2 Notice of intention to claim

9.04 By virtue of s 83(2) of the 1986 Act no claim, by either landlord or tenant, is enforceable unless before the expiry of two months from the termination of the tenancy, the claimant has served notice in writing on the other party of his intention to make a claim.

9.05 All claims for compensation are assigned for determination by arbitration under the Arbitration Act 1996, or by third party determination. The parties may, within the period of eight months from the termination of the tenancy, by agreement in writing, settle any claim for compensation.³ Where, however, by the expiry of the eight-month period from termination the parties’ claims have not been settled by written agreement, then they must be determined either by arbitration or, since 26 May 2015 by third party determination as an alternative to arbitration.⁴ Problems may arise where the tenancy is terminated by notice to quit, with the tenant holding over in possession as a tenant at will following termination. Section 83(6) accordingly provides that where a tenant lawfully remains in occupation of part of a holding after the termination of a tenancy, references in s 83(2) to the service of notice within two months of termination shall, in the case of a claim relating to that part of the holding still occupied, be construed as a reference to termination of the tenant’s occupation of the holding. Notice must therefore be served within two months following the termination of occupation of that part of the holding.

9.06 It would appear that notice of claim under s 83 can be validly served before the termination of the tenancy, ie that the requirement of service ‘before the expiry of two months from the termination of the tenancy’ does not preclude service prior to termination, which of necessity will also be service before a date two months after the date of termination of the tenancy (this being the requirement imposed by the Act).⁵