Application of notice requirement under s21(1B) Housing Act 1988 during probationary period of AST

Monday 15 October 2018

Livewest Homes Ltd v Bamber [2018] EWHC 2454 (QB), 27 September 2018

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Livewest Homes Ltd v Bamber [2018] EWHC 2454 (QB), 27 September 2018

SB was the assured shorthold tenant of Livewest, a private registered provider of social housing. She was first granted a tenancy on 20 January 2015, for a fixed term expiring in 2022. This first tenancy provided for a ‘probationary’ or ‘starter’ period at the outset of the term. Following (disputed) allegations about SB’s conduct, Livewest served a notice under s21 Housing Act 1988 and brought possession proceedings. These proceedings were compromised after a period of litigation (culminating in the Court of Appeal granting SB permission to bring a second appeal) with an agreement that SB would be granted a further seven year fixed term tenancy commencing on 27 February 2017 and including a further starter period.

The second tenancy included a break clause permitting Livewest to end the tenancy during the starter period upon two months written notice ‘in any form’. The tenancy also provided for a right of review against the decision to serve such a notice. As to the starter period itself, the tenancy stated that:

‘This tenancy is subject to a starter period of 12 months. If you break your side of the agreement during the starter period we may give you notice requiring you to give us possession of the property. If we are concerned at your conduct of the tenancy we may, at our discretion, extend the starter period by up to 6 months by giving you written notice.’

In August 2017, following further allegations of anti-social behaviour, Livewest served a notice which purported to be a s21 Housing Act 1988 notice combined with a notice activating the two month break clause. The decision to operate the break clause was upheld on review, following which possession proceedings were instituted. SB sought to defend the claim arguing that the notice failed to comply with s21(1B) Housing Act 1988, as well as relying on a public law defence and a defence under the Equality Act 2010.

The issue of compliance with s21(1B) was dealt with as a preliminary issue and was decided against SB. SB appealed to the High Court against that decision. Dingemans J dismissed her appeal.

The relevant parts of s21 Housing Act 1988 are as follows:

‘(1A) Subsection (1B) applies to an assured shorthold tenancy of a dwelling house in England if—

(a) it is a fixed term tenancy for a term certain of not less than two years, and

(b) the landlord is a private registered provider of social housing.

(1B) The court may not make an order for possession of the dwelling-house let on the tenancy unless the landlord has given to the tenant not less than six months' notice in writing—

(a) stating that the landlord does not propose to grant another tenancy on the expiry of the fixed term tenancy, and

(b) informing the tenant of how to obtain help or advice about the notice and, in particular, of any obligation of the landlord to provide help or advice.’

The issue was whether or not Livewest had been required to give six months’ notice pursuant to s21(1B). It was common ground between the parties that, prior to the service of the notice on 9 August 2017, the provisions of s21(1A) were satisfied (notwithstanding concerns expressed by Dingemans J as to whether the tenancy could be regarded as being for a ‘term certain’ during the starter period, owing to the existence of the break clause and the variable length of the starter period) meaning that s21(1B) applied.

However, following service of the notice on 9 August 2017, the tenancy ceased to be a fixed term tenancy and became a statutory periodic tenancy meaning that the conditions in s21(1A) were no longer satisfied and the requirement for six months’ notice under s21(1B) did not apply.

The matter was remitted for consideration of the public law and Equality Act 2010 limbs of the defence.

The judgment is available here: Livewest Homes Ltd v Bamber [2018] EWHC 2454 (QB)

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