London Central County Court on 9 August 2023 decides that the CPR deemed service provisions are to be applied when interpreting s21(1)(b) of the Housing Act 1988 – has this judgment set an important precedent?
The writer’s lay client, a landlord of a residential property in Hackney, London served a section 21 notice by Royal Mail, first class post on his tenants. They initially had a fixed term assured shorthold tenancy agreement which became an assured shorthold statutory periodic tenancy.
The section 21 notice was dated and posted to the tenants on 28 November 2022. It was deemed served on 30 November 2022, the second day after posting pursuant to CPR 6.26. The landlord filed a Certificate of Service confirming the same.
The notice provided for possession to be given on 31 January 2023; thus not less than two months after the notice, for the purposes of section 21(1)(b) of the Housing Act 1988.
In defence of the possession claim, the tenants provided a witness statement and Royal Mail proof of delivery documentation evidencing that the section 21 was actually served on 28 December 2022, when the tenant signed for the notice at 10:10am the same day. Thus, they asserted they had been provided with less than the requisite two months’ notice or more and the possession claim should fail.
As an aside, they also asserted that they had not received an up to date gas safety certificate and How to Rent booklet before the notice was served, both assertions were however defeated by the oral evidence of the landlord at the final hearing, at which the Defendant tenants failed to appear.
The relevant provisions of section 21(1) of the Housing Act 1988 provide:
‘(1) Without prejudice to any right of the landlord under an assured shorthold tenancy to recover possession of the dwelling-house let on the tenancy in accordance with Chapter I above, on or after the coming to an end of an assured shorthold tenancy which was a fixed-term tenancy, a court shall make an order for possession of the dwelling-house if it is satisfied –
(a) that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than an assured shorthold periodic tenancy (whether statutory or not); and
(b) the landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than two months’ notice in writing stating that he requires possession of the dwelling-house.’ [emphasis added].
Accordingly the judge had to interpret the meaning of “given” for the purposes of section 21(1)(b) of the Act.
Was this when the notice was deemed served on 30 November 2022, such that the requisite two months’ notice had been provided or was it when it was actually received, such that the period was insufficient resulting in the notice being defective and the possession claim failing?
The Central London County Court found in favour of the landlord (writer’s client), adopting the deemed service provisions in the CPR so as to satisfy the two months’ notice requirement in the Act, as opposed to the date of actual service.
It should be noted that fairness and justice were also considerations for the judge, albeit as an aside, and weighed on the side of the landlord. The particular facts of the present case being that the tenants had already had longstanding notice of the landlord’s desire to obtain possession; an earlier section 21 notice having been served by the landlord on the tenants, but the case having been struck-out.
Further, the tenants - neither through their Counsel or in person - appeared at the final/second possession hearing to propound their case. Conversely, the landlord was present, provided oral evidence to the Court and legal arguments were made by the writer/ Counsel in support of his position.
The landlord was awarded his costs and written submissions of exceptional hardship by the tenants were dismissed. Consequently an outright possession order was granted, with possession to be given within the standard 14 days.
This decision in Isiguzu v Hemmami and Hemmami (K00CL603; heard on 9 August 2023 by Deputy District Judge Hull (reported)), albeit only at County Court level (so of persuasive authority only) may set an important precedent for when a section 21 notice is ‘given’ for the purposes of the statute, and hopefully avoid extensive litigation in cases where it may be disputed (whether legitimately or otherwise) that the tenants had actually received the requisite notice required under the legislation.
Read the judgement here.
LARA HICKS © 2023
BARRISTER
33 BEDFORD ROW
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