Is the section 21 notice now a risk?

Sorry Mary I still maintain you are misinterpreting what is being said. Whilst Laine V Cadwallader may be about something else the quote from Kennedy is clear

Tenancy agreement says term is from 10th August 2013 to 28th Feb 2014 and thereafter from month to month.
Rent is due first of each month
Initial payment for the period 10th to 31st August is stated to be £450
Rent is £650 pcm and paid on the first of each month.
As from 1st March 2014 tenancy becomes contractually periodic.
The rent is due 1st of each month.
The period is the calendar month.
S21 4 date is last day of any month. Nothing to to with the start date of the tenancy.

Simples.

I have had this queried by some tenants' rights groups, solicitors etc. No objection has been upheld in court.

Quotes from an article in the Estates Gazette written by District Judge Neil Hickman and joint general editor of Jordans’ Civil Court Service:

1: So what is the last day of a period of the tenancy? In the simple case of a periodic tenancy with the rent payable on a Monday, the notice needs to expire on a Sunday. A trap into which it is easy to fall involves the statutory tenancy arising at the end of a fixed-term tenancy where the tenancy began on, say, the 15th of the month but the rent is payable on the 1st. The notice in such a case must expire on the last day of the month, not the 14th.

2. An interesting point arose in Church Commissioners for England v Meya [2006] EWCA Civ 821, where the fixed-term tenancy was for a year less a day, with an annual rent expressed to be payable by quarterly instalments. Was the periodic tenancy which followed it a quarterly tenancy (requiring a quarter’s notice by reason of section 21(4)(b)) or a yearly tenancy (requiring half a year’s notice)? The Court of Appeal said that one should consider the last payment of rent the tenant was obliged to make, and then ascertain the period covered by it. The last payment was payable in advance for the September quarter. So the period was a quarter and the periodic tenancy was quarterly.

I believe this summarises exactly what I believe to be the correct situation

Period? Which Period?
Posted on 06/09/2010 by David Smith
Suvini v Anderson, Staines County Court, 13 August 2010

It is well known that notices under section 21(4)(a) of the Housing Act 1988 must give notice to a tenant that “after a date specified … being the last day of a period of the tenancy … possession of the dwelling-house is required”. This is an issue that has been before appellate Courts a surprising number of times. Most notably in MacDonald v Fernandez [2003] EWCA Civ 1219.

In Church Commissioners v Meya [2006] EWCA Civ 821, the Court of Appeal made a close reading of section 5 of the Act and held that it should be construed as reading that the periods of a statutory periodic tenancy created by that section “are the same as [the periods] for which rent was last payable under the fixed term tenancy.” In short, then, if I pay the rent under the fixed term quarterly then once the tenancy becomes periodic by way of s5 the periods remain quarterly, irrespective as to how rent was then paid. This leaves open two key questions:

What happens if the tenancy becomes periodic by way of contract and section 5 is not involved? and
What happens if the rent payment day is changed during the fixed term? Does this alter the start and finish dates of the periods of the tenancy when the tenancy becomes periodic?
The first question will have to await another day because it was the second of these questions that came before DJ Batcup in Staines.

In this case S had let a property to A from 18th August 2007 to 17th August 2008 with a rent of £1,200 payable on the 15th August 2007 and 15th January 2008. A further tenancy was granted for another 12 months from 18th August 2008 to 17th August 2009, rent being payable bi-monthly in advance starting on the 11th August 2008. After August 2008 the tenancy continued on a periodic basis. A notice under section 21(4)(a) was served on 1 April 2010 seeking possession “after 17 June 2010 or, if later, the day on which a complete period of your tenancy expires next after the end of two months from the service of this notice.”

Basically if the periods of the tenancy were as set out in the tenancy agreement then possession should be given whereas if it was accepted by the Court that the start and finish dates of the periods had been changed by the changed payment provision then the notice would have to rely on its saving provision and could not therefore expire until 10 August. Proceedings were issued before 10 August and so this position would be fatal to possession proceedings.

Ultimately DJ Batcup came down on the side of ruling the notice valid and awarded possession.

This case actually raises a serious question as to what a period actually means. Following DJ Batcup’s view there is an indirect correlation between the payment dates and periods. In other words a periodic tenancy can run from period to period without there being a presumption that rent is due at the start of the period for that period. This is hard to credit and certainly runs counter to the usual rule at common law. The reasoning also runs counter to that of the Court of Appeal in Tadema Holdings v Ferguson where it was held that an agreed change in payment dates did change the periods of the tenancy for the purposes of a s13 rent increase notice. However, in Church Commissioners the Court expressly rejected the idea of a “symmetry between the statutory provision and the common law rule” when considering the length of a period.

Source http://nearlylegal.co.uk/blog/2010/09/period-which-period/

I think at this point we must agree to disagree.

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I agree Mary, the cases we have picked on all agree that the period is the rent DUE date not the day rent is paid.
So therefore we can agree to agree

confusing, seems even the courts cannot get it right. while i have issued s21 notices in the past, i have never had one tested in court, tenants have taken the hint and left voluntary, no doubt one day my luck will run out, maybe that will be the time to pay the experts to do it.

Reply to the comment left by "andrew townshend" at "21/08/2013 - 09:32":

I seriously think it's well worth paying the experts who do this day in day out. If you do manage to cock it up you could easily go another three and a half months (or more) with no rental income. Professional advice costs just a fraction of that.

I've only have to seek possession at Court a few times and I screwed up the first time. The waters have been further muddied by various deposit protection case law since then so I would use a professional next time around, even though I consider myself to be more experienced than most.
.

Reply to the comment left by "Antony Richards" at "21/08/2013 - 09:00":

That was not the question it was
Is the rent payment date the start of the tenancy period or is it the tenancy start date. The case that I have posted clearly says that is it the tenancy start date and that the rent payment periods are not relevant. Which is what the NLA confirmed too.

So we MUST agree to disagree and unfortunately let the readers take their own legal advice.

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Reply to the comment left by "Mark Alexander" at "21/08/2013 - 09:39":

i think that is probably good advise for the future.

Reply to the comment left by "Mary Latham" at "21/08/2013 - 10:14":

OK. We can only agree to disagree.

In itself this is a problem because the answer should be definitive. (which we both feel it is!!)

Reply to the comment left by "Antony Richards" at "21/08/2013 - 21:40":

I have a wide variety of tenancy agreements all periodic. They started in most cases when I was a novice landlord. Some are weekly, four weekly, state a day per week or are monthly.

From my experience if a judge needs to consult a calender you'll have to attend court to explain the technicalities. In short anything other than a monthly tenancy will involve half a day in court or a very precise explanation of the dates used in the n5b form.

"top tip issue monthly tenancies"

In a nut shell monthly periodic tenancies run from day of the month on the agreement to the day before the following month.

Easy case -

6 month tenancy starts 01/02/12 rent payable monthly in advance. 27/9/13 you decide to evict. If you deliver the eviction notice in person same day, 27/09/13 is valid service date (though its advisable to have a witness). If you send via registered post service is deemed as 3 working days later (keep receipt).

Date of service starts the clock, the S21 eviction notice should be dated plus 2 months plus up to the day before the rent is next due.

Therefore if you serve in person the date on your S21 notice should be 27/9/13 + 2 months (27/11/13) + day before rents next due = 30/11/13.

If you post 27/11/12 (this is a Friday), service is deemed to take place on Tuesday. Your date on the S21 should be 01/10/13 + 2 months (01/12/13) + day before rents next due (31/12/13).

Be warned the tenant is entitled to the use of the property for all of the last day of the date of the notice and could in theory move out at 5 to midnight. It's therefore far safer to say you require possession "after" the S21 date rather than "on" the date.

Feel free to PM me for more complicated cases ..... been through most of them.