Barrow v Kazim  EWCA Civ 2414
30th January 2019
The Court of Appeal held that a section 21 notice cannot be served by a superior landlord during the term of a mesne tenancy.
The Respondents were the freehold owners of a block of flats. Their predecessors in title had granted a headlease to a lettings agency on the basis that the agency was then permitted to sub-let the individual residential flats on assured short hold tenancies, which it did.
The Respondents served notice to quit on the agency, and, at the same time, also served section 21 notices on the occupational assured short hold tenants. The question for the court was whether the Respondents, as superior landlords, were entitled to serve a section 21 notice during the currency of the mesne tenancy held by the agency.
The issue was whether the requirement in section 21(1)(b) of the Housing Act 1988 for a section 21 notice to be served by a landlord entitled a superior landlord to serve such a notice.
At first instance, it was held that a superior landlord was entitled to serve a section 21 notice. The statute did not require the landlord to be the landlord at the date of the notice – the essential criterion was whether he was entitled to possession of the premises on the coming to an end of the assured short hold tenancy. In this case, the Respondents would have been so entitled as, once the mesne tenancy had been determined by notice to quit, the occupational tenants would have become the Respondent’s tenants by virtue of section 18 of the Housing Act 1988.
Decision [on appeal]
The decision was reversed on appeal. A section 21 notice needed to be served by a tenant’s direct landlord – there was no reason to construe the statute to include a requirement to look to the future and ascertain what would happen when the assured short hold tenancy came to an end.
This decision makes it clear that a section 21 notice should be given by the direct landlord at the time that the notice is served. Superior landlords are not able to give a section 21 notice to occupational tenants during the currency of a mesne tenancy.