Here is a question to the blog clinic from Beatrix, who is a tenant
If my landlord serves me a Section 21 notice it has to say in the notice “Section 21” and it has to be two clear months. My question is: there is a clause in my tenancy agreement that if I want to terminate my tenancy, I have to give two months notice.
Does it override the statutory one clear month notice which I have to give?
Does my notice to the landlord have to include the name of a section / act to be valid, like my landlord’s notice would have to say “Section 21”? If yes, which section is it and which housing act?
The rent is due on the 9th day of the month. Will I be out of time if I deliver the notice by hand by 4pm on 9th July? Is it valid if I sign it, scan it in and email it or it has to be done by post or by leaving it at the address for service? There is no provision in the contract to serve notices by email.
This question may be interesting because it is never discussed what happens if the tenant wants to serve a notice on the landlord for disrepair, or just wanting to move. I’m quite sure that it is an AST: self-contained one bed flat in a purpose built block.
A section 21 notice is a special notice a landlord serves on an AST tenant which (assuming he gets it right) will mean that the Judge will have to grant him an order for possession at court. This is not a notice therefore which a tenant would use.
If a tenant wants to end the tenancy they serve a what is called a ‘Notice to Quit’. This is a form of notice which ends the tenancy completely after the end of the notice period. It is specifically disallowed in the Housing Act 1988 for landlords but is still available for tenants. It is not set out in any act of Parliament as it is a common law right.
This will not necessarily be set out in your tenancy agreement but whether it is or not, it is a right you have, after the fixed term has ended.
The notice should be for a complete ‘period’ of your tenancy and strictly speaking should end on the last day of a period. So if your tenancy is a monthly one, the notice period you need to give your landlord will be between one and two months, depending on when in the month you serve it.
If the period is less than one month (eg if you have a weekly tenancy) then there is a minimum notice period of 28 days.
So far as service is concerned, a ‘belt and braces’ approach is often a good idea. Serve it by whatever method is specified in your tenancy agreement, but you can also send a copy by email and deliver it by hand too (with a witness if you do not trust your landlord).
You do not need to give your reason for wanting to go – so it does not matter if it is because of disrepair or just because your job has moved you to Aberdeen.
Note that if you just up and leave without giving the landlord the proper notice to quit then they are entitled to claim rent in lieu of notice, which they can deduct from your deposit.
None of this, by the way, applies if your fixed term has not ended yet. You can only end the fixed term if your tenancy agreement includes a ‘break clause’.
Hi Tessa,
Thank you very much for the reply.
I would like to find a case where the AST tenant gave notice to quit after the expiry of the fixed term but he / she stayed on after the notice expired and kept paying the rent which the landlord accepted without writing to the tenant first, saying that any money paid after the expiry of the notice would be accepted as mesne profits and thus, by operation of law, the old tenancy was surrendered and a new one granted.
I was wondering if there is a governing case about the above situation.
I like to read landlord and tenant blogs / forums and find your advice very useful.
Thank you,
Beatrix
When I get a moment I’ll see what I can find.
However I would NOT recommend staying on after service of a notice to quit as then you may be vulnerable to pay three times the rent as set out here http://www.landlordlawblog.co.uk/2009/12/01/ancient-law-may-help-landlords/
I think this would seem to extend to a discussion about tenancy deposit protection as well and wonder what your views are?
I think Beatrix’s queries have highlighted 3 scenarios
”If a tenant wants to end the tenancy they serve what is called a ‘Notice to Quit’. This is a form of notice which ends the tenancy completely after the end of the notice period ”
1: In this instance if the tenant moves out then the Deposit will be dealt with in accordance with the scheme rules
2: The Tenant stays on and continues to pay rent. But the tenancy has ended due to the Notice to Quit
a) New tenancy granted by default
b) New Tenancy granted by agreement
b1) New Tenancy Agreement drawn up and signed by both parties
b2) Landlord and Tenant assume that previous agreement is rolling over
I think that in these cases, as the tenancy has ended, the deposit should be unprotected and reprotected ( or as a minimum, depending on the scheme used, the Prescribed Information re-served )for the new tenancy but I think Landlords caught up in (a) and (b2) scenarios would more than likely also miss the Deposit protection implications and be potentially liable for up to 3 times the deposit as a ‘fine’ and it would also seem that they would not be able to serve a Section 21 (Without returning the deposit etc as indicated in the Localism Act).
1 the notice provisions in a tenancy agreement have no effect in any period after a fixed term ends and there is a following periodic tenancy arising by virtue of the Housing Act 1988 [s5(e) see proviso]
2, the minimum notice period that can be given for tenancy whose duration is a quarter or less is the longer of the period and four weeks [as you say]see s5 Protectionfrom Eviction Act 1977. If it is a yearly tenancy it must be at least 6 months. If the tenancy period is between 6 months and a year i have no idea as to the correct period of notice!
4 in the case of an assured tenancy (whether or not shorthold)there is no “penalty” for staying on after a Landlord’s NTQ or a section 21 notice
5 provided you all leave by the end of fixed term tenancy (where there is no subsequent contractual periodic tenancy arising eg for for a term of 6 months and thereafter monthly”)no notice is required and liability for rent ends with the rent for the last day of the term.
I have always assumed that if you all leave between the service and expiry of a section 21 notice the landlord is estopped from demanding rent for any period after the expiry of the section 21 notice as he has required departure a sort of surrender.
where a Tenant stays on after expiry of tenant’s NTQ and landlord does not write a mesne profits letter and the tenant continues to pay money, the caselaw all seems to suggest no new tenancy will be implied in the absence of more.