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Guidance on the correct use of Notices to Quit

publication date: Oct 17, 2006
 | 
author/source: Manjit Kataora
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Letsure legal expert Manjit Kataora outlines the correct use of Notices to Quit under Section 21 Housing Act 1988 – commonly referred to as the ‘fast- track’ or ‘accelerated procedure’.

Adopting the correct approach is vital to ensuring a Notice to Quit progresses to a possession order as swiftly as possible. The starting point is to understand that there are two distinct types of notice under Section 21. Where the tenancy is within the ‘fixed term’, a landlord should only serve notice under Section 21(1)(b). By contrast, if a tenancy has moved on from the fixed term and is now in the ‘statutory periodic’ phase, only a notice under Section 21(4)(a) should be used. If the wrong type of notice is used, it is highly likely the court will reject the overall claim for possession.

The Section 21(1)(b) Notice

This should be remembered as the ‘fixed term’ notice. It must provide the tenant with two clear calendar months’ notice to quit the property and has to be issued within the fixed term. Issuing it on the last day of the tenancy is perfectly permissible since it does not matter that the two month notice period stated in the notice expires after the fixed term has ended. There is no prescribed format for this notice, but there are certain minimum additional information requirements which we will refer to later.

So far so easy. However the majority of cases presenting problems are those featuring notices issued after the tenancy has moved into the periodic phase.

The Section 21(4)(a) Notice

This should be used only where the tenancy has already become a periodic tenancy. Its notoriety is earned from many people’s uncertainty as to when it should expire and the correct wording to express that expiry, given the pivotal effect this has upon the success or failure of the entire claim. The same basic rule applies as with the Section 21(1)(b) notice, in that the expiry clause must be expressed to give two clear months’ notice. There are, however, two additional requirements. Firstly, each month of notice provided must be specifically matched to a rental period under the periodic tenancy. Secondly, the notice must be expressed to end after the last day of the latter rental period. The pitfall most commonly encountered is how that expiry is stated. The correct approach is best shown by way of example:

An AST commenced on 1st January 2006 for six months. After this, the tenant stayed on but the landlord did not issue a further fixed term. Therefore, on 1st July, and automatically under Section 5 of the Housing Act 1988, the tenancy became a statutory periodic tenancy. The rental periods for this tenancy can be determined by the start of the fixed term, i.e. the 1st of the month. Therefore the rental periods would be the first to the last day of each month.

At some point in July, let’s say the 15th, the landlord decides he wants back possession of the property. The correct notice will be a Section 21(4)(a) notice under which he must provide two clear rental periods’ notice, and must express the expiry of the notice correctly.

The two rental periods will be 1 – 31st August, then 1 – 30th September. So the correct wording to use would be that he requires possession “after 30th September”. Note he should not say ‘on’ 30th September. If he does this the court are likely to interpret this as short notice – albeit by just a day - and the overall claim for possession could be thrown out.

An added precaution

To help the landlord, it is prudent to draft an additional few words after the expiry date. Usefully, this has the effect of protecting the tenant as well as the landlord. The particular clause allows the tenant (and therefore the court) to calculate the correct expiry of the notice, if by chance the landlord has calculated it incorrectly. So, on the above example, the actual expiry clause would read that the landlord requires possession:

“after 30th September or after the expiry of two clear rental periods soonest after service upon you of this notice”

Let’s say the landlord had drafted his clause to read on “30th September”. On strict interpretation, this was incorrect, being short notice by one day. Without the extra clause, the notice is sunk. With it, it is open to the court to add another rental period on to the first two, so that the correct notice period is provided, and the landlord’s claim is saved (that is, as long as the claim was not issued by the court before the end of this additional rental period).

With the Section 21(1)(b) notice, there are no provisions as to how to draft the expiry provision. However it is suggested that the safest course would be to adopt an approach as closely to the Section 21(4)(a) notice as possible, though in terms of calendar months and not rental periods: that is so that the notice is drafted to expire after the second calendar month rather than on its last day.

Service of Notices

Under law, documents served on a party do not necessarily become served straight away. The Civil Procedure Rules govern both the various methods of serving a document as well as the point in time at which that document is legally served. These provisions apply to notices and must therefore be followed. Most commonly, notices are served by first class post, personal delivery, or leaving them at the tenant’s address.

Notice served by first class post is deemed served in law two days later. So a notice served on Monday will be deemed served on Wednesday. A notice posted first class on Friday will be deemed served on Sunday. A notice served personally, that is physically handed to the tenant, will be served on the same day if the action takes place before 5.00 pm. If handed over after 5.00 pm the notice will be deemed served the next day.

Finally, if a notice is served by leaving it at the address, typically by pushing it through the letterbox, it will be deemed served the next day. Finally, to distil this further, landlords or their agents must add on to the stated period of notice the appropriate time for it to be deemed served in law. In most cases, this will mean dating and issuing a notice at least two days before the actual notice period begins to run. Again, overlooking this could mean the notice period is short, resulting in the possession claim being thrown out.

NOTE: This information only applies to cases in which landlords require possession back as of right – i.e. on a no-fault ground. All references to statutory law refer to the Housing Act 1988.