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What happens if the tenant gives notice but then doesn’t leave?

housesHere is a blog clinic question from Sam (not his real name) who is a landlord

I am a landlord. My tenant has served me notice to leave. With 2 weeks to go for the notice the tenant has stated that they’d now like to cancel the leaving notice. I have said no.

The reasons are because, I have acknowledged the end of the tenancy in writing, I have advertised the property in question and I have found a new tenant to move in. The tenant has agreed to leave on the notice date.

My question is: If the tenant does not leave on the date confirmed. What should I do? Would I need to give notice, or could I start legal eviction proceedings to evict the tenant myself?

If the tenant has given you notice to quit then his tenancy has ended. If he remains in occupation beyond his notice date, then you will need to get a court order, but I can’t see how he can have any defence.

If he paid rent though you would need to be careful about accepting it (accept it as mesne profits only) otherwise you may create a new tenancy.

As he would no longer have a tenancy I suppose the proceedings used for trespassers would be the one to use.

Then there is this interesting possibility that you can charge double rent!  See more in this blog post here.

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8 Responses to What happens if the tenant gives notice but then doesn’t leave?

  1. There is a useful old Act which says that if a Tenant does not leave at the end of his notice perdiod a Landlord is then entitled to double rent. This is a compensatory figure for the potential loss that Landlords will suffer in cases such as yours. See section 18 of the Distress for Rent Act 1737.
    I would threaten the tenant with a claim to the court for possession in which you will also claim costs and the double rent figure if they don’t leave at the end of the notice period

  2. I really want to believe that a Possession Order is required in these circs – otherwise I think there’s scope for disasterous misunderstandings and disputes about whether NTQ has been given. However, it’s an issue I struggle with.
    H Act 88 s.5 doesn’t help because it’s all about landlord endings & specifically excludes tenant actions.
    PEA s.3 bizarrly (& inexplicably to me) covers non-assured, non excluded tenancies/licenses but not ASTs.
    I therefore have difficulty identifying why a landlord can’t take peaceful possession once the tenant’s NTQ has expired. Any clarification and ideas very welcome.

  3. Hello

    I’ve done quite a number of these for members on assured shorthold tenancies too. Firstly it’s correct that if a tenant fails to vacate after they gave notice, they will owe double rent. I’ve obtained this on several occasions.

    The procedure for possession is the standard procedure (same as section 8 rent arrears for example). You can’t use the trespasser procedure because that procedure is not available to “former tenants”.

    There is no defence open to the tenant (or former tenant) but section 89 Housing Act 1980 applies (postpone up to 6 weeks)

    However, “…the right to double rent conferred by section 18 of the Act of 1737 only arises where (a) the tenant holding over after his own notice to quit is in fact a trespasser (thus, the notice must be valid), and (b) the landlord treats him as such. Any other case departs from what I regard as the plain purpose of the section…” [Laws L.J. Oliver Ashworth (Holdings) Ltd. v. Ballard (Kent) Ltd. [1999] 3 W.L.R. 57].

    So as Tessa rightly says, you must only ask for mesne profits and you are advised to seek possession quickly so you are “treating them as trespassers”.

    Hope this helps.

    Adrian

  4. @Dave My understanding is (under the Protection from Eviction Act 77) that a possession order is required for ANY residential occupation unless it falls within the excluded occupations set out in s3A.

    @Adrian Thanks so much for your comment and for confirming that you have succeeded with the double rent claim. That is very interesting to know.

  5. Is it the same/different if s21 notice had been served (correctly), tenant acknowledged was leaving, and then changes mind? And, what if tenants leave but an unauthorised occupier remains?

  6. Hi Jennifer. The double rent scenario will only apply if it is the *tenant* who serves a notice to quit.

    If it is the landlord who serves the notice then if the tenant fails to leave the landlord has to go to court in the normal way.

    Note that when bringing possession proceedings the bailiff has the power to evict whoever he finds there, so can remove unauthorised occupiers as well as the tenants.

  7. Tessa,

    CPR 55.1(b) says:-

    “(b) ‘a possession claim against trespassers’ means a claim for the recovery of land which the claimant alleges is occupied only by a person or persons who entered or remained on the land without the consent of a person entitled to possession of that land but does not include a claim against a tenant or sub-tenant whether his tenancy has been terminated or not;

    I think this means that although a claimant is not expressly forbidden from using a form N121 (the standard-form Particulars of Claim for trespasser cases, the court ought not really to give the quick hearing date as they do for squatter-trespassers.

    If one were to use the N121 form I suppose it is possible that the court office might in error give it a hearing date sooner than the 28 day minimum stipulated in CPR 55.(3) but if the judge is on his toes he ought really to adjourn it (assuming that it does get given a quick date).

    I can understand that the landlord might not want to disappoint the new tenant he’s got lined up but that new tenant may well find other accommodation anyway if it is going to take at least a couple of months to get the tenant out. It might be better negotiating a new tenancy with the tenant/ex-tenant who is in situ on the basis that he will reimburse the landlord for the costs thrown away in advertising for the new tenant, etc.

    That double rent might sound attractive but not every judge will be keen to award it and many will, I think, be very keen not to.

  8. Er, silly me. One couldn’t really get away with using the N121 form (not without amending it anyway – and CPR 4(2) says that a form may be varied by a party if the variation is required by the circumstances of a particular case) as on that form the standard wording requires the claimant to state “The defendant(s) (has)(have) never been a tenant or sub-tenant of the land”.




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About the post author:

Tessa Shepperson

Tessa is a lawyer specialising in residential landlord and tenant law. She runs the Landlord Law website (now in its 12th year) and is a director of Easy Law Training Ltd and Your Law Store. Tessa also sits on the Property Redress Scheme Council. When not working she enjoys reading, cooking and messing around on the computer. You can also find her on Google



The Landlord Law Blog from Tessa Shepperson

Tessa is an English lawyer specialising in residential landlord and tenant law.


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