Prior to the recent Court of Appeal decision in Spencer v Taylor  EWCA Civ 1600 any experienced landlord or letting agent thought landlords were only allowed to serve notice under Section 21 (1)(b) up to an including the last day of the fixed term.
That form of notice is quite straightforward as it is at least 2 months’ notice that must not expire before the end of the fixed term. However, this recent decision states that you may also serve it after the expiry of the fixed term during the periodic tenancy that follows. Note that you still cannot use a 21 (1)(b) notice for a periodic tenancy without a prior fixed term AST.
Before this decision conventional wisdom held that after the fixed term had expired the landlord must serve notice under the more tricky Section 21 (4)(a). Sometimes this makes the notice period closer to 3 months than 2 months. You can still use 21(4)(a) notices for periodic tenancies if you wish but they may have a significantly later expiry date.
The practical upshot is that using a 21(1)(b) notice will reduce the time for possession under a statutory periodic AST by up to a month. Good news for landlords where the rent arrears, as is all too often the case, cannot be recovered. Given the unexpected nature of this decision you must check with a solicitor about whether it can be used in your particular case at this time and in the future.
Update: Be sure to look at our Section 21 Checklist for an up-to date list of steps to take to obtain possession.
Jonathan Waters is the founder of Helix Law. Before qualifying as a Solicitor he worked in industry and in investment banking for over a decade. He was also the Partner in charge of Commercial Litigation, Employment Law and Property Litigation at Stephen Rimmer LLP. Jonathan has wide experience of helping and advising businesses to avoid or to deal with commercial disputes and in particular construction disputes.
This article is written to raise awareness of the issues it discusses and it may not be updated after it is first written, even if the law changes. It is not intended to be legal advice and cannot be relied on as such. Helix Law is not responsible or liable for any action taken or not taken as a result of this article. If you think the matters set out affect you and you wish to apply them to your particular circumstances then we are happy to give you free initial telephone advice.