Is there an issue with the validity of a section 21 notice which was signed and dated 6 May 2020, and served by hand on 7 May 2020, where the expiry date of the section 21 notice (in box 2) is stated as being 7 August 2020?

Is there an issue with the validity of a section 21 notice which was signed and dated 6 May 2020, and served by hand on 7 May 2020, where the expiry date of the section 21 notice (in box 2) is stated as being 7 August 2020?

Produced in partnership with Elizabeth England of Five Paper

There are a great many other issues that affect the potential validity of a section 21 notice which are beyond the scope of this Q&A. If a tenancy (either new or replacement) commenced prior to 1 October 2015 then ‘old rules’ apply.

Otherwise, issues arise concerning whether the correct prescribed Form 6A has been used (last amended in June 2020), whether the notice was served after four months of commencement of the tenancy, whether the tenancy deposit was protected and the initial requirements of the tenancy deposit scheme followed, whether and when an energy performance certificate and gas safety certificate had been served, whether a statutory improvement notice had been served on the landlord, and whether any issues raised by the Tenant Fees Act 2019 are relevant.

At the time of writing, the Coronavirus Act 2020 (CA 2020) emergency provisions are in place. They apply to any notices served after 26 March 2020 and before 30 September 2020. This period may be extended further. The main provisions affecting section 21 notices are:

• the section 21 notice should follow the amended prescribed Form 6A

• CA 2020, Sch 29, para 7 extended the minimum period of notice to a tenant to three months

The exact wording of CA 2020, Sch 29, para 7 is:

‘Section 21 of the Housing Act 1988 (recovery of possession on expiry or termination of assured shorthold tenancy) is to be read, in relation to notices given under subsection (1) or (4) of that section during the relevant period, as if—

(a) in subsection (1)(b) for “two months” there were substituted “three months”,

(b) in subsection (4)(a) for “two months” there were substituted “three months”, and

(c) in subsection (4E)(b) for “two months” there were substituted “three months”.’

Schedule 1 of the Interpretation Act 1978 provides that a 'month' means a calendar month.

Commentary: Calendar month running from an arbitrary date: Halsbury's Laws of England [311] states:

‘When the period prescribed is a calendar month running from any arbitrary date the period expires upon the day in the succeeding month corresponding to the date upon which the period starts, save that, if the period starts at the end of a calendar month which contains more days than the next succeeding month, the period expires at the end of that succeeding month.’

Following this guidance, a notice served on 7 May 2020 would expire on the sixth day of the corresponding subsequent month, which would be on three months’ notice, 6 August 2020.

The section 21 notice is not invalidated by ending on the same date of the month as service. However, those serving a section 21 notice must also check the plethora of other matters which may affect validity of a section 21 notice. The law is wide ranging and complex. However, in the case of a validly served notice, the powers of the court are absolute, to give a tenant 14 days to vacate premises, extendable to a maximum of six weeks in the case of exceptional hardship.

For further guidance, see Practice Note: Coronavirus (COVID-19)—implications for property.

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