This case concerns the additional pre-condition of a 6 month notice before a Housing Association can use the shorthold ground to obtain possession where it has granted a tenant an Assured Shorthold Tenancy (AST) for a fixed term of not less than two years.
Section 21(1A) & (1B) of the HA 88 (introduced by the Localism Act 2011) provide that:
(1A) Subsection (1B) applies to an assured shorthold tenancy of a dwellinghouse in England if—
(a) it is a fixed term tenancy for a term certain of not less than two years, and
(b) the landlord is a private registered provider of social housing.
(1B) The court may not make an order for possession of the dwelling-house let on the tenancy unless the landlord has given to the tenant not less than six months’ notice in writing—
(a) stating that the landlord does not propose to grant another tenancy on the expiry of the fixed term tenancy, and
(b) informing the tenant of how to obtain help or advice about the notice and, in particular, of any obligation of the landlord to provide help or advice.
The issue arose in this case because Livewest had granted Ms Bamber a seven year fixed term tenancy, the first year of which was a starter tenancy during which the fixed term could be ended by two months’ notice. On Ms Bamber’s repeated breaches of the tenancy agreement Livewest exercised that option and served a notice which also met the requirements of ss. 21(1)(b) of the HA 88.
The question for the Court of Appeal was whether, where Livewest had exercised the break clause within the starter period, they needed also to comply with ss. 21(1B); i.e. to have served 6 months’ notice on Ms Bamber containing the information set out in ss. 21(1B)(b)?.
The Court, applying a purposive interpretation to the sections, held that ss. 21(1A) and (1B) only apply where the landlord is seeking possession using the shorthold ground after the end of the term of the tenancy. The effect of the two month notice served on Ms Bamber was to end her fixed term tenancy before the expiry of its full term and by HA 88, ss. 5(2) a statutory periodic tenancy arose. Livewest had, therefore, in the service of the ss. 21(1)(b) notice met all of the necessary pre-conditions before it could use the shorthold ground for possession.
The purposive interpretation was based on the use of the word “expiry” in ss. 21(1B)(a), which the Court held must mean expiry by the effluxion of time and not expiry due to a notice being served. In coming to this conclusion, the Court of Appeal noted that careful drafting could have made the position more clear but took heed of the corresponding provisions in relation to Flexible Tenancies: see ss. 107A to 107D of the Housing Act 1985 which were also brought in under the Localism Act 2011. Those provisions, and the Parliamentary statements, made it clear that it was to apply only on the end of the fixed period.
This is a good result for RPSH Landlords who will be able to continue to include starter periods in fixed term tenancies without concern that if they seek to obtain possession of the premises using the shorthold ground during the starter period they will be required to give the tenant a six month notice.
Nicholas Grundy QC and Tristan Salter, instructed by Chris Skinner of Capsticks LLP, appeared on behalf of Livewest Homes.