Some may be aware that where a tenancy is for a fixed term and it continues beyond that fixed term it is considered to be a statutory periodic tenancy and would generally continue to run in that manner until it is determined or brought to an end.
What issues will a landlord have evicting a tenant on a statutory periodic tenancy?
Well, usually the landlord would evict the tenant by relying on section 21 of the Housing Act 1988 allowing the landlord to bring the tenancy to an end on or after the expiry of the fixed term. A common assumption when evicting a statutory periodic tenant would be that the tenancy continues to run from rent day to rent day as this date would usually be the same as the start date and the period would usually be the same as the frequency with which rent falls due.
The recent case of Lappin v Surace demonstrates that things are not always that straight forward.
The facts of the case were as follows. The Landlord Mr Lappin let a property on a 12 month assured shorthold tenancy to a Ms Surace. The fixed term ran from 20th April 2009 to 19th April 2010 (12 months). A deposit was paid and protected but no prescribed information was served upon the tenant confirming this as is required by section 213 Housing Act 2004. At the end of the fixed term the tenancy continued as a statutory periodic tenancy. The rent was payable monthly. The landlord served a section 21 notice the day the tenancy started and then served two more whilst the tenant was still living at the property.
The requirements of section 21 provide that there must be an expiry date on the notice not less than two months away. The second and third notices served by Mr Lappin expired on the last day of the month; 28 February 2011 and 31 October 2011. Mr Lappin issued proceedings and got a possession order.
The court concluded the absence of the prescribed information was irrelevant, and that the rent was payable on the 1st of the month which meant the notice which expired on 31 October 2011 was valid as it expired before the rent was due.
The tenant appealed.
The Appeal concluded that the first notice served was invalid due to the absence of the prescribed information and the other notice (the third) which expired on 31 October 2011 was invalid, as the period of the tenancy would continue to run at the same frequency as rent was due, namely monthly, but that the period of the tenancy was from the 20th to 19th even though the rent was payable on the 1st. The court stated overtly that it didn’t matter what day the rent was due. The notices should have expired on the last day of the fixed term (19th) not the last day of the month (the day before the rent was due on 1st).
The possession claim was therefore dismissed.
What can we take from this?
A landlord who wishes to evict a statutory periodic tenant should take care to ensure they correctly state the end of the fixed term otherwise the notices served will be invalid and with that the possession claim will be dismissed as well.
At Benchmark Solicitors London we can assist you with the eviction of tenants to make sure that you don't suffer the same pitfalls as Mr Lappin. Please see our Tenant Eviction Page for more information.
Louise Delgado, Solicitor – 19th August 2012