Here we have a question to the blog clinic from Derek (not his real name) who is a landlord:
My letting agent has received valid notice to quit from our tenant (periodic tenancy). The agent has confirmed acceptance in writing.
The tenant is buying a property but now at the last minute wants to stay longer because the purchase is delayed.
Having made maintenance and holiday arrangements around the original notice date I want to hold the tenant to it.
I’ve read that that a tenants valid notice always ends the existing tenancy and it then requires the landlords consent to offer a new tenancy and that if the tenant holds over they will be trespassing. The agent tells me this is not the case in law.
My letting agent tells me that the tenants notice is not binding and that the tenant can withdraw the original notice and submit a new written notice to get the one month extension requested by the tenant. They cite the 1988 Housing Act in support of their position, and say that the existing tenancy agreement just carries on until the tenant vacates?
Yes, the tenant would most likely pay the rent and be gone before a section 21 could come into effect so I realise that despite the inconvenience, it’s probably a case of ‘live with it”.
However I want to know whether the agent has advised me correctly as to the exact legal position (as opposed to what is pragmatic and easy for them in the circumstances)?
Is the original valid notice to quit binding on the tenant? Can the tenant withdraw and replace it unilaterally as the agent suggests?
My understanding is that if the tenant serves a proper notice to quit, then that will end the tenancy. I am not aware of any rules saying that it can be retracted. (Although you can resurrect the tenancy by accepting rent without qualifying that it is accepted as ‘mesne profits‘.)
So if you act in reliance on the Notice to Quit and suffer loss when he fails to leave, it is arguable that you should be entitled to compensation.
There is also the very old rule in the Distress for Rent Act 1737 which I discuss here which says that where a tenant gives notice to quit but then fails to move out, the landlord is entitled to charge double rent.
I suggest you draw your tenants’ attention to this.
So far as bringing proceedings for eviction is concerned, yes, they will be long gone before you could make much headway.
Although the notice to quit ends the tenancy, strangely we do not use the quicker ‘squatters’ procedure designed for trespassers in this situation, but the standard procedure as used for tenants.
Its a bit odd I know but there you are, thats the legal system for you.
So the double rent option fills the gap rather nicely.
Adrian Thompson of the Guild of Landlords confirmed in a comment to this post that he has used it and it has been used many times by the members of his site.