Here is a question to the blog clinic fast track from Katy (not her real name), who is a tenant.
Hello. Our landlord of 3 years served us an eviction notice of 6 months three months ago.
We have found a house to move into and have a projected move-in date in two weeks time. Do we have to give the landlord notice on top of their notice??
Answer
I assume that the notice the landlord sent you was a section 21 notice and that your tenancy is an assured shorthold tenancy.
The short answer is yes. You do need to let your landlord know.
He will need to arrange to do a checkout meeting and deal with your deposit. You should not just leave without telling him.
Also, your landlord’s notice (assuming it is a section 21 notice) does not actually end the tenancy. Its significance is that it is necessary before a possession order can be made in possession proceedings. In the meantime, your tenancy will continue, as does your right to pay rent.
So if you just move out, your landlord can still claim rent from you. Although if you move out at the end of the section 21 notice period, he would have problems enforcing this.
So the question is, what are his rights to claim rent if you move out before the end of the notice period?
You do not say whether your tenancy is still in its fixed term or whether it is a periodic tenancy, but this is important and affects your rights.
If your tenancy is a fixed-term tenancy
You will be liable for rent until the end of your fixed term.
If you move out at or before that date, you will not be liable for any rent afterwards. However, if you stay on, then you will acquire a periodic tenancy.
If your tenancy is a periodic tenancy
You can end this by giving a tenants ‘notice to quit’, which must end at the end of a period of your tenancy.
Most periodic tenancies are monthly. So if your fixed term ended on 5th November (for example), then your periodic tenancy will run from the 4th day in the month until the 5th.
So your tenant’s notice to quit would need to give the landlord notice ending on the next 4th day of the month after service of the notice to quit on your landlord.
The fact that your landlord served a six months notice makes me wonder though, whether your situation is different, as most section 21 notices will be for two months. You may want to check this.
And finally
Probably the best thing is to just discuss this with your landlord.
If he agrees to you leaving, accepts the keys and deals with your deposit, he cannot then turn around and demand more rent from you.
However, if you just move out without telling him, you may antagonise him making him more likely to stand on any rights he may have to claim future rent.
This is an interesting one for debate – as you yourself point out the landlord’s notice doesn’t legally end the tenancy, however you then go on to say “Although if you move out at the end of the section 21 notice period, he would have problems enforcing this.” – what would the problem be and who would resolve it? The implication here is that there is a grey area that someone would have discretion on – most people would aim to move out on or before the date on the Section 21 to avoid incurring court costs so exactly how many days or weeks early would be acceptable and who would decide? How could a tenant know in advance? Would they still be expected to give a month’s notice, ending on a rent day, AFTER the Section 21 date whilst waiting for the eviction hearing? What about after the hearing but before the bailiffs arrived (which could be weeks, months or even years later) – do they still have a legally valid tenancy, in which case does that then oblige them to give notice even though the landlord already holds a possession order?
What would be useful here is information on past court or deposit adjudicator decisions definitively awarding (or declining) the landlord rent in lieu of notice after having already issued a Section 21.
In the absence of such case histories and assuming the tenant doesn’t simply abscond unannounced, surely it would be more reasonable to argue that reciprocal official notice is NOT required. I can think of numerous arguments to justify such an interpretation.
It has been judicially confirmed that the service of a section 21 notice does not obviate the need for the tenant under a periodic tenancy to serve a notice to quit. A tenant has an “obligation to serve notice to quit if he wishes unilaterally to determine a periodic tenancy, an obligation which is not ousted by any statutory provision in the Housing Act 1988.” (Laine v Cadwallader: CA 26 May 2000)
The judge went on to say: “Of course, a tenant does not have to give notice if his landlord agrees to accept with immediate effect the tenant’s offer to surrender his statutory periodic tenancy.” The key words there are “with immediate effect” so that there has in practice to be an actual surrender by operation of law, an agreement to surrender being void if it does not comply with section 2 of the Law of Property (Miscellaneous Provisions) Act 1989.
A tenant simply walking away without telling the landlord does not end the tenancy. That may seem unreasonable, especially given the wording of a section 21 notice which it is not unreasonable for a tenant to interpret as meaning he has an obligation to leave, but if it were otherwise the basic conditions for a tenancy (one of which is that at any given moment its maximum duration must be ascertainable) would be undermined as would the thrust of the HA 1988 that a landlord can only end an assured tenancy by a court order
“It has been judicially confirmed that the service of a section 21 notice does not obviate the need for the tenant under a periodic tenancy to serve a notice to quit.” This would only be true if the original case that was the subject of the cited appeal case (Laine v Cadwallader) involved the issue of a Section 21. I can’t see any mention of that in the appeal court case notes so without that confirmation from the original case it’s not possible to know why the tenant chose to end their tenancy.
What IS mentioned is something about the landlord being able to accept an offer to surrender, but surely the issue of a Section 21 is inviting the tenant to surrender their tenancy as soon as they are willing and able to, otherwise they will be taken to court! What a nonsense it would be if the landlord gave two months’ notice and on the final day the tenant said “OK then, here are the keys, can we have our deposit back for the next place, please?” to which the landlord replied “Ah but you have to give me a months’ notice ending on a rent day” and because of the timing of the notice the tenant realises “but that means us paying for another six weeks rent!” to which the landlord greedily grins saying “It’s not my doing – it’s the law (snigger, snigger)” to which the tenant then replies “Well we can’t afford to take the new place we’d arranged then – we’ll have to stay here for the full six weeks that we are having to pay for and hope we find somewhere else by then” to which the landlord, now in a panic, says “NO, NO you can’t STAY- I’ve got a buyer wanting to move in in three weeks!”
You’ve also got the provision in Section 21C of the Housing Act 1988 for a partial refund of rent where the tenancy is ended mid-period, e.g. due to the S21 not coinciding with the rent day. What would be the point of this clause if the tenant had to give their own tenant’s Notice-to-Quit which, by definition, has to run to the next rent day? Normally “rent paid in advance cant be apportioned” therefore this clause is very specifically designed to make an exception to this rule when a S21 notice has been issued and a tenant leaves at a random time as a result of being asked to leave. I can see that when the notice was lengthened to six months during CoViD there could have been timing issues if the tenant moved
out barely days or weeks after getting the Section 21, but with only two months notice it’s normally the case that the landlord hasn’t planned very far ahead and hopes the tenant will leave quickly. As has just been illustrated, requiring notice could really complicate things.
I’m also a bit concerned that if a tenant was required to give their own NtQ they would be being forced to put themselves in a really disadvantageous legal position if the new place they’d arranged fell through. Not only would they lose the cover of the “Protection from Eviction Act 1977”, leaving them open (according to Shelter) to the landlord potentially taking peaceful unopposed possession without a court order whilst they are out of the house, e.g. when at work or having popped to the shops, but also they would be unwelcome over-stayers that could be charged double rent as ‘mesne profits’ under the “Distress for Rent Act 1737”. Would it really have been the legislators’ intent that a tenant under notice would be forced to give up their right to a court hearing in order for them to attempt to comply with such a notice when the notice itself at this stage only has the power of being a simple request until enforced by the court?
Finally, where is there any clarity in either the Housing Act 1988 itself or in any the Government guidance notes as to this alleged and rather serious alleged requirement for tenants to have to give reciprocal notice when given a S21? If it was that crucial then surely Form 6A would mention it if it were a legal requirement? Unless there is some evidence from past court or deposit adjudicator decisions, isn’t it more plausible to assume that tenants are NOT required to give reciprocal notice?