The notice period has not yet expired
This one seems quite obvious – of course you are not going to issue proceedings before the end of the notice period! But you would be surprised! People do sometimes.
No ‘Mystic Meg’ scenario please …
Indeed, quite a few people have said to me, after I have done my usual explanatory talk about section 21 notices with their two month notice period, “Can I issue proceedings next week then?”.
I then have to explain that no, the whole point of a notice period is that it is, well, giving them notice. You don’t give someone two months to get out and then go to court the following week!
Only if the tenants don’t comply with the notice (ie move out before the end of the specified period) can you action it. And you can’t tell whether or not they are going to move out before the time has actually passed.
We are none of us ‘mystic Meg’ (“Your Honour, I apply for possession after the end of my notice period in six weeks time on the basis that my crystal ball tells me she won’t go …”)
Even if your tenants have told you that they are not leaving, you still have to wait the notice period out. Sorry.
Inadvertent early commencement of proceedings
However generally people start proceedings too early by accident. This is usually because the landlord did not realise the notice period had not expired yet. Why? Most commonly because the expiry date was incorrect.
If you have a notice with a saving clause you do not have to worry about getting the date wrong as you will always be saved by the clause (assuming it is effective). However if you issue proceedings fairly sharply after the date on the notice, you may find that you have issued too soon.
For example if you have put the notice expiry date as being the 1st June and issue on the 3rd June, when in fact the notice expiry date (under the saving clause) is actually 12th June. Or maybe, for example if there is a deemed service problem with a notice served during a periodic tenancy, 1 July.
Be careful about ‘deemed service
The expiry date on your notice may be wrong, not because of a mistake in your calculations, but because the ‘deemed service’ rules mean that expiry date is too early.
Say for example you serve the notice at 4.45 pm on the Thursday before Good Friday. Because it was served after 4.30 pm the notice will be deemed served on the next business day. But as this is Easter, this will not be until the following Tuesday. So if the notice period ends two months after the Friday, it will be too short.
Your notice will be saved by your saving clause, but this won’t help you if you issue before the correct date.
I’ll be talking more about service of notices next time.
Crystal ball picture by outdated productions
“Only if the tenants don’t comply with the notice (ie move out before the end of the specified period) can you action it.”
But there is nothing to ‘comply’ with – given that a s.21 notice is not a notice to quit, and merely serves to fulfil the requirements of s.21 to the satisfaction of the court, should the landlord go on to apply for a possession order (which he may or may not do – neither party is obliged to act following service/expiry of a s.21 notice).
Nor does a s.21 notice entitle the tenant simply to up and leave with no further rental liability (though, of course, he may do so at fixed term expiry independent of a s.21 notice served by the landlord); and if the tenancy is periodic, Laine v Cadwallader [2000] EWCA Civ 5562 refers to “the tenant’s 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.”
Even if the tenant does apparently vacate before the notice expires, it may still be advisable for the landlord to pursue a claim for possession, for example, it may not be clear whether the tenant has permanently vacated or not. It is not unknown for a tenant to trick a novice landlord into accepting what appears to be an implied offer to surrender, only to reappear and allege illegal eviction.