Thankfully, the law of appropriation is relatively clear and established. It was explained in good detail in the Court of Appeal case[amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest'] Thomas v Ken Thomas Ltd [2006] EWCA Civ 1504 where at para 19 it was stated (author added words [landlord] and [tenant]):

19.  The relevant principles are accurately set out in Chitty on Contracts, 29th Edition Vol 1 at paragraph 21.059-21.061:

“21.059: Rights to appropriate payments. Where several separate debts are due from the [tenant] to the [landlord], the [tenant] may, when making a payment, appropriate the money paid to a particular debt or debts, and if the [landlord] accepts the payment so appropriated, he must apply it in the manner directed by the [tenant]; if, however, the [tenant] makes no appropriation when making the payment, the [landlord] may do so.

“21.060: Debtor’s rights to appropriate. It is essential that an appropriation by the [tenant] should take the form of a communication, express or implied, to the [landlord] of the [tenant's] intention to appropriate the payment to a specific debt (or debts) so that the [landlord] may know that his rights of appropriation as [landlord] cannot arise. It is not essential that the [tenant] should expressly specify at the time of the payment, which debt or account intended the payment to be applied to. His intention may be collected from other circumstances showing that he intended at the time of the payment to appropriate to a specific debt or account. ….

“21.061: Creditors’ right to appropriate. Where the [tenant] has not exercised his option, and the right to appropriate has therefore devolved upon the [landlord], he may exercise it at any time “up to the very last moment” or until something happens which makes it inequitable for him to exercise it. [I omit the rest of the paragraph].”

Therefore, if the tenant when paying the £200.00 says “this payment is for my new tenancy” (or similar) then, the landlord is bound by that statement. However, if the tenant remains silent, it is for the landlord to decide where to appropriate the amount (unless it can be somehow implied as to which tenancy the payment was for). Of course, the landlord should always appropriate to the previous tenancy because that way the new tenancy is developing arrears making the section 8 notice on rent arrears grounds easier.

Where an appropriation is done by the landlord, it would very wise to insert details of the appropriation on any receipt issued as this would assist with any questions that may arise later and would also help with any question of “implied” appropriation.

Housing Benefit

One unanswered question (by the courts) though is what about a housing benefit payment? The cheque or statement will always contain the dates to which the payment relates. Are these dates appropriating the amount to those specific dates and no other? I would respectfully submit no. Our view is that the law of appropriation remains as described above and that the dates on the cheque or statement are nothing more than showing the dates of the tenant’s “entitlement” to housing benefit and are not necessarily dates showing the actual “rent” being paid. It is therefore still acceptable for a landlord to appropriate a housing benefit payment to an earlier tenancy for example in our view.

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As coincidence, I have a personal possession case to hand into the court tomorrow so I have been able to fully test the new form and it seems overall easier to complete and certainly less paragraphs to strike through and delete. The form relies much more on tick boxes than before which can only be a good thing.

There is one confusing point namely under new paragraph 7 where the deposit is being talked about, the form asks for “My reference number”. It is unclear what this means but after brief discussions tonight (apologies to @nearlylegal and @ddortongibson for the twitter DM’s late tonight!) we all seem to be on the general consensus that this means the deposit ID where possible as that seems to be the most logical thing to ask for.

We have totally overhauled our guidance on completing the accelerated possession claim form which is available here

This is a case we helped one of our members with some years ago and we rely upon on many occasions. It is a very important High Court (so binding) authority for the purposes of seeking possession based on an assured shorthold tenancy that is (a) less than six months (as allowed since 1997) and (b) where court proceedings are commenced before six months from the date the tenant moved in.

(I thought this was already on the webisite but it seems it wasn’t (perhaps I didn’t bring it across properly when we changed website)).

Section 21(5) Housing Act 1988, as amended, says:

Where an order for possession under subsection (1) or (4) above is made in relation to a dwelling-house let on a tenancy to which section 19A above applies, the order may not be made so as to take effect earlier than—

(a)in the case of a tenancy which is not a replacement tenancy, six months after the beginning of the tenancy, and

(b)in the case of a replacement tenancy, six months after the beginning of the original tenancy.

This can cause confusion because many judges, advisers and practitioners believe this means that a section 21 notice must not expire until at least six months has elapsed, or that an assured shorthold tenancy agreement must be for at least six months.

Background

David Ratcliffe (a member) let a property to Miss Parkes on 11 May 2005. The fixed term was for three months from 11 May 2005 to 10 August 2005. On 18 July 2005, Mr Ratcliffe gave Miss Parkes a notice under section 21(1)(b) Housing Act 1988 requiring possession of the dwelling house on the 21 September 2005.

Miss Parkes failed to give up possession and so a claim for possession using the accelerated possession procedure was issued.

As a defence was filed, a hearing was called and on 23 November 2005, Deputy District Judge Reed refused to order possession on the following grounds:

The section 21 notice given in this case had been set to expire, (as the Deputy District Judge put it), before 6 months of the tenancy had expired. And, “…That it does not expire on a rent day that is more than two [months] after the day on which it was served.”

The landlord, Mr Ratcliffe appealed which was heard in the High Court on 14 March 2006.

Appeal

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The landlord Mr Ratcliffe appealed on the basis that the deputy district judge had erred in law in refusing possession and that indeed possession should have been ordered.

In respect of the first reason for refusing possession, His Honour Judge Langan QC said:

Here in my judgment the Deputy District Judge fell into what, regrettably, might be described as an elementary error. He confused the provisions of section 21(1) which deals with the amount of notice to which the tenant is entitled with the provisions of section 21(5) which bars the court from making an order to take effect earlier than 6 months after the beginning of the original tenancy. Section 21(5) has no bearing whatever on the way in which a notice under section 21(1) must be given. These provisions deal with entirely separate matters. Provided that notice is given in accordance with section 21(1)(b) the court is bound to make an order for possession if all other necessary conditions are satisfied. Section 21(5) merely details the court from making an order to take possession before a specified date. [para 10]

And, on the second point:

Here, as it seems to me, the Deputy District Judge fell into another elementary error. He confused the provisions of Section 21(1)(b) dealing with notices of intention to recover possession of premises let on fixed term tenancies with section 21(4)(b) dealing with notices of intention to recover possession of premises let on periodic tenancies. As is well known, at common law a notice to quit in relation to a periodic tenancy must be given for what is sometimes called a ‘rent day’ or the rent day which shall next elapse more than so many weeks or months after the notice is given. That concept has been imported into section 21(4) of the Housing Act 1988 by a decision of the Court of Appeal in the case of Fernandez v MacDonald [2003] 4 All ER 1033 which is familiar to practitioners in that area, but that case (contrary to what the Deputy District Judge appears to have thought) has nothing to do with notices of intention to acquire possession where the tenancy is for a fixed term. There, there is no requirement as to the type of day which should be specified in the notice. [para 10]

The appeal was allowed and possession ordered.

The approved judgment is available here

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An interesting case which we assisted one of our members with, which if does nothing else, helps summarising the procedure to follow if an accelerated possession procedure doesn’t go according to plan. This case also illustrates that you could have a very straightforward claim for possession but experience severe delays (in this case 4 months).

Full compliments must go to the member for this one as at the ultimate hearing that was necessary, she was very nervous but did a sterling job.

Background

On 24 December 2009, the claimant landlord granted an assured shorthold tenancy to the defendants. The core terms of the tenancy were that it was for a fixed term from 24 December 2009 for a term of “12 months.” It thereafter continued as a statutory periodic tenancy (see s.5 Housing Act 1988). The rent was payable at the rate of £1200.00 in advance on the 24th day of every calendar month.
On 2 September 2010 a notice pursuant to section 21(1)(b) Housing Act 1988 was served on the defendants which required possession after 23 December 2010.

After the notice expired, the landlord made a claim for possession using the accelerated possession procedure on the usual form N5b where normally no hearing is required.

On 23 February 2011 (but not notified until 2 March 2011), District Judge Jenkins struck out the claim for possession and the reason for striking out the claim was: “The S21 states a date before expiry of the fixed term”

Under Civil Procedure Rule 55.16(4)(b) the claimant is allowed to apply to restore the claim within 28 days after the order (to strike out) is made, which was done by the landlord on 17 March 2011.

We had to guess at why the court struck out the claim and we assumed the following:

(1) That the District Judge was of the belief that because it is a 12 month fixed term tenancy that commenced on 24 December 2009, the last day of the fixed term was 24 December 2010 and therefore the notice expired one day too early (23rd) (this was the most likely) or,

(2) That the District Judge believes the last day of the fixed term is the 23rd but that a section 21(1)(b) notice may not expire on the last day and must instead expire sometime after the last day of the fixed term.

What is the last day of the fixed term?

“… the modern law is that since a yearly tenancy in strictness expires at midnight of the day before the anniversary of its commencement … [Yeandle v. Reigate B.C. [1996] 1 E.G.L.R. 20, following Sidebotham v. Holland [1895] 1 Q.B. 378.] A similar rule applies to weekly or monthly tenancies. [Crate v. Miller [1947] 2 All E.R. 45.]” [Para 17.255 Woodfall Landlord and Tenant]

In Yeandle v. Reigate B.C. [1996] 1 E.G.L.R. 20 it was stated by the Court of Appeal (Highlights added):

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“In my judgment, a valid 12 months’ notice in writing to determine the tenancy from year to year, commencing on September 29 1968, may, if given in time, specify either September 28 or 29 in a subsequent year as the date for delivery of possession because the tenancy would be construed as ending on the last moment of the 28th or on the first moment of the 29th.” [p 21G]

Somervell L.J. who gave the leading judgment in Crate v. Miller [1947] 2 All E.R. 45 stated:

“The judge found that the tenancy was a weekly one beginning on a Saturday, which he described as a “Saturday to Saturday tenancy.” There was clear evidence on which he could so find. He referred in his judgment to Sidebotham v. Holland, a decision of this court, which concerned a yearly tenancy beginning on May 19. The question was whether a notice to quit and deliver up possession on May 19, being an anniversary of the day on which the tenancy began, was good. It seems to us clear that all the members of the Court were of opinion that a notice to quit on the 18th would have been a good notice. A. L. Smith L.J. doubted whether the notice to quit on the 19th was a good notice, because, as he said “It is not a notice expiring upon the last day of the year of the tenancy, but upon the day after.” …”

And continued (highlights added) …

“We would like to add that the expression “Saturday to Saturday tenancy,” which was used by the county court judge in this case and by Salter J., in the Divisional Court is, or may be, misleading. If a tenancy for a week begins on a Saturday it expires at midnight on the following Friday. We think that Salter J. was wrong when he treated the Monday as the second of the seven days forming a current week of the tenancy. If a tenancy begins on a Saturday, we think that Monday is the third of the seven days forming a current week.”

It was therefore submitted that where a tenancy does not express an actual end date of the fixed term but instead refers to the length of the fixed term in weeks, months or years, the last day of the fixed term is always midnight of the day before the anniversary of the commencement date. This also follows in any periodic tenancy that may arise (including a statutory periodic tenancy, see section 5 Housing Act 1988).

Because the commencement date in this case was 24 December 2009 for a term of “12 months”, the last day of the fixed term was 23 December 2010. It then follows that because the notice in this case requires possession after 23 December 2010, it requires possession on the last day of the fixed term (and not before expiry of the fixed term) and so a valid section 21 notice.

Can a section 21 notice expire “on” the last day of the fixed term?

Section 21(1) Housing Act 1988 provides that the court must make an order for possession “on” the coming to an end of an AST which was a fixed term, it must therefore follow that the notice may also expire “on” the coming to an end of the tenancy. Otherwise the position would be absurd because if the notice could not expire “on” the last day, it would never be possible for the court to order possession “on” the coming to an end of the tenancy. There are no requirements of expiring a notice under section 21(1) on any particular day (compare s.s.(4)(a)).

Application to restore

We had assisted with preparing the papers for the application to restore and because it was fairly lengthy and in our view explained both possibilities including caselaw, we were confident with having the application to restore without a hearing.

On the 5th May (yes, 5th of May despite the application being made 17 March) the court simply wrote back with the following letter:

Further to your application received on 17 March 2011, the District Judge has made the following comments;
See struck out order of 23/2/2011

Yours faithfully

So all that hard work and preparation and that was their reply!

Application to set aside

We could only treat that letter as an order refusing to restore the possession proceedings, so the landlord promptly made an application to set aside the refusal to restore. Of course, this time we asked for a hearing! The application was essentially based upon the earlier application to restore.

The hearing

The hearing was finally held on 24 June 2011 and it would seem the District Judge clearly realised that he had made an error. (It seems it was the same Judge as who had refused the original claim).

No answer could be found as to why the original possession claim was struck out so the court set aside the refusal to restore and proceeded to order possession within 14 days. It was also ordered that the tenants pay the application fee (£150.00) and perhaps rather unfairly, the tenant was also ordered to pay the £80.00 application for the hearing! Rather strangely, the District Judge refused to order the £40.00 fee for the first application to restore on the grounds that that was refused (which is strange because the hearing was to set aside that decision which was allowed thus proving the decision was wrong). Anyway, the landlord also got travel costs of £96.00 payable by the tenant because the landlord had to travel 240 miles for the hearing.

Conclusion

In this case, the tenancy agreement, notice and court papers were all perfect and yet possession took 4 months. This story does remind us that even the simplest of cases can take considerable time.[/amember_protect]

The court may:-

Order possession [CPR 55.16(1)(a)]

If the court is not satisfied that the claim form was served or, the court is not satisfied that that the landlord is entitled to recover possession under section 21 of the Housing Act 1988, then

The court may:

Direct that a date be fixed for a hearing; and give any appropriate case management directions; or [CPR 55.16(1)(b)]

Strike out the claim if the claim form discloses no reasonable grounds for bringing the claim. [CPR 55.16(1)(c)].

Where a claim is struck out in this manner, the court must serve its reasons for striking out the claim with the order and the landlord may apply to restore the claim within 28 days after the date the order was served on him. [CPR 55.16(4)].

Examples of cases where a claim is struck out without the court ordering a hearing can be if a notice is clearly invalid and contains the wrong date.

Sometimes [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest'](quite rarely it must be said) the court will strike out a claim where the section 21(4)(a) notice used does not contain an actual calendar date but instead uses a formula as approved in Lower Street Properties Ltd v Jones [1996] 2 EGLR 67. Where landlords have followed our guidance on completing the accelerated possession court form, this point is referred to in the form, to avoid any problems.

In order the restore a claim, an application to the court must be made on form N244. It should be accompanied by a statement of case.

Below are links to (a) a sample partially completed application notice N244 and (b) a sample statement of case which deals with the situation where a claim has been struck due to no calendar date.

Please note all text in [square brackets] will need replacing as appropriate so both documents should be read carefully to ensure all have been completed.

Sample N244
Sample statement of case
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The significant changes mainly affecting landlords are as follows:

• Accelerated Possession Claims: £175.00 (from £150.00)
  
• Standard Procedure Possession Claim (e.g. rent arrears): £175.00 (from £150.00)
  
• On-Line Possession Claim (rent arrears): £100.00 (same as before)
  
• Application fee (set aside, restore etc.): £80.00 (from £75.00)
  
• Warrant of Execution (Bailiff fee): £110.00 (from £95.00)

In addition, from 1 April 2011 (so before the fees increase) the Tribunal Service is to merge with HM Court Service to produce HM Courts and Tribunals Service, so any cheques or postal orders paid on or after 1 April should be made to HM Courts and Tribunals Service or HMCTS.

We’ve been a little quiet during the first week of 2011 because we have lots of cases that were started at the back end of last year and are all coming together right now. Hopefully things will calm down soon!

Most of these case aren’t particularly interesting but this one I thought worthy of a quick report.

Philpott v Isaac Torquay & Newton Abbot County Court 0TQ01606 7 January 2011

Background

On 16 February 2010 the claimant landlord (Mr Philpott) granted an assured shorthold tenancy to the defendant (Mr Isaac) for a flat in Torquay. The tenancy ended on the 15 May 2010. Subsequently the tenancy became a statutory periodic tenancy (see section 5 Housing Act 1988).

The core terms of the tenancy are that it was for a fixed term of 3 months and the rent was payable in advance on the 16th day of every calendar month.

On 30 March 2010 (after one month into the term), the landlord served on the tenant a notice by virtue of section 21 Housing Act 1988. The notice required possession after 15 June 2010.

During and after expiry of the notice, negotiations were held between landlord and tenant to try and get the tenant to pay the rent etc. The local authority were kept informed of progress. Ultimatley, it was decided by the landlord that there was no other option but to seek possession and the landlord informed the local authority of his intentions.

On 8 November 2010 (prior to possession proceedings being commenced), Torbay Council wrote to the landlord and stated:

“On looking at the assured shorthold tenancy that was issued to Mr Isaac on 16 February 2010, I can see that you have issued a 3 month tenancy. I must inform you that this is incorrect and that legally, any assured shorthold tenancy agreement must be for a minimum of 6 months.

I have therefore advised Mr Isaac, that the notice seeking possession, that was issued to him is incorrect as even though the tenancy states that it is a 3 month tenancy, it is in fact a 6 month assured shorthold tenancy and you should be aware that a section 21 notice cannot be issued in respect of such a tenancy if possession is required before the initial 6 month term of the tenancy.”

No defence was filed and the local authority told the landlord that they “work closely with the court”. It seems a coincidence that despite no defence been filed that the court in this case ordered a hearing? I would comment that if the local authority have discussed this case privately with the court (as seems to be the case) this is totally unacceptable. There is no place in this modern day for private discussions behind closed doors between councils and courts!

It seemed as though the local authority had confused the provisions of the Housing Act 1988 and in particular it seems the local authority were not familiar with the changes that were made to the Housing Act 1988 by the Housing Act 1996 which took effect on 28 February 1997 (which is why the claim form for possession distinguishes between tenancies before and after this date).

The Housing Act 1996 inserted a new section “19A” into the Housing Act 1988 which applies to all new tenancies created on or after 28 February 1997. This new section 19A removed the requirement of any minimum fixed term of 6 months (or any fixed term for that matter) which was previously contained in section 20 Housing Act 1988 (which still exists for pre 1997 tenancies).

In addition, the Housing Act 1996 made changes to section 21, prohibiting the court from making an order for possession before six months from the first tenancy. However, this has no bearing on when a notice may be served or when it expires.

Helpfully, we had already done a case in 2006 which was almost identical [Ratcliffe v Parks 2006 unreported], on appeal in the High Court (therefore a court of record decision).

Background to Ratcliffe v Parks:

At the first hearing, the Deputy District Judge refused to order possession on two grounds namely, the section 21 notice given had been set to expire, as the Deputy District Judge put it, before 6 months of the tenancy had expired and that the notice did not expire on a rent day that is more than two [months] after the day on which it was served.

In respect of the first ground namely, that the notice was set to expire too soon, on appeal in the High Court, His Honour Judge Langan QC explained:

Here in my judgment the Deputy District Judge fell into what, regrettably, might be described as an elementary error. He confused the provisions of section 21(1) which deals with the amount of notice to which the tenant is entitled with the provisions of section 21(5) which bars the court from making an order to take effect earlier than 6 months after the beginning of the original tenancy. Section 21(5) has no bearing whatever on the way in which a notice under section 21(1) must be given. These provisions deal with entirely separate matters. Provided that notice is given in accordance with section 21(1)(b) the court is bound to make an order for possession if all other necessary conditions are satisfied. Section 21(5) merely details the court from making an order to take possession before a specified date.

Judgment

This was all put to the court and the court ordered Mr Isaac to give up possession of the property.

It is our intention to now make a formal complaint against the local authority against the advice they gave and we shall be seeking that the local authority pay compensation to the amount of at least the £150.00 court fee that would not have been needed had they given the tenant accurate advice and found alternative accommodation for him rather than attempting to defend the proceedings.

In Mundy v Hook (CC (Bromley)) County Court (Bromley) [1997] C.L.Y. 3246, the landlord had served a section 21 notice and the notice (which was perfectly valid) was accompanied by a letter referring to the enclosed notice but also stating that it was very likely that the landlord would not wish for possession at the end of the period. The landlord stated that this notice protected his position.

It was Held, [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']that as a matter of construction the s.21(1)(b) notice and accompanying letter were to be read together and were equivocal. The notice was not good in law. A tenant must know as a matter of certainty whether he is required to quit or not, particularly since under the 1988 Act an accelerated possession procedure can be utilised by the landlord. Severe prejudice could be caused to a tenant if such possession followed an equivocal statutory notice,

We are currently (December 2010) working on a case where possession was refused because although the notice was perfectly valid (it was one of our notices) the accompanying letter asked the tenant to vacate on a specified date and this date was different to the date on the notice and wrong. This case is hopefully going to appeal but it outlines the problems covering letters can cause.

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A problem that this can cause is that the tenant attends the hearing and states that they paid the landlord x amount in cash three days ago which of course is more often than not a lie.

Although this article doesn’t get rid of that argument altogether, it is helpful for a landlord to remind the court of section 9, Civil Evidence Act 1995 which provides that the records of a business (which includes a rent statement) may be given as evidence “without further proof”.

A document shall be taken to form part of the records of a business if there is produced to the court a certificate to that effect signed by an officer of the business [s.9(2)].

Below is a suggested certificate for the benefit of members which may also be downloaded in word format. The certificate should be signed and attached to the court bundle at the point of commencing proceedings. If proceedings have already been commenced, then the certificate should be taken in on the day of the hearing.

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Certificate that rent statement forms part of business records

Section 9, Civil Evidence Act 1995

I, the claimant hereby certify that the rent statement provided with the section 8 notice served on the tenant and the rent statement(s) provided to the court form part of the records of my business.

Signed …………………………………………………………………………….

Dated ………………………………………………………………………………

Civil Evidence Act 1995
9.— Proof of records of business or public authority.

(1) A document which is shown to form part of the records of a business or public authority may be received in evidence in civil proceedings without further proof.

(2) A document shall be taken to form part of the records of a business or public authority if there is produced to the court a certificate to that effect signed by an officer of the business or authority to which the records belong.

For this purpose—

(a) a document purporting to be a certificate signed by an officer of a business or public authority shall be deemed to have been duly given by such an officer and signed by him; and

(b) a certificate shall be treated as signed by a person if it purports to bear a facsimile of his signature.

(3) The absence of an entry in the records of a business or public authority may be proved in civil proceedings by affidavit of an officer of the business or authority to which the records belong.

(4) In this section—
“records” means records in whatever form;
“business” includes any activity regularly carried on over a period of time, whether for profit or not, by any body (whether corporate or not) or by an individual;
“officer” includes any person occupying a responsible position in relation to the relevant activities of the business or public authority or in relation to its records; and
“public authority” includes any public or statutory undertaking, any government department and any person holding office under Her Majesty.

(5) The court may, having regard to the circumstances of the case, direct that all or any of the above provisions of this section do not apply in relation to a particular document or record, or description of documents or records.

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The corresponding date rule was explained by the House of Lords in [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest'] Dodds v Walker (1981) 42 P. & C.R. 131. Although this case relates to a notice served under section 29(3) Landlord and Tenant Act 1954 by the tenant of business premises requesting a new lease, the principles of the corresponding date rule equally apply to all notices served including possession notices.

In this case, the landlord served on the tenant a notice terminating the tenancy dated 29 September 1978 and served on 30 September 1978. The tenant had under section 29(3) “… not less than two nor more than four months after the giving of the landlord’s notice ….” to apply for a new lease.

The tenant applied to the court on 31 January 1979 for a new lease and the landlord defended saying it was too late. The landlords case was that four months from 30 September was 30 January and so the tenant was one day too late. The tenants case was that because the notice was served on the last day of September, four months was until the last day of January.

The tenants claim was dismissed through all courts (although only by majority in the Court of Appeal) and finally the tenant unsuccessfully appealed to the House of Lords.

Lord Diplock explains the corresponding date rule:

… My Lords, reference to a “month” in a statute is to be understood as a calendar month. The Interpretation Act [1889, s. 3 ] says so. It is also clear under a rule that has been consistently applied by the courts since Lester v. Garland (1808) 15 Ves. 248 that in calculating the period that has elapsed after the occurrence of the specified event such as the giving of a notice the day on which the event occurs is excluded from the reckoning. It is equally well established, and is not disputed by counsel for the tenant, that when the relevant period is a month or specified number of months after the giving of a notice, the general rule is that the period ends upon the corresponding date in the appropriate subsequent month, i.e. the day of that month that bears the same number as the day of the earlier month on which the notice was given.

The corresponding date rule is simple. It is easy of application. Except in a small minority of cases, of which the instant case is not an example, all that the calculator has to do is to mark in his diary the corresponding date in the appropriate subsequent month. Because the number of days in five months of the year is less than in the seven others the inevitable consequence of the corresponding date rule is that one month’s notice given in a 30-day month is one day shorter that one month’s notice given in a 31-day month and is three days shorter if it is given in February. Corresponding variations in the length of notice reckoned in days occur where the required notice is a plurality of months.

This simple general rule which Cockburn C.J. in Freeman v. Read (1863) 4 B. & S. 174 , 184 described as being “… in accordance with common usage, …, and with the sense of mankind,” works perfectly well without need for any modification so long as there is in the month in which the notice expires a day which bears the same number as the day of the month on which the notice was given. Such was the instant case and such will be every other case except for notices given on the thirty-first of a 31-day month and expiring in a 30-day month or in February and notices expiring in February and given on the thirtieth or twenty-ninth (except in leap year) of any other month of the year. In these exceptional cases, the modification of the corresponding date rule that is called for is also well established: the period given by the notice ends upon the last day of the month in which the notice expires…

The tenants appeal was dismissed as the request should have been made on or before 30 January 1979 and no later.

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