This post is part of my urban myths series. You can see the rest of the series >> here.
I often get asked by landlords about how long a section 21 notice lasts. Questions include:
- Can I let the tenant stay on after the end of the notice period?
- If I allow the tenant to stay on will I have to serve a new notice?
- How long does the section 21 notice last for?
The answer to the last question is that the section 21 notice lasts as long as the tenancy does. So it can be, and in some cases has been, used several years after the notice period expires. This is not really good practice and Judge’s won’t like it, but they will not be able to refuse you a possession order on that basis.
The notice will only end, when the tenancy ends, which is when you give the tenant a new tenancy agreement (giving a new tenancy agreement will, in most cases, automatically cancel the preceding tenancy).
If you have a troublesome tenant, this is one reason for allowing the tenancy to continue, on a periodic basis after the fixed term has ended. You will be able to hold the threat of issuing proceedings under the section 21 ground, over them, to make them behave. However, if you give them a new tenancy agreement you will not be able to evict until the new fixed term has expired. And you will have to serve a new notice.
So ‘allowing’ the tenants to stay on after the notice period has ended, will not affect anything. They are entitled to stay on anyway, if they wish. The only way you can *force* them to go is by getting a possession order from the courts. It is a criminal offence (under the Protection from Eviction Act 1977) to evict a residential tenant other than through the courts.
The significance of the end of the notice period is that you can issue proceedings for possession under section 21, not that you’ve got to.
The estoppel argument
There are some circumstances though where the tenant may possibly have grounds to object:
- If they have done something extra on the basis that they will be allowed to stay, for example paid a lot of rent up front, also if a third party (such as a relative) has paid rent on the basis that they will be allowed to stay
- If you have said to them that they can stay on *and* they have done something in reliance on this which you were aware of. For example if they have re-decorated the property believing that they will be allowed to stay there for a long time.
In these circumstances it is possible that the tenant may be able to use a legal rule called ‘estoppel‘. This says basically that if someone (ie you) stands by and allows another person (ie your tenant) to ‘act to his detriment’, knowing that they are acting under a misapprehension, then you will be ‘estopped’ from relying on your strict legal rights.
However it is quite easy to avoid an estoppel situation. Just be very careful what you say to them about the notice, and always make it clear that you reserve the right to use it if needed.
If you do say that they can stay on (for example if a relative offers to pay the rent) make sure that you specify the period of time you will allow them to stay for, so it is not open ended.
Have you experienced any problems in using a section 21 notice a long time after it was served? Has anyone known of a situation where tenants have successfully challenged a section 21 notice on the grounds of estoppel?