McDonald and another v Fernandez and another

Periodic tenancy — Respondent landlords purporting to terminate tenancy by notice specifying date for possession as day following last day of period — Whether notice complying with requirements of section 21(4)(a) of Housing Act 1988 — Appeal allowed The appellants were the tenants and the respondents were the landlords under an assured shorthold tenancy from 4 September 1999 until 3 March 2000. After the expiry of that term, the appellants remained in possession as statutory periodic tenants from the fourth of each month to the third of the following month. The landlords sought to terminate the tenancy by giving notice pursuant to section 21(4) of the Housing Act 1988. Under section 21(4)(a), such a notice had to state that “after a date specified in the notice, being the last day of a period of the tenancy” possession was required by virtue of that section. The landlords’ notice read: “I require possession of the dwelling house… on 4th January 2003.” In subsequent possession proceedings by the landlords, the district judge struck out the tenants’ defence, a decision that was upheld on appeal to the county court. The tenants appealed further. They contended that the landlords’ notice was defective because the stated date for possession was not the last day of a periodic tenancy, as required by section 21(4)(a), but was the following day. Held: The appeal was allowed. The 1988 Act required the notice to specify a date representing the last date of the period. It did not require the landlords to specify the date upon which they required possession. The notice was not a notice to quit. The landlords would not get possession without the tenants’ consent unless they went to court. This was the reason for the wording of section 21(4)(a). It was not a case in which the legislation permitted a notice substantially to the same effect as the required form. The subsection was clear and precise. It was not difficult for the landlords to comply, since they knew when the period ended. Nor were the consequences of non-compliance particularly serious for the landlords; a defective notice could be cured later, and the landlord was not unwittingly and unwillingly saddled with a tenant who had security of tenure, as with an invalid notice under section 20: Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] 1 EGLR 57 considered; Ravenseft Properties Ltd v Hall [2001] EWCA Civ 2034; [2002] 1 EGLR 9 distinguished. The landlords’ notice did not therefore comply with section 21(4)(a), and was invalid. Mark Simeon Jones (instructed by Abbot Kennedy) appeared for the appellants; Peter Dean (instructed by Bray & Bray, of Leicester) appeared for the respondents. Sally Dobson, barrister