This is a question to the blog clinic from Olu, who is a landlord in England.
My tenant refused to leave at the expiry of the tenancy though I reminded her the tenancy only had 2 months left to run and I didn’t intend to renew as the property would be needed
She did not at the time indicate or confirm her intention not to vacate but subsequently refused to move, and in court (with the CAB on her side), the notice I gave reminding her was deemed not enough/appropriate
My question then is … Is a landlord required to issue a S21 notice to a tenant at the end of a 12-month tenancy, and if so, then what is the point of the AST if the tenant can simply refuse to move after the 12-month period?
Answer (England only)
When a landlord rents out a property to a tenant, that tenant acquires certain legal rights. One of which is that the tenant has the right to remain in the property until evicted through the courts. This right is found in the Protection from Eviction Act 1977.
Note that even if you don’t intend to create a tenancy, in virtually all cases, one will be created automatically if you allow someone to live in your property and accept rent from them.
So once your tenant is in occupation, you can only recover vacant possession by:
- The tenant moving out voluntarily, or
- A court bailiff (or High Court Enforcement Officer) acting under the authority of a court order for possession.
If, as a property owner, you do not like this, the answer is simple – do not rent out your property! For example, if you are looking for an investment, invest in something else.
If you are questioning the point of issuing a tenancy agreement, then
A tenancy will be created whether you want one or not, if someone starts living in a property and paying rent. The point of the tenancy agreement is that you can include various terms and rules which will protect your position as landlord.
It will not entitle you to chuck your tenants out the day after the fixed term ends, but it can, for example,
- Entitle you to charge rent in advance
- Prohibit pets, and
- Protect your position if tenants introduce occupiers without a right to rent (where the fines are now massive)
Landlords should never allow tenants into occupation without signing a properly drafted tenancy agreement first.
At the end of a fixed term
Where a property has been let for a ‘fixed term’ the rights of the landlord and the tenant at the end of that fixed term are different.
The tenants’ rights
If the tenants vacate before midnight on the last day of the tenancy, then the tenancy will end. So, for example, their obligation to pay rent will also end. The landlord cannot extend the tenant’s liability beyond the fixed term if the tenant leaves.
However, if the tenants remain in the property, then the fixed term tenancy will still end, but a new ‘periodic tenancy’ will be created automatically immediately after the end of the fixed term tenancy. This is under section 5 of the Housing Act 1988. Assuming the tenancy is an assured shorthold tenancy, which most are.
The landlord cannot do anything to prevent this from happening.
The landlord’s rights
The landlord cannot prevent the tenant from remaining in the property and thereby acquiring a periodic tenancy.
If the landlord wants the tenant to vacate (and the tenant refuses to vacate voluntarily), he can only acquire vacant possession if he evicts the tenant using the proper procedure. This will involve
- Serving the proper form of notice (normally this will be a ‘no fault’ section 21 notice), then
- After the expiry of the notice, bringing proceedings for possession through the courts, and then
- If the tenant still fails to vacate, instructing the county court bailiffs or High Court Enforcement Officers to physically evict the tenants.
This is described by lawyers as ‘due process’.
The no-fault procedure is set out in section 21 of the Housing Act 1988. Landlords must comply with various ‘pre-requisites’ and serve the correct form of notice, which is now prescribed.
The Section 21 notice can be served during the fixed term, but proceedings for possession cannot start until the fixed term has ended.
Note, by the way, that the no-fault procedure will no longer be available to landlords if the Renters Reform Bill is made law and has come into force. After that, landlords will need to use one of the other grounds for possession as set out in the legislation.
What is the point of a fixed term?
- From the tenants’ point of view, it gives them security of tenure as, (provided they pay their rent) the landlord cannot evict them during that time
- From the landlord’s point of view, the tenants are legally liable for the rent on a month-by-month basis until the fixed term ends – even if they move out.
If you want your tenants to leave
Assuming your tenant has an assured shorthold tenancy (which most do), you will, in most cases, be looking to use the no-fault section 21 procedure. In this case, you need to ensure that you are compliant with the Section 21 rules and serve the correct notice at the proper time.
It sounds as if you failed to do this. In which case, the Judge would have had no alternative but to dismiss your claim.
If a landlord is not familiar with the eviction procedure, then it is best (if the tenants fail to vacate voluntarily) to use solicitors. For example, Landlord Action specialise in this work and are well known for it.
However, if you want to save money and act in person, we do have detailed guidance on Landlord Law which you can read about here.
And finally
As I said above, if you are unhappy with tenants having these rights, then the only alternative is not to rent out the property!
Be aware also that the no-fault procedure will no longer be available once the Renters Reform Bill has been made law and come into force.
In its current form, the Renters Reform Bill also ends fixed term tenancies. All new tenancies will be effectively periodic from the start.
So a lot of the current confusion about fixed terms and what happens when they end would simply vanish.
This may change, going forward, if only because having no fixed term doesn’t really work for student tenancies.
Yes, I think there are proposals about student lets.
I suspect if the Renters Reform Bill ever becomes law, a lot of people may find it hard to accept that tenancies are periodic from the start. We are so used to fixed terms.
Apart from the case with students at the beginning of an academic year, I’ve never understood why landlords, supposedly responding to the demands of a marketplace, could possibly think that such a market would be seeking tenancies in conveniently exact units of six or twelve months. It should be obvious to anyone with a grain of common sense that tenants would be seeking a home, not a ‘term’. Even more ludicrous is the frequent tying of several unconnected sharing strangers to a joint contract and expecting their various life-paths to magically diverge all at the same time just as a fixed term expires.
I think you have to largely blame decades of agents, eagerly seeking renewal commissions (especially before they were capped by The Tenant Fees Act in 2019 ), and even now using forced “renewals” as an excuse to hike up rents for a percentage boost to overall management fees, for the appalling amount of misinformation that has led to many an ill-informed landlord genuinely believing that a tenancy MUST be renewed at the expiry of each fixed term in order for the tenant to be able to legally remain in residence and which has created a laughably common belief that what is often the bare MINIMUM term of a tenancy should somehow be its MAXIMUM.
How much clearer would things have been for everybody from the outset back in the day if instead of referring to a “fixed term ” contract the vernacular had come to routinely use expressions like “guaranteed minimum term”, “fixed initial term”, “starter term” etc?