Here is a question to the blog clinic fast track from Ali who is a tenant.
My family are tenants in a house. After the initial fixed-term contract, we are currently on a monthly rolling contract.
We had plans to move out of the property to pursue employment abroad. We received a job offer with a suggested a start in November and therefore gave a month’s notice by text to the landlord in late September.
On reflection immediately after, due to multiple difficulties in getting accommodation and child care in the new location, not to mention the resurgence of COVID, in general, we felt it would be better to stay in the current location/job until the new arrangements could be definitively sorted and hopefully the COVID wave was receding. The employers in the new job were happy to defer a start there to even the start of 2021.
Within 48 hours of the initial text, we informed the landlord that we would not be moving and prefer to stay in the current house and job for the time being. The landlord has said that they want us out by the end of the one month period and are not willing to negotiate any delay in leaving the property.
Up to this point, we have had an amicable relationship with the landlord. Clearly, even if we take up the new jobs at a later point, getting an ultrashort rental of less than 6 months locally is proving extremely difficult to impossible. There are barely weeks to go before the moving out date and we wanted to know if we have any legal rights to stay on in our current location until such time that we can make our move abroad more securely and safely.
Answer
Yes, you are entitled to remain in the property. All residential tenants have the right to remain until such time as a court order for possession has been made, and even then you can wait until a bailiffs appointment or High Court Enforcement Officer appointment.
It is only at that stage that you can legally be physically evicted from the property and then only by the proper County Court authorised bailiff or High Court Enforcement Officer (formerly known as the Sheriffs).
So yes, you are legally entitled to remain.
The things which worries me though is that there is a very old piece of legislation, the Distress for Rent Act 1737, which provides that if a tenant gives a tenants ‘Notice to Quit’ and then fails to vacate, the landlord is entitled to charge double rent until you move out. I wrote about this here.
There is not, so far as I am aware, any recent authority on precisely what will constitute a ‘tenant’s notice to quit’ other than the fact I suppose that it should be in writing. I don’t know whether a text message would qualify.
If the landlord became aware of the double rent rule and sought to enforce it, you could maybe argue that a text message does not constitute a legal ‘notice to quit’. Hopefully, however, your landlord will not become aware of this as it is not well known. If you pay your rent promptly and on time he may not take any action.
So my advice is to stay where you are but if your job offer is still available you may want to take it up fairly soon.
Following on from this, my advice to tenants generally is that you should be very careful before giving your landlord notice to quit and should only do this once you are really sure that you wish to leave.
I do not think it is quite correct to say that a tenant who has served a notice to quit is entitled to remain in possession. A notice to quit given by the tenant brings the tenancy to an end and once the notice to quit expires there is no legal basis for the tenant to remain in possession. A tenant who stays on is a trespasser and the landlord can seek an order for possession on that basis. Whilst the landlord may need a court order to secure possession that is not the same as saying the tenant has a legal right to be in possession.
A landlord who wants possession does though need to take care that he does not inadvertently agree a new periodic tenancy by, for example, demanding or accepting rent
Thank you for the comment. On further examination of the texts, we did not actually give notice, ie we stated that we were planning to move out around a certain time, but did not state a definite date at any point. The landlord has then gone on to essentially tell us that we have to vacate and givens a month’s notice. Does this change things?
A notice to quite must be unequivocal. Your notice sounds like it does not amount to a notice to quit, but without seeing the exact wording it is not possible to be sure.
Shelter are of the opinion that a tenant of an AST who remains in a property after their valid notice ends can be removed without a court order. This is because the list of tenancies where court action is required in the Protection from Eviction Act 1977 is exhaustive and doesn’t include ASTs.
In this specific case, the tenancy agreement might have some helpful information about how notice has to be given. For example if it has to be in writing to a specific address a text message is implicitly excluded.
Thanks. I have just reviewed the texts and we did not state a date of moving out at any point but the landlord has interpreted things differently and essentially given us notice of 1 month. The contract does not state a notice period, other than to say that it is “consistent with the law of the land” or something to that effect.
When did your landlord tell you to move out?
@John-Paul I would be very surprised if Shelter said anywhere that a tenant can be removed without a Court order. Can you provide a link to where they say this please?
The Protection from Eviction Act applies to ASTs as it applies to all residential occupiers (apart from those listed in s3A).
S1(1) of the Act says:
In this section “residential occupier”, in relation to any premises, means a person occupying the premises as a residence, whether under a contract or by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of any other person to recover possession of the premises.
Ali, if you did not give a date for moving out then it is probably not a proper Notice to Quit.
I have had this discussion with Shelter too – they interpret the PfE Act ’77 as not applying to ASTs when the tenant themselves has given notice. They reckon that a landlord can take possession without a PO if he can gain peaceful entry (i.e. without violence to secure entry, most likely when no-one is home).
I asked then to clarify this last year and their site now says:-
“Tenants’ status after their notice period expires
A valid NTQ served by the tenant will end their periodic tenancy. A tenant’s status in the property after the notice period expires will depend on the type of tenancy they had.
Section 3 of the Protection from Eviction Act 1977 (PEA 1977) imposes an obligation on landlords not to evict a tenant without obtaining a court order for possession (except where the tenant is an `excluded occupier’). This protection can extend to a former tenant but only if they are not a ‘statutorily protected tenant’ as defined by section 8 of the PEA 1977.
’Statutorily protected tenants’
If any of the following types of tenant remains in the property after the notice period they gave in a valid NTQ expires, they may lawfully be evicted without a court order:[10]
Rent Act protected/regulated tenant
assured and assured shorthold tenant
agricultural assured, and agricultural assured shorthold, and protected (by the Rent (Agriculture) Act 1976) agricultural occupier
assured tenant, where it arises on expiry of a long lease
tenant of an agricultural holding or farm business tenant
business tenant
other tenants who are excluded occupiers[11].
However, if the landlord tries to evict one of these former tenants without obtaining a possession order they risk criminal prosecution if they use or threaten violence (against a person or property) to regain possession if anyone is present in the property[12] – see Criminal Law Act 1977 for more information.”
https://england.shelter.org.uk/legal/security_of_tenure/notices_to_quit_tenants
The PfE Act ’77 itself says:-
“3 Prohibition of eviction without due process of law.
(1) Where any premises have been let as a dwelling under a tenancy which is neither a statutorily protected tenancy nor an excluded tenancy and—
(a) the tenancy (in this section referred to as the former tenancy) has come to an end, but
(b) the occupier continues to reside in the premises or part of them,it shall not be lawful for the owner to enforce against the occupier, otherwise than by proceedings in the court, his right to recover possession of the premises.”
It would handy to have a summary of what the “Statutory Protection” actually consists of for an AST in various circumstances..
@Tessa
I was slightly surprised when I came across Shelter’s view.
Which @John has detailed.
But it’s hard to argue against it.
I also (for what it’s worth) don’t think the text message sounds like notice on its own, but it’s possible that further communication changes the interpretation. A response from the landlord that confirmed they had interpreted the text as notice, for example, would change the situation.
I doubt that Shelter ever said that
https://england.shelter.org.uk/legal/security_of_tenure/notices_to_quit_tenants
Can we have your input please, Tessa?
It seems to me that the above issue re. the possible lack of need for a court order, in conjunction with the “double rent” scenario makes giving notice by a tenant rather risky. Is it not far safer to contrive to get the landlord to issue a S21 and then simply surrender the tenancy when ready to move out? Some people are of the opinion that you are still obliged to give notice when you yourself are under notice but I have not heard of a case where the court enforced this. Since it is the deposit protection people that would usually decide if a month’s rent in lieu of notice was a fair deduction it would be useful to know if they generally follow the court’s approach. This is one of those grey area topics that keeps getting discussed yet no-one seems to have a clear answer.
I agree tenants need to think carefully before giving a tenants NTQ.
If the tenant’s plans are uncertain and they are willing to lose a months rent it may even be safer just to vacate when the time comes and accept that they will lose a months rent in lieu of notice (assuming they have a periodic tenancy).
Thanks for all your comments again. Our landlord has gone down the section 21 route, so it gives us flexibility to move when our onward plans are confirmed.
But a S21 notice requires possession after a specified date.
It does not say a tenant can leave before that date without penalty.