This post is part of my urban myths series. You can see the rest of the series >> here.
I often get asked by landlords about how long a section 21 notice lasts. Questions include:
- Can I let the tenant stay on after the end of the notice period?
- If I allow the tenant to stay on will I have to serve a new notice?
- How long does the section 21 notice last for?
The answer to the last question is that the section 21 notice lasts as long as the tenancy does. So it can be, and in some cases has been, used several years after the notice period expires. This is not really good practice and Judge’s won’t like it, but they will not be able to refuse you a possession order on that basis.
The notice will only end, when the tenancy ends, which is when you give the tenant a new tenancy agreement (giving a new tenancy agreement will, in most cases, automatically cancel the preceding tenancy).
If you have a troublesome tenant, this is one reason for allowing the tenancy to continue, on a periodic basis after the fixed term has ended. You will be able to hold the threat of issuing proceedings under the section 21 ground, over them, to make them behave. However, if you give them a new tenancy agreement you will not be able to evict until the new fixed term has expired. And you will have to serve a new notice.
So ‘allowing’ the tenants to stay on after the notice period has ended, will not affect anything. They are entitled to stay on anyway, if they wish. The only way you can *force* them to go is by getting a possession order from the courts. It is a criminal offence (under the Protection from Eviction Act 1977) to evict a residential tenant other than through the courts.
The significance of the end of the notice period is that you can issue proceedings for possession under section 21, not that you’ve got to.
The estoppel argument
There are some circumstances though where the tenant may possibly have grounds to object:
- If they have done something extra on the basis that they will be allowed to stay, for example paid a lot of rent up front, also if a third party (such as a relative) has paid rent on the basis that they will be allowed to stay
- If you have said to them that they can stay on *and* they have done something in reliance on this which you were aware of. For example if they have re-decorated the property believing that they will be allowed to stay there for a long time.
In these circumstances it is possible that the tenant may be able to use a legal rule called ‘estoppel‘. This says basically that if someone (ie you) stands by and allows another person (ie your tenant) to ‘act to his detriment’, knowing that they are acting under a misapprehension, then you will be ‘estopped’ from relying on your strict legal rights.
However it is quite easy to avoid an estoppel situation. Just be very careful what you say to them about the notice, and always make it clear that you reserve the right to use it if needed.
If you do say that they can stay on (for example if a relative offers to pay the rent) make sure that you specify the period of time you will allow them to stay for, so it is not open ended.
Have you experienced any problems in using a section 21 notice a long time after it was served? Has anyone known of a situation where tenants have successfully challenged a section 21 notice on the grounds of estoppel?
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[...] from The Landlord Law Blog » FLW Article This post is part of my urban myths series. You can see the rest of the series >> here. I [...]
Firstly Tessa let me complement you on a brilliant web site. Your writings on the section 21 notice has caused some stirring amongst one or two letting agent friends I have and would be really interested in your clarification of our understanding which will also help settle a few arguments.
Can we be clear that should a landlord or letting agent issue a section 21 (fixed) immediately following the registration of the deposit with say the DPS and then let us say the tenant moves into a periodic tenancy and some 18 months down the line they become a problem for whatever reason or the landlord simply wants his property back are you really saying that the landlord or letting agent can safely rely on that original (fixed) section 21 that had been issued possibly many months before, and that as they are now in a periodic tenancy we would not need to give them 2months notice via a section 21 (Periodic) notice, although I accept that this might be best practice.
If this really is the case then I believe not a lot of landlords are aware of this fact as I am sure neither are many letting agents as this would certainly give more power to the landlord or agent in the event of a problem tenant. Your clarification would be appreciated.
Many Thanks
Peter
You can rely on the original section 21 notice. Provided the property was licensed (if this was needed) and the landlord had complied with the deposit regulations, and that no new tenancy agreement had been given to the tenant.
There was a case, I believe, where a judge refused to grant an order based on a notice served about two years ago, but this was overturned on appeal.
Wonderful , thanks for your reply Tessa.
Peter
ive been given a s21 can the landlord put the rent up until ive move places
Only if he is entitled to anyway – see here http://www.landlordlawblog.co.uk/2010/07/26/tips-for-tenants-is-that-rent-increase-valid/
So if the s.21 notice is still valid once the fixed term expires and you want to evict during the periodic tenancy, do you simply give the tenant 2 month’s written notice that you require possession? I realise that a court order will be required if they don’t vacate when the notice expires.
Avril, the section 21 notice cannot be used UNTIL the fixed term expires. You cannot use it during a fixed term.
You only have to give the one notice period, but if you serve the notice during the fixed term, the notice period may be longer (sometimes much longer) than two months, depending on when in the fixed term it is served.
I have a tenant who has been living in the property for over 2 years. She initially signed a 6 mths AST with a S21 notice given at the same time. She pays monthly and has been on a periodic (as no new AST has been signed). She has now told me, through her solicitor, that she is leaving and does not need to give any notice as a Section 21 notice was signed at the beginning of her AST?
Its bit of a moot point, but my view is that she is supposed to give you at least a months or (if she is paying weekly) 28 days, notice.
You could try deducting a payment in lieu of rent from the tenancy deposit and see where that gets you.
Wonderful! You may like to know that some landlords are nothing but landlords from hell regardless of colour or race. Some London landlords go too far.
What of landlords that issue section 21 notice every year just to scare tenants out of properties? Most tenants move due to ignorance.
When the tenant is out, some London landlords are known for entering properties. The council may not know that some landlords have ulterior motives for taking DSS tenants.
Sometimes, it is for fraudulent reasons. When they gain access to specific tenant documents, they do a lot of fraud with it.
“If you have a troublesome tenant, this is one reason for allowing the tenancy to continue, on a periodic basis after the fixed term has ended. You will be able to hold the threat of issuing proceedings under the section 21 ground, over them, to make them behave.”
While put like the above it sounds reasonable however the local letting agents I’ve come across use that method as routine for all tenants (often referred to as The Sword of Damocles). What they do is serve the Section 21 notice to all tenants shortly after the start of the tenancy (and the deposit is protected) and tell the tenant not to worry about the notice as it’s “just routine”. Once the tenancy becomes periodic the landlord is then able to use the threat of issuing proceedings or indeed issue proceedings any time he likes. In effect by getting the Section 21 notice period out of the way early on, and encouraging the tenant to ignore it, the agent has dispensed with the need to give the tenant notice if or when the landlord wants possession in the future. As we all know the Section 21 isn’t linked to a tenant’s behaviour so this method of using the Section 21 notice can also be used to get rid of perfectly good tenants if for example the landlord wants to sell the property, or move back in etc. Of course the tenant could move when the Section 21 notice asks but that’s not really a practical solution if routine serving of the notice is widespread, the tenant would end up moving often when it isn’t necessary. Is there anything a tenant can do to get their right to a proper two months notice back, e.g. would getting written permission they could stay render the section 21 notice void?
Not unless the law is changed. The Law Commission’s Renting Homes bill had a time limit for using section 21 notices but this bill was never made law.
I have had a tennant in my property for 3 years and the first year was the only one that was fixed, I gave them 2 months notice and on the 11th of February i served them the section 21 notice. They agreed to move out on the 2nd of May, however now they are saying they will not move out now. What can I do or what is my next step?
You will need to evict them! See here for some guidance: http://www.landlordlawblog.co.uk/2010/12/22/how-to-evict-your-tenant-on-a-shoestring-budget/