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Section 20 Notices still haunting landlords

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I recently represented a client who had been the tenant of the same landlord since 1994. The client had moved properties during this time but his landlord remained the same. The landlord had served a Section 21 Notice and issued accelerated possession proceedings against my client.

I filed a defence on behalf of my client arguing that as the original tenancy commenced in 1994, and therefore before 28 February 1997, the landlord was required to serve a Section 20 Notice on my client prior to the tenancy commencing in order to create an assured shorthold tenancy. Otherwise, the tenancy was an assured tenancy which would prevent the landlord being able to take proceedings based on the Section 21 Notice served and therefore would also prevent him from using the accelerated possession procedure.

It is up to the landlord to prove that he served a valid Section 20 Notice in order to create an assured shorthold tenancy. In this case the landlord was unable to produce a copy of the Section 20 Notice he allegedly served. In many other cases it is likely that the Section 20 Notice would be invalid as many landlords have historically failed to meet the strict requirements as to the composition of the notice.

The judge in this case concluded that my client had an assured tenancy and dismissed the claimant’s claim for possession.

It did not matter that the client had signed subsequent tenancy agreements with the landlord or that he had moved into a different property. As long as the parties to the agreement remained the same, the tenancy could not be an assured shorthold tenancy at the new property if it was an assured tenancy at the original property. This is set out in Section 20 of the Housing Act 1988.

It is therefore very important, when faced with these matters, to determine whether the tenancy in question pre-dates 28 February 1997 and if so whether a Section 20 Notice was served. If it was not served, or the landlord can not prove it was served, or the notice is invalid, the tenant will have an assured tenancy rather than an assured shorthold tenancy which clearly is a more secure position for the tenant to be in.

By housing law solicitor Amy Tagoe