Residential landlords and section 21 notices – which type should you serve?

A recent Court of Appeal case has resolved some uncertainty and now makes it easier for landlords to serve the correct section 21 notice.

A statutory periodic tenancy will arise at the end of a fixed term assured shorthold tenancy. Which type of section 21 notice should be served to end such a tenancy has been a topic of debate for some time as it was unclear if the landlord should serve a notice under section 21(1) or section 21(4). The difference is that a notice under section 21(1) does not have to expire on a particular date but a notice under section 21(4) must expire on the last day of a tenancy period, specifying that possession is required after that day.  Subsequently, it is possible for a landlord to serve an invalid notice under section 21(4) simply by miscalculating the expiry date of the notice.

Since the decision of the court in Spencer v Taylor, it is no longer necessary to comply with the additional requirement of section 21(4) of the Housing Act 1988 if the fixed term of the assured shorthold tenancy has expired and the tenant is on a statutory periodic tenancy.

A section 21(1) notice to evict the tenant should now be served where an assured shorthold tenancy is granted with a fixed term, whether that fixed term has come to an end or not. Where an assured shorthold tenancy is granted as a periodic tenancy from the outset, a notice under section 21(4) should be served.