All content provided by LexisNexis.
Landlord and tenant – Recovery of possession – Order for possession
 EWCA Civ 1600
20 November 2013
Court of Appeal, Civil Division
Sir Brian Leveson P, McFarlane and Lewison LJJ
Oliver Radley-Gardner (instructed by BRM Law Ltd) for the claimant. Iain Colville (instructed by Hopkins Solicitors LLP) for the defendant.
Landlord and tenant – Recovery of possession. A landlord had served a notice for possession on his tenant. The notice specified alternative dates for the expiry of the tenancy; one was a fixed date (which landed on a Sunday) and the other was a formula for calculating the expiry date. The tenant did not move out and the landlord issued proceedings. The judge granted that application and found that, despite the conflicting dates, the notice was valid under s 21 of the Housing Act 1988. The Court of Appeal, Civil Division, held that where a notice to quit specified both a fixed date and also a formula, whether that invalidated the notice depended upon the way in which the two dates were expressed to operate. If a reasonable reader of a notice would understand that one date was the primary date and the other date was a fall back, then there was no reason to invalidate the notice on that account. The notice under appeal was not invalid under s 21(4) of the Act because the Sunday expiry date had obviously been a mistake which would have been known by the tenant and which could not be corrected and, therefore, the expiry date had been calculable by the formula. Doubt was cast on the holding, but not the outcome, of Fernandez v McDonald  4 All ER 1033.
The judgment is available at:  EWCA Civ 1600
On a Monday in February 2006, the defendant tenant entered into an assured shorthold tenancy with the claimant landlord which was originally granted for a period of six months. The rent was payable weekly, with the first payment being made on the date of the tenancy. On the expiry of the fixed term, a periodic tenancy arose under which the rental periods were also weekly. In October 2011, the claimant gave notice requiring possession of the property ‘(a) after 01/01/2012 or (b) at the end of your period of tenancy which will end next after the expiration of two months from the service upon you of this notice’. 1 January 2012 was a Sunday. The notes on the back of the printed form stated that ‘the date specified in the notice must be the last day of a period of the tenancy, at least two months after the notice is given, no sooner than the earliest day on which the tenancy could ordinarily be brought to an end by a notice to quit.’ In April 2012, the claimant issued proceedings seeking possession of the property. He conceded that 1 January 2012 had not been the last day of the period of the tenancy as it had been a Sunday. The judge determined that the notice was valid under s 21 of the Housing Act 1988. The defendant appealed.
The issue for determination was whether the notice to quit had been valid in accordance with s 21(4) of the Act notwithstanding that the date on which possession had been required had been a Sunday.
The appeal would be dismissed.
Where a notice to quit specified both a fixed date and also a formula, whether that invalidated the notice depended upon the way in which the two dates were expressed to operate. If a reasonable reader of a notice would understand that one date was the primary date and the other date was a fall back, then there was no reason to invalidate the notice on that account. If both dates satisfied the requirements of s 21(4) of the Act, and there were no means of knowing which was to take priority, there might be a problem (see ,  of the judgment).
The instant case was to be approached on the basis that, in the case of a notice covered by s 21(4) of the Act, the court could not correct obvious mistakes even if satisfied that a reasonable recipient would have realised that a mistake had been made and had also realised what information the server of the notice had tried to convey. The Act required that a notice under s 21(4) had to specify a date that had the dual characteristics of being (i) two months after the notice was given and (ii) the last day of the period of the tenancy. The notice had referred to two dates. They were clearly alternatives as made clear by the word ‘or’ which separated those alternatives. The reasonable recipient of the instant notice would have looked at the back of the form which contained the notes. Those notes stated that the notice had to specify the last day of a period of the tenancy. She would have known that she had paid her rent on a Monday and she would have been able to see form the calendar that 1 January 2012 had been a Sunday. It had obviously not been the last day of a period of the tenancy. That mistake could not be corrected. But that led to the conclusion that that part of the notice did not do what the notes on the back said it had to do. So, that part of the notice could not be effective. Since that alternative was ruled out on the ground that it was ineffective, the other alternative had to prevail (see , , , , ,  of the judgment).
Fernandez v McDonald  4 All ER 1033 doubted; Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd  3 All ER 352 applied; Hussain v Bradford Community Housing Ltd  HLR 291 considered.