3 Terminating an Assured Shorthold Tenancy
11.70 Shortholds offer the landlord a flexible basis on which to let farm accommodation. A fixed term shorthold tenancy will continue on expiry of the term as an assured periodic tenancy,165 but remain a ‘shorthold’ and will be subject to termination on notice as described below.
It may not be ‘short’ and the tenant will enjoy no security of tenure beyond the fixed term. Similarly, a periodic shorthold may continue indefinitely – the only constraint on the landlord obtaining possession is that this cannot be done during the first 6 months of the tenancy.166 Thereafter the tenancy can be terminated by notice as described below at any time, however long the tenant’s occupation endures.11.71 Termination of an assured short hold can be effected in one of two ways: either by serving a s 8 notice and commencing normal possession proceedings if the tenant fails to vacate, or by serving notice under s 21 of the Housing Act 1988.167 If the tenant fails to vacate following a s 21 notice, an accelerated possession procedure is available to the landlord. If the landlord wishes to terminate a fixed term tenancy during the term s/he can only use the s 8 procedure, and can only do so if there is a break clause in the tenancy agreement allowing for termination prior to the expiry of the term. If the tenancy is a periodic one, or has become periodic following expiry of the fixed term, then a notice to quit must be served as well as a s 8 notice. The s 8 notice must state the grounds on which the landlord wishes to rely to end the tenancy, and these must be grounds specified in Sch 2 to the 1988 Act. If s/he is terminating a fixed term short hold tenancy before the expiry of the term, the landlord can only rely on grounds 2 or 8, or one of the discretionary grounds for possession in Part 11 of Sch 2 (other than Ground 9 or Ground 16).168
11.72 For these reasons, the procedure offered by service of a s 21 notice is often used.
The landlord does not have to specify a ground in Sch 2 to the 1988 Act on which s/he is relying and can terminate the agreement for any reason. And provided the tenancy agreement is in writing the accelerated possession procedure will be available. The only disadvantage of the s 21 procedure (as opposed to that under s 8 above) is that money judgment for rent arrears cannot be sought in proceeding under s 21. Recovery of rent arrears will have to be sought otherwise, for example in a separate civil action for debt. In the case of termination following a s 21 notice the following points should be noted:(i)In the case of a fixed term shorthold tenancy, it can be terminated if the term has expired and no further assured tenancy is in existence other than an assured shorthold tenancy eg a periodic tenancy (whether statutory or not). The landlord must give the tenant not less than two months written notice stating that he requires possession of the dwelling house.169 The notice can be given before or on the day on which the fixed term comes to an end.170 Any statutory periodic tenancy that has arisen following the end of the fixed term will come to an end upon execution of the order for possession made by the court.171
(ii)In the case of a periodic shorthold tenancy, it can be terminated if the landlord has given the tenant notice in writing stating that after a date specified in the notice, possession of the dwelling house is required. The date specified must be the last day of a period of the tenancy, and must be not less than two months after the date the notice was given.172 The date given must also be not earlier than the first date on which notice to quit could have been legitimately given.173 The two-month notice period is the minimum that can be given, and does not abrogate any longer notice period required at common law. So, for example, if the tenant pays rent quarterly or at six month intervals, then notice of a quarter or 6 months’ duration, ending on a termination date, will be required.
In the case of a weekly or monthly periodic tenancy (typically the norm) then two months’ notice will be required. In the case of a longer notice period, there is no requirement to serve a separate notice to quit – only one notice is required under the 1988 Act.11.73 It follows that it is important to carefully specify the date on which possession is required, and in the case of a periodic tenancy (statutory or otherwise) it must be the last day of a period of the tenancy. In practice, difficulty can be avoided by using a variant of the statutory formula for the notice, for example ‘at the end of your period of tenancy, which will end next after the expiration of two months from the service on you of this notice’,174 or words to similar effect. In Taylor v Spencer175 the landlord had incorrectly specified a date for possession that was one day earlier than that on which the tenancy could lawfully be terminated. However, his notice also included a generic formula purporting to claim possession on the day after the next following the expiration of two months from the date of the notice seeking possession. The court of appeal held, notwithstanding, that the notice was effective to terminate the shorthold tenancy. The landlord had granted a fixed term assured shorthold that had continued as a statutory periodic tenancy. The date specified for possession was not the last date of a period of tenancy, and was therefore invalid. Nevertheless, the court held that the generic formal was effective in the alternative to satisfy the requirements of s 21.176
11.74 The court has no discretion to refuse possession if the conditions in s 21 (above) are fulfilled. When the court orders possession any statutory periodic tenancy which has arisen on expiry of a fixed term assured shorthold tenancy shall end (regardless of the period) on the day on which the possession order is executed.177 An accelerated possession procedure will be available in most cases, under Rule 55 of the Civil Procedure Rules.178 This allows for application to be made by originating summons with a supporting affidavit, to which the tenant has 14 days in which to file a reply. This will be referred to a judge who will in most cases make an order for possession without a hearing, although a hearing can be held if s/he is not satisfied as to any of the claims made, or facts alleged, in the application or reply. The accelerated procedure only applies if the tenancy was granted by a written tenancy agreement, where valid notices under s 21 (above) have been served, and where no other claim is being made other than for possession.179 It does not apply, for example, where the landlord seeks forfeiture of a fixed term tenancy, or (as noted above) where the landlord also wishes to seek a money judgment for arrears of rent. In these cases, notice will be required under s 8, followed by regular possession proceedings.