Notting Hill Housing Trust v Roomus

LORD JUSTICE DYSON: The issue that arises on this appeal concerns the validity of a notice purportedly served by the claimant pursuant to section 21(4) of the Housing Act 1988 (“the 1988 Act”). By his judgment given on 28 September 2005, District Judge Plaskow held that the notice was valid and dismissed the defendant’s application to set aside a possession order that he had made on paper under the accelerated possession procedure. The judge himself gave the defendant permission to appeal to this court pursuant to CPR 52.14(1) because he considered that the issue was of some general importance and that the case had exposed a possible conflict between two decisions of this court. These are Lower Street Properties Limited v Jones [1996] 28 HLR 877 and Fernandez v McDonald [2003] EWCA Civ 1219, [2004] 1 WLR 1027.

Section 21(4) of the 1988 Act provides so far as material:

“Without prejudice to any such right as is referred to in subsection (1) above, a court shall make an order for possession of a dwelling-house let on an assured shorthold tenancy which is a periodic tenancy if the court is satisfied –

(a)

that the landlord or, in the case of joint landlords, at least one of them has given to the tenant a notice in writing stating that, after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the dwelling-house is required by virtue of this section; …”

The facts of this case are not in dispute. By an agreement dated 26 July 2000, the claimant granted an assured shorthold periodic tenancy of premises at 41 Bulstrode Avenue, Middlesex, TW5 (“the property”) to the defendant. By a notice dated 12 December 2000, the claimant purported to give the defendant:

“NOTICE THAT POSSESSION IS REQUIRED (by virtue of section 21(4) Housing Act 1988 … of the [property] … which you hold as tenant at the end of the period of your tenancy which will end after expiry of two months from the service upon you of this notice”.

The sole issue is whether this is a valid notice. Mr Panton submits that the notice is invalid because it contains the phrase “at the end of the period of your tenancy” instead of “after the end of the period of your tenancy”. The point may seem to involve hair- splitting, but unless the notice complies with the requirements of section 21(4) it is invalid. The form of notice was in a standard form apparently used by the claimant at the time. I understand that the standard Oyez form currently in use states: “I require possession after [the date] …”.

In the Lower Street Properties case the landlord had served a notice which did not name a date in the month on which possession was required. Rather, it stated that the notice would expire: “at the end of the period of your tenancy which will end after the expiry of two months from the service upon you of this notice” (emphasis added). It was submitted on behalf of the tenant that this form of wording did not “specify” the date on which possession was required. This submission was rejected by this court. Kennedy LJ, with whom Phillips and Schiemann LJJ agreed, said (p 882) that the tenant knew or could easily ascertain from this form of wording the date referred to by the notice. No argument was addressed to the court as to whether the words “at the end of the period of your tenancy etc.” satisfied the requirement that the landlord give a notice stating that possession was required “after a date specified in the notice, being the last day of the period of your tenancy etc.”. For present purposes, it seems to me that the importance of this decision is that it sanctioned the use of the formula as being sufficient to specify the last day of a period of a tenancy: it is not necessary to specify a calendar date.

In Fernandez, the tenants occupied a property under a statutory periodic tenancy which ran from the fourth day of each month to the third day of the following month. The landlords served a notice on the tenants stating that they wanted possession “on 4 January 2003”. This court (Potter and Hale LJJ) held that the notice was invalid: it did not state that possession was required “after a date specified in the notice, being the last day of a period of the tenancy”. The principal judgment was given by Hale LJ. At paragraph 10, she referred to the judgment of Kennedy LJ in Lower Street Properties and the saving formula to which I have already averted. She said: “We are told that landlords do often use this saving formula, but they did not do so in this case”.

As regards the validity of the notice in Fernandez, Hale LJ said this at paragraph 22:

“But if the question is, what does the statute require, the answer is that the statute requires the notice to specify a date which is the last day of the period. The statute does not require the landlord to specify a day on which he requires possession. This is not a notice to quit. The landlord will not get possession without the tenant’s consent unless he goes to court. That is why the statute requires the landlord to state that possession is required ‘after a date specified in the notice, being the last day of a period of a tenancy’.”

I can see no conflict between these two decisions of this court. Hale LJ did not identify any conflict. No such conflict has been identified in the commentary on Section 21(4) in Volume 2 of the White Book 2005 paragraph 3A-823 whose text includes the following:

“In order to be valid, a notice served upon a periodic assured shorthold tenant –

“1)

must specify a date after which possession is required – either by inserting a particular date or by using a formula, as in Lower Street Properties v Jones (above);

“2)

give a date which is the last day of the period of the tenancy, and not any other day. The fact that the notice is too long does not save it from being defective. (McDonald v Fernandez [2003] EWCA Civ 1219 (above));

“3)

make it clear that possession is required after that date, not on it. This can be done either by stating ‘I require possession after [the date]’ or by saying ‘This notice will expire on [the date]. Proceedings cannot be commenced until after that date’. It cannot be done by stating ‘I require possession on [the date]’ because ‘on [the date]’ and ‘after [the date]’ are not the same thing”.

In the course of his arguments, Mr Panton has suggested that there is a conflict between these two authorities. He refers to the following sentence at the foot of page 882 of the judgment of Kennedy LJ in the Lower Street Properties case:

“Section 21(4)(a) requires the notice to specify the date when possession of the dwelling house is required”.

He submits that that is incorrect because the statute plainly does not require the notice to specify when possession of the dwelling house is required, as was made clear by Hale LJ in the Fernandez case.

I would accept that this sentence in Kennedy LJ’s judgment does not accurately reflect the language of the statute, but it forms no part of the ratio of Kennedy LJ’s decision. It appears in a paragraph in which he is dealing with a completely different point, which is the submission that the notice did not, on its face, show when it was served. I do not therefore consider that the inaccuracy contained in that sentence exposes a real conflict between the two decisions.

Mr Panton submits that to say that possession is required “at the end of the period of your tenancy” is materially different from saying that possession is required “after the end of the period of your tenancy”. He submits that the former is analogous to saying that possession is required on a specified date and this is contrary to section 21(4): see paragraph 22 of Fernandez.

As Fernandez makes clear, section 21(4) requires the notice to specify a date which is the last day of the period of the tenancy. In that case, the notice specifying 4 January 2003 as the date on which possession was required was bad for two reasons. First, it did not specify 3 January 2003 as the last day of the period of the tenancy. Secondly, it did not state that the possession was required “after a date specified in the notice being the last day of the period of the tenancy”.

So far as the first of these defects was concerned, the date could have been specified by reference to what Hale LJ referred to as “the saving formula” and the formula to which she referred was the one approved in Lower Street Properties. I accept that her approval of a formula which used the words “at the end of the period of your tenancy” rather than “after the end of the period of your tenancy” is not determinative of this appeal. This is because, as I have said, no argument was addressed to the court in Lower Street Properties as to the efficacy of the words “at the end of” rather than “after the end of”, and Fernandez was not a formula case. Moreover, since a formula had not been used in Fernandez, it was not a necessary part of Hale LJ’s reasoning to say anything about the precise wording of a suitably drafted saving formula.

I come, therefore, to the short question that arises on this appeal: do the words “at the end of the period of your tenancy” mean the same as “after the end of the period of your tenancy”? The judge held that they do. I agree with him. The phrase “at the end of the period of your tenancy” clearly does not mean the same as “on the last day of the period of your tenancy”. The period of the tenancy does not come to an end until midnight on the last day of that period. As Nourse LJ said in Mannai Investment Company v Eagle Star Assurance Company [1995] 1 WLR 1508, 1530H the last moment of time on one day is not the same as the first moment of time on the next: “The two moments of time, albeit separated by an immeasurable stroke of midnight, have always been treated as separate”. Thus immediately before midnight on the last day, the period of the tenancy has not yet ended. As soon as midnight on the last day strikes, the period has ended.

In my judgment, the phrase “at the end of the tenancy” means “after the end of the tenancy”. It does not refer to the split second in time when the tenancy comes to an end. It is a normal use of language in a temporal context to use the phrase “at the end of” to mean “after the end of”. Thus a request to an audience that they should remove all their belongings “at the end of the concert” is not asking the audience to do something at the split second when the last note is played. It is asking them to do something after the end of the concert. Similarly, to say that the soldiers came home “at the end of the war” means that they came home after the war had ended or after the end of the war. It does not mean that they came home at the split second when the enemy surrendered.

In my view, the judge reached the right conclusion. I would dismiss this appeal.

LORD JUSTICE MUMMERY: I agree.

SIR MARTIN NOURSE: I agree.