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Tenant moving out before the s21 expires

flatsHere is a question to the Blog Clinic from Sheila who is a landlord

Hi, I served my tenant with a Sect 21 notice which was due to expire in December 2012. However, on the 1st of November 2012, I discovered that they had moved out without letting me know.

Because they did not inform me and I was travelling for the next 2 weeks, I could not take any steps to rent out my property as soon as possible and now will be without rent for at least one month.

Is the tenant not required to inform me when they are leaving my property under a Section 21 notice? I thought they needed to give me at least a month’s notice as soon as they had found alternative accomodation.

The whole section 21 notice / date of tenant departure area is a bit of a tricky one.

Section 21 notices do not actually end the tenancy agreement (in the way the old Notice to Quit do for unregulated tenancies).  They just mean that if the landlord goes to court after the notice period has expired, the Judge has to make an order for possession.

Often they are served just as a precautionary measure by landlords and the tenants stay on for months or years afterwards.

However, even if the landlord does want the tenant to leave at the end of the notice period (and makes that clear to the tenant), frequently it is not possible for tenants to do this.  Either because they cannot find alternative accommodation or because they want to be re-housed by the Local Authority – who will tell them to stay where they are until an order for possession is made.

Note that tenants are quite within their rights to refuse to move out and will only have to do this when you have obtained a possession order AND the Court Bailiff attends to physically evict them.

Strictly speaking tenants ought to give notice regarding the date they intend to vacate, but if the landlord actually wants them to leave, I always think, bearing in mind that the tenants are entitled to  make a landlord pay to get a court order for eviction (which could take up to six months during which period tenants often stop paying rent), the landlord just ought to be grateful that they have gone.

You may be entitled to claim rent in lieu of notice, but it may be more trouble than it is worth to do this.

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7 Responses to Tenant moving out before the s21 expires

  1. As a section 21 notice does not have a format fixed in law there is no real reason why (if LL does not wan early departure) it can not include wording along the lines of ‘this notice does not remove your obligation to give valid notice’.

  2. The position is simple.

    The Landlord is serving notice that they want the property on a specific date. If the tenant lingers that is an age old problem.

    But if they decide to leave early, unless able to give just one month’s notice in the periodic state, that is up to them but at their cost unless and until the Landlord secures a replacement tenant weho has started to pay the rent.

    It has to be thus – otherwise any tenant could just leave at the drop of a hat.

  3. “because they want to be re-housed by the Local Authority – who will tell them to stay where they are until an order for possession is made.”

    Sorry Tessa, I think you are a bit out of date on this one.
    Local Authorities can now discharge their responsibility onto the PRS;

    There is no longer a reason for Local Authorities to routinely advise waiting for a possession order.

  4. @HB Welcome

    You are right but a little harsh on Tessa – and anyway it won’t happen in anything like the numbers needed. One of the problems with this scheme because of the obligations that still rest with the LA – all they are doing is sourcing the property from somewhere else, all other considerations and factors remain the same – so the advice will still be to sit tight until a suitable PRS property comes along that the LA can get hold of.

    The problem there is that Landlords have to commit to a 12 month tenancy.

    The majority don’t want LHA tenants anyway – how many do you think will want to be committed to one for 12 months?

    If anything this makes the position worse for LHA tenants and more difficult for LAs to rehouse them as they are fishing in a pool which already has high demand – and if Landlords can pick and choose………?!!

    Anyway LAs have always been able to fish in the PRS pool by entering into Guaranteed Rent Schemes etc with private Landlords.

    The issue here was whether a tenant under notice can leave early without penalty – which I repeat they cannot unless the Landlord agrees to release them

  5. Hi Industry Observer,

    I was responding specifically to the statement about LA’s routinely advising tenants to stay on past the notice period and waiting for a possession order as a route to social housing

    “they want to be re-housed by the Local Authority– who will tell them to stay..”

    Since the new Homelessness suitability order came into effect, it is no longer a (eventual)surefire route to secure social housing and I believe LA’s will inform tenants of this.

    I thought I’d pointed this out in a gentle way, but if Tessa feels I have been harsh on her, I apologise unreservedly.



About the post author:

Tessa Shepperson

Tessa is a lawyer and specialises in creating products and services which help landlords and letting agents learn and understand landlord & tenant law. For example, she runs the Landlord Law website (now in its 14th 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

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

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