the court will apply the new law from 26th March 2015, and the landlord will probably win. However, he won’t be allowed to recover any costs from the tenant it he has to rely on these provisions.

And finally, some bad drafting about notices giving agents’ details has been tidied up, so that agents can give their details or the landlords details if they wish. And the same transitional provisions apply for claims that have arisen because of this.

This is only a brief summary. For the exact wording go to ss30-32 Deregulation Act 2015 and for a more detailed explanation go to Tessa Shepperson’s blog where she breaks things up into digestible chunks.

This ought to sort things out, but it’s a complicated area and I have a feeling there may be some more problems in store. There is no excuse, however, for any landlords who haven’t protected and notified deposits taken before 6th March 2007: get things organised by 23rd June 2015 or have the sky fall on you!

More to come

I will leave the even more complicated bits in the Deregulation Act restricting retalitory evictions and changing the rules on s21 notices until another time. They only apply to fixed term ASTs that were granted on or after 1st October 2015, or periodic ASTs that immediately followed on from such tenancies. Until, that is 1st October 2018, when they will apply to all ASTs, whenever granted. So I’ve a little time to spare.

 

A Plague on All Your Houses?

There is a General Election tomorrow, as you may have noticed. I have ignored it so far, and generally leave party politics alone on this site, as that’s not what it’s for. However, I can’t help but comment on the policies on housing and landlord-and-tenant from the main parties.

Conservatives

We know most about them because it is basically going to be more of the same. Exactly how much “more” and “same” isn’t so clear and will depend on post-election haggling, and who gets what jobs in a new administration. Chris Grayling, say, in Housing would put a different stamp on things to the current (forgettable) minister.

The big story is extending the right-to-buy to social housing properties. There was a lot of outrage initially as it was thought this might devastate social housing stock, but looking at things a bit further shows that the vast majority of social housing tenants won’t be able to afford to take up any right to buy, even at a hefty discount. And even if they do, and sell up and move out, the property will still be there, and no doubt will be let or sub-let to somebody else, so will remain in use. Whether it is sensible to subsidise what will be the wealthier social housing tenants, and make it much more difficult to manage social housing stock, which is inadequate as it is, are questions I will leave to you.

And further austerity may mean a reduction in Housing Benefit, or its Universal Benefit successor which will make it harder for the worse off to pay rents, which won’t help them or their landlords. While the Bedroom Tax will presumably stay, with all the problems that this causes.

However, supply of rentable properties will remain high, compared to the alternatives. So a mixed picture.

Labour

The headline propsal is 3-year tenancy agreements, with rent increases capped at inflation for 3 years. This must be a good thing for the majority of tenants and landlords, as stability helps them both in the short term. A good tenant wants to stay put in the community and will take more care of a property they can be sure of staying in, and a landlord wants to avoid frequent changes, voids and all that hassle. Whether it will work in the longer term is more doubtful. Until the Conservative reforms allowing unrestricted rents and easy repossession under s21 Housing Act 1986 the private rental market was moribund. Will it go there again? And will it be politically possible to remove rent control after the time is up? Or stop further restrictions in the future.

And what about bad tenants? Often a landlord will use s21 to remove a tenant who is in rent arrears or guilty of antisocial behaviour becuase it removes the possibility or argument in court. This opportunity will go for the 3 year term. Will landlords want to take the risk? They are likely to raise rents initially if they will be frozen later on.

Other proposals on registering letting agents and (possibly) landlords will be generally supported, althought the devil will be in the detail. And the Bedroom Tax will go, which helps both the poorest and the social housing landlords who house them. So again, a mixed picture.

SNP

Not a likely government, but a very likely ally if not a partner. And they have much more radical views on housing. In Scotland they are abolishing s21, so tenants can stay in properties indefinately as long as they pay the rent. Forecasts of a reduction of 40% in private letting as a result, as landlords get out while they can, are probably exaggerated, but there is likely to be some effect. The Bedroom Tax will also go, and they are probably keen on registering landlords, so the effect will be Labour on steroids.

Lib Dems

Their policies include most of the Labour ones, watered down a bit, plus rent-to-buy and help-to-rent proposals involving assistance in raising the deposit for first-timers. How far their proposals will see the light of day in any deal is difficult to foresee. But another choice on the form.

Conclusion

It’s your decision. But you may see my view in the comments above.

There is a much more detailed look at this sort of thing on the Nearly Legal website here.

Note – The title is a slight misquote from Romeo & Juliet.

Spencer v Taylor update – Supreme Court refuse leave to appeal

Well this is just a short note, and the title says it all. On 24th July the Supreme Court refused the tenant leave to appeal against the CA decision which accordingly stands. This is all about ending Assured Shorthold Tenancies, and is in fact good news for both landlords (as you’d expect) and tenants as well, as it clarifies the law no end, so everybody knows where they are.

I wrote about this at the time, but in summary the CA had put an end to all those irritating problems caused by the complicated provisions of s21 Housing Act 1988. This provides for two forms of notice – one in s21(1)  for use with a fixed term tenancy which just needs to be 2 months expiring after the tenancy has come to an end, and one in s21(4) that is for use in periodic tenancies and needs a date after which possession is to be given that is on the last day of a period of the periodic tenancy, and at least 2 months ahead. There is lots of scope for getting this wrong, as the period of the tenancy may be different to the date when rent is paid, and many landlords forget that a tenancy starting on 5th May ends on 4th June, not 5th June.

Lewison LJ pointed out that s21(1) notices can be given in all cases

on or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy

so as virtually all periodic ASTs start as a fixed term, and then run on, a s21(1) notice can be used for them as well. And the cleverest bit is that he pointed out that a s21(4) notice, is a perfectly valid s21(1) notice, just one with added bells & whistles.

So landlords can throw away their s21(4) notices and use the simple s21(1) version in every case apart from the rare ones when the AST was always a periodic tenancy, or where the conversion to the periodic tenancy is contractual rather than the normal statutory one.

Of course you still have to make sure the notices etc about the deposit have been reserved following Superstrike (my piece here) but not for long, as remedial legislation is on its way – here’s the current position as at 22nd July. More of that when it arrives.

No doubt there will be more detail and analysis from the usual sources – Nearly Legal has promised an extended piece shortly. But good news all round.

 

PS – Nearly Legal’s extended piece is here.

Spencer v Taylor – Good News for Landlords

Spencer v Taylor [2013]EWCA Civ 1600

This piece is a bit late, as the judgement was given before Christmas. But I’ve been busy, and there has been a lot of Mitchell-related nonsense going on.

We need to go back a bit. In the old days, before the new legislation there was very little private rented accommodation about, because the rents were controlled and it was virtually impossible to get tenants out even if they weren’t paying the rent. Then the new assured tenancies arrived and rent controls were relaxed, and it became possible to recover possession if there was a good reason, especially if the rent got seriously into arrears.

But landlords were still reluctant to commit themselves to possibly a lifetime of commitment, if their idea of a good reason differed from the judge’s. The mandatory orders under Ground 8 for tenants who were 2 months in arrears of rent were a start. However, what they wanted was the certainty of getting the property back if they wanted to. And this was where s 21 Housing Act 1988 came in. Because if a landlord served a s 21 notice and got the procedure right the Judge would have to make an order for possession in 14 days (or no later than 6  weeks if there would otherwise be serious hardship). There was no discretion.

And there was no fancy form of notice – they just had to give 2 months’ notice in writing.

Well, as you might imagine, landlords liked this, and the supply of properties to let increased rapidly. Perhaps I ought to say before you complain, that I realise that there were no doubt other reasons for this as well – the difficulties in getting a mortgage and the reductions in benefits and the economy generally for a start.

However, things are never simple. s 21 was drafted when ASTs were in their infancy and the draughtsmen didn’t realise that virtually all ASTs would run for 6 months as a fixed term, and then run on as periodic normally monthly tenancies thereafter. It would appear that they expected them to be either entirely fixed term, being brought to a prompt end at the end of the term, or to be periodic from the outset. And in the neat way that draughtsmen have they gave two forms of notice that had to be given – one for fixed terms and one for periodic terms.

The fixed term notice has given no difficulty. What is needed under s 21(1) is

  • a notice in writing signed by the landlord (or at least one of joint landlords)
  • requiring possession in not less than 2 months
  • expiring after the end of the fixed term

Hard to go wrong here, provided you can prove that the notice was actually given. The periodic notice however was much more complicated in practice. Under s 21(4) you needed

  • a notice in writing signed by the landlord (or at least one of joint landlords)
  • stating that after a date given possession is required under this section
  • the date must be at least 2 months after service
  • and must be the last day of a period of the tenancy
  • and must be no earlier than the earliest that the tenancy could have been brought to an end by a Notice to Quit if these were not invalidated by s 5(1). [in practice this wasn’t a problem as this was almost always less then 2 months].

The problem was getting the day right. A monthly tenancy starting on the 5th ends on the 4th of the next month and it’s the 4th that you have to give, or it’s invalid. Lots of scope for getting it wrong, and having to start again, even, sometimes,  if you had a saving clause. And as almost every AST was terminated when it was a periodic tenancy the established wisdom was that you had to use this form. So it mattered.

But no more. Lewison LJ in the Court of Appeal (who was an eminent landlord and tenant counsel in his day) decided to cut through the wreckage and simplify things. He noticed that s 21(1) applied

on or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy

Now this tenancy had been a fixed term tenancy at the outset, in 2006, but had been periodic ever since the initial 6 months expired. The notice that had been served in 2011 was the s21(4) periodic one and it was arguable that the date selected was incorrect (the saving clause was not as clear as it should be). So the parties went to the CA presumably expecting to argue about the saving clause. And Lewison LJ decided that even if it was an invalid s 21 (4) notice it was a perfectly valid s 21(1) notice. It ticked all the boxes – it was signed, required possession in not less than 2 months, and it expired after the end of the fixed term. So all the arguments about s 21(4) just didn’t matter. And the famous 2003 CA decision of Fernandez v McDonald , which said that the correct date was vital, was strictly speaking irrelevant as the court only dealt with a s 21(4) notice.

For completeness I ought to say that Lewison LJ went on to find that the notice would have been valid under s 21(4) as well, but that is beside the point. Because NOBODY IS GOING TO USE s 21(4) NOTICES AGAIN.

You don’t need to. Unless your AST has NEVER been a fixed one, which is extremely unusual, and indeed this is another reason to avoid that arrangement, s 21(1) notices may be used in every case. Because the CA have said so in Spencer v Taylor. They are just so much easier. And although I will for one be unhappy to see s 21(4) go as it has been good to me in producing reasons to be given work by landlords, opportunities of earning fees in sorting out messes that landlords (and some non-specialist lawyers) have got into, and unexpected get-out-of-jail-free cards for my tenant clients, it must be for the best.

However, if you are a landlord, or acting for a landlord, do remember that before serving any sort of s 21 notice you have to be sure that any deposit has been properly protected, the appropriate notices etc served, and re-served as required by Superstrike v Rodrigues   (& see my further comments here) after the fixed period has expired. Or any s 21 notice is invalid and you’re in trouble.

IMPORTANT NOTE

I have just heard that the tenant has applied for permission to appeal to the Supreme Court, so things are still in the air. Anthony Gold are representing the landlord and have more info here. So until this is finally decided it is best to continue using the s 21(4) notice if the notice is served after the fixed term has expired (the “established wisdom” referred to above) just in case the SC don’t agree with Lewison LJ. Which will be a pity.

PS – Leave to appeal refused 24th July 2014. See my note. So the useful decision stands.