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Know your Obligations – Management of Mixed

3 January 2014

This article forms Part Two of a mini-series; Part One focussed on some of the key issues in the management of mixed use premises not directly associated with termination of the residential tenancy. This article focuses on the termination of such tenancies via section 21 of the Housing Act 1988. Part Three will address terminations under section 8 of the same Act.

As was the case in Part One, this article assumes that the type of tenancy being considered is an assured shorthold tenancy.

The termination of such tenancies is a highly regulated area and one in which great care must be exercised; it is very easy to get it wrong and many technical breaches can prove fatal. Indeed, there are only two effective ways of forcing termination; that via section 8 of the Housing Act 1988 and that via section 21 of the same Act.

It should also be made clear that service of a notice pursuant to one of the methods highlighted above does not bring such a tenancy to an end; this can only be achieved by the tenant acting in accordance with the notice and leaving or the Court making an Order for Possession.

Termination Pursuant to Section 21 of the Housing Act 1988

The primary (and most common) method of terminating an assured shorthold tenancy is via notice served pursuant to Section 21 of the Housing Act 1988 (“Section 21”).

Under Section 21(i), provided that notice is served on or before the day on which the tenancy comes to an end, the Court will make an Order for Possession if it satisfied that:

  • the tenancy has come to an end and no further assured tenancy (whether shorthold or not) has come into existence at that time (save for an assured shorthold periodic tenancy), and
  • the landlord (or in the case of joint landlords at least one of them) has given the tenant not less than two months’ notice in writing stating that possession is required.

Alternatively, in the event that notice is being served after expiry of the tenancy, the Court will make an Order for Possession under Section 21(4) if it is satisfied that:

  • the landlord (or in the case of joint landlords at least one of them) has given the tenant written notice stating that, after a date specified in the notice (such date being the last day of a period of the tenancy and not earlier than two months after the date the notice was given), possession is required by virtue of Section 21(4), and 
  • (the date specified in the notice above is not earlier than the earliest date on which, but for the provisions of the Act, the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the notice referred to above.

Absent human rights’ issues, there is therefore no element of discretion available to the Court; provided that the landlord can prove the two elements that relate to the relevant notice then the Court is bound to grant the Order.

However, there are a number of considerations that commonly cause landlords difficulty in this regard.

These include (but are not limited to):

  • Failure to give adequate notice - Depending on when the notice is served in relation to the expiry of the fixed term of the tenancy can cause significant difficulty. With a section 21(1) notice, it is more straightforward; however, this is not the case at all for section 21(4) notices and any notice must be prepared with great care.
  • Failure to give a clear written notice setting out all of the statutory requirements - Although there is no prescribed format for a section 21 notice (whether under subsection (1) or (4), the format used must ensure that it encompasses all of the statutory requirements. Failure to do so will render the notice invalid.
  • Failure to serve the notice validly - There is no statutory prescribed method of serving section 21 notices. The landlord must therefore do everything necessary to bring the notice to the tenant’s attention. For certainty this will require personal service with proof of service obtained. Invalid service will be fatal.
  • Failure to comply with the rules on tenancy deposit schemes - If the rules on tenancy deposit schemes have not been complied with then the landlord is unable to serve a section 21 notice.

It is therefore essential that landlord treads with the utmost care when seeking to bring a tenancy to an end via the section 21 notice route. Whilst the risk of failure is significant, the rewards for those who get it right give much greater certainty to the possession process. 

For more information please contact Tim Jenkins, Partner

T: +44 (0)1483 252529