Here is a question to the blog clinic fast track from Katy (not her real name), who is a tenant.
Hello. Our landlord of 3 years served us an eviction notice of 6 months three months ago.
We have found a house to move into and have a projected move-in date in two weeks time. Do we have to give the landlord notice on top of their notice??
Answer
I assume that the notice the landlord sent you was a section 21 notice and that your tenancy is an assured shorthold tenancy.
The short answer is yes. You do need to let your landlord know.
He will need to arrange to do a checkout meeting and deal with your deposit. You should not just leave without telling him.
Also, your landlord’s notice (assuming it is a section 21 notice) does not actually end the tenancy. Its significance is that it is necessary before a possession order can be made in possession proceedings. In the meantime, your tenancy will continue, as does your right to pay rent.
So if you just move out, your landlord can still claim rent from you. Although if you move out at the end of the section 21 notice period, he would have problems enforcing this.
So the question is, what are his rights to claim rent if you move out before the end of the notice period?
You do not say whether your tenancy is still in its fixed term or whether it is a periodic tenancy, but this is important and affects your rights.
If your tenancy is a fixed-term tenancy
You will be liable for rent until the end of your fixed term.
If you move out at or before that date, you will not be liable for any rent afterwards. However, if you stay on, then you will acquire a periodic tenancy.
If your tenancy is a periodic tenancy
You can end this by giving a tenants ‘notice to quit’, which must end at the end of a period of your tenancy.
Most periodic tenancies are monthly. So if your fixed term ended on 5th November (for example), then your periodic tenancy will run from the 4th day in the month until the 5th.
So your tenant’s notice to quit would need to give the landlord notice ending on the next 4th day of the month after service of the notice to quit on your landlord.
The fact that your landlord served a six months notice makes me wonder though, whether your situation is different, as most section 21 notices will be for two months. You may want to check this.
And finally
Probably the best thing is to just discuss this with your landlord.
If he agrees to you leaving, accepts the keys and deals with your deposit, he cannot then turn around and demand more rent from you.
However, if you just move out without telling him, you may antagonise him making him more likely to stand on any rights he may have to claim future rent.
This is an interesting one for debate – as you yourself point out the landlord’s notice doesn’t legally end the tenancy, however you then go on to say “Although if you move out at the end of the section 21 notice period, he would have problems enforcing this.” – what would the problem be and who would resolve it? The implication here is that there is a grey area that someone would have discretion on – most people would aim to move out on or before the date on the Section 21 to avoid incurring court costs so exactly how many days or weeks early would be acceptable and who would decide? How could a tenant know in advance? Would they still be expected to give a month’s notice, ending on a rent day, AFTER the Section 21 date whilst waiting for the eviction hearing? What about after the hearing but before the bailiffs arrived (which could be weeks, months or even years later) – do they still have a legally valid tenancy, in which case does that then oblige them to give notice even though the landlord already holds a possession order?
What would be useful here is information on past court or deposit adjudicator decisions definitively awarding (or declining) the landlord rent in lieu of notice after having already issued a Section 21.
In the absence of such case histories and assuming the tenant doesn’t simply abscond unannounced, surely it would be more reasonable to argue that reciprocal official notice is NOT required. I can think of numerous arguments to justify such an interpretation.
It has been judicially confirmed that the service of a section 21 notice does not obviate the need for the tenant under a periodic tenancy to serve a notice to quit. A tenant has an “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.” (Laine v Cadwallader: CA 26 May 2000)
The judge went on to say: “Of course, a tenant does not have to give notice if his landlord agrees to accept with immediate effect the tenant’s offer to surrender his statutory periodic tenancy.” The key words there are “with immediate effect” so that there has in practice to be an actual surrender by operation of law, an agreement to surrender being void if it does not comply with section 2 of the Law of Property (Miscellaneous Provisions) Act 1989.
A tenant simply walking away without telling the landlord does not end the tenancy. That may seem unreasonable, especially given the wording of a section 21 notice which it is not unreasonable for a tenant to interpret as meaning he has an obligation to leave, but if it were otherwise the basic conditions for a tenancy (one of which is that at any given moment its maximum duration must be ascertainable) would be undermined as would the thrust of the HA 1988 that a landlord can only end an assured tenancy by a court order