Feeling generous, and dreaming of a vacation on a yacht off the South of France, IP Draughts has devised a drafting competition with a prize. Your task, if you accept it, is to suggest a better way of drafting a notorious provision from UK legislation, described below. The prize for the best answer (as judged by IP Draughts) will be a free copy of the recently-published, third edition of our book, Drafting and Negotiating Commercial Contracts.
The Housing Act 1988 provides a method by which a landlord can require a tenant of residential property to leave the property at the end of the lease. This is a rare exception to the usual protection from eviction given to residential tenants in England and Wales. At the end of what is called an “assured shorthold tenancy”, the court will make an order giving the landlord possession of the property, provided certain statutory procedures are followed. One of these procedures is concerned with the form of notice to quit that must be given. Section 21(4) is worded as follows:
(4)(a) that the landlord or, in the case of joint landlords, at least one of them has given to the tenant a notice in writing stating that, after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the dwelling-house is required by virtue of this section; and
(b) that the date specified in the notice under paragraph (a) above is not earlier than the earliest day on which, apart from section 5(1) [which provides that the service of a notice to quit is of no effect in relation to a periodic assured tenancy], the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the notice under paragraph (a) above.
A problem that has been encountered with the above provision is that it is very technical, and a trap for the unwary; if the lawyer drafting the notice does not word it correctly and give exactly the right period of notice, the court may declare the notice invalid under section 21(4) and refuse to make an order in favour of the landlord. This has happened on a number of occasions. This has led to lawyers drafting notices that track the wording of the above provisions – making them bullet-proof but completely incomprehensible to the tenant. See this week’s Law Society Gazette, where these points are discussed in more detail.
You are free to change the rules for giving notice, as part of your redrafting, provided you make clear what you are doing. The general scheme though, should remain, ie:
- 2 months or more notice to be given
- notice to be given a few months before the expiry of the tenancy
- notice to make clear that the landlord wants the property back
- the text should “work” as a substitute for the text quoted above
Over to you. Entries may be made in the comments section of this blog article or by email to firstname.lastname@example.org. Valid entries must include the name and address of the entrant (otherwise how can we send them the book?) Competition closes on 9th August 2012. We may publish the winning entry and name of the winner on this blog.