Who can serve section 21 notices under the Housing Act 1988?

Section 21 of the Housing Act 1988 enables landlords to terminate assured shorthold tenancies as of right if, among other things, a notice has been served in accordance with the provisions set out in the statute. In particular, section 21(1)(b) enables the court to make an order for possession if (a) the assured shorthold tenancy has come to an end and (b) “the landlord”. has given to the tenant not less than two months’ notice in writing stating that he requires possession of the dwelling-house”. The proceedings in Barrow v Kazim [2018] EWCA Civ 2414; [2018] PLSCS 187 concerned the effect of notices served by the new owners of a building that contained a number of flats, who took steps to end an intermediate tenancy and the assured shorthold tenancies of two of the flats granted by the intermediate landlord at one and the same time. Following the expiry of the intermediate lease, the new owners sought possession from the shorthold tenants. The county court granted the owners an order for possession and the High Court upheld the decision. But the Court of Appeal has sent the new owners back to the drawing board. The 1988 Act defines the term “landlord” to include “any person from time to time deriving title under the original landlord and also includes, in relation to a dwelling-house, any person other than a tenant who is, or but for the existence of an assured tenancy would be, entitled to possession of the dwelling-house”. Lord Justice Newey, who spoke for the court, explained that the new owners were not the “landlord” of the assured shorthold tenants when the section 21 notices were served because they were not then persons who, “but for the existence of an assured tenancy would be entitled to possession”. Had the shorthold tenancies not existed, the new owners would not have been entitled to possession of the property when the notices were served. The intermediate landlord would have been. And, until the intermediate tenancy came to an end, the intermediate landlord had a direct landlord-tenant relationship with the shorthold tenants. The court was unimpressed by the argument that its conclusion would mean that superior landlords would have to wait until an intermediate tenancy determined before serving notices under section 21 of the 1988 Act. The 1988 Act does not say that an intermediate landlord cannot give notice under section 21 for a date later than that on which its own tenancy is to end, or that an intermediate landlord whose tenancy is terminating within two months is no longer a “landlord” within the meaning of section 21. And, in any event, there would be no more than two months’ delay. So now we know. To be effective, a notice under section 21 of the 1988 Act must come from the landlord at the date on which the notice is given. And, if there is an intermediate lease, the fact that the intermediate lease will come to an end by the date specified in the section 21 notice does not mean that the head landlord is the “landlord” as at the date of the section 21 notice. The intermediate landlord had been the landlord when the owners sent their notices to the shorthold tenants. And, as a result, the owners’ notices did not satisfy the requirements laid down in section 21(1)(b). Allyson Colby is a property law consultant