How to end an Assured Shorthold Tenancy - Notice by Tenants
Rachel Garton, 23rd November, 2017
How much notice does a tenant have to give a landlord? Does a tenant have to give notice to quit if the landlord has already served a notice?
These questions come up regularly in my practice, and seem to cause confusion for both landlords and tenants.
As a landlord, tenant notice is crucial. Without it, you can be left with costly void periods.
With that in mind, I've written this blog to explain the answers to these questions, and clarify the legal position for landlords.
First things first: check the tenancy agreement
The tenancy agreement is the first place to look for tenant notice requirements.
It will usually set out the length and form of notice required, and on whom and at which address the notice should be served.
Usually a notice to quit is required in writing and in line with periods of the tenancy.
So for a monthly tenancy, it must be at least one month, to expire on the last day of a period of the tenancy.
For example, if the rent was payable monthly on the 7th of each month, the last day of a period of that tenancy would be the 6th of each month.
So a tenant’s notice given on the 1st of the month would have to expire on the 6th day of the following month.
Giving notice after the Initial Fixed Term
Can a tenant be contractually required to give more than one month’s notice to quit?
If the tenancy agreement says nothing about tenant notice, it’s an implied term of the contract that it must be in writing.
Under the common law, notice must be at least one complete period of the tenancy, so 4 weeks if 4-weekly, or 1 month if monthly, to expire the last day of the period and subject to the statutory requirement that notice must be at least 4 weeks (Protection from Eviction Act s5).
Outside of the initial fixed term, a landlord can only enforce any contractual tenant notice period longer than the 4 weeks/one month if the tenancy is not a Statutory Periodic Tenancy.
(I.e. only if the tenancy was a contractual periodic tenancy from the start. By which I mean no initial fixed term, just month-to-month or week-to-week from the start of the tenancy).
Or if the tenancy became a contractual periodic tenancy rather than a statutory periodic tenancy.
You can usually spot a contractual periodic tenancy in the tenancy agreement. Look for words that state that after the fixed term the tenancy will continue on a monthly or weekly basis, or similar.
Giving notice within the Initial Fixed Term
Most Assured Shorthold Tenancies (ASTs) have an initial fixed term of 6 or 12 months.
Does the tenant have to give the landlord notice if they intend to leave at end of that fixed term?
Sometimes the tenancy agreement will contain a requirement that the tenant give notice within the fixed term. This is typically one month.
It helps landlords to have that contractual requirement so they have some notice that they will have a void to fill.
Some tenancy agreements require two months’ tenant notice within the fixed term, but the Competition and Markets Authority guidance on ASTs frowns upon that.
It’s thought to be an unfair term, so be aware that some judges may not be willing to enforce it.
If the tenancy agreement is silent on tenant notice within the fixed term, the tenant is entitled to simply leave on the last day of the term.
That will be the end of the tenancy and the tenant will have no further rent liability.
However, if the tenant stays beyond the last day of the fixed term, even by one day, they’ll be required to give notice to quit.
A statutory or contractual periodic tenancy will be in force and they’ll be liable for rent until the end of the notice period.
Giving notice after serving a Section 8 or Section 21 Notice
Even after their landlord has served a notice on them seeking possession, the tenant is, strictly speaking, still required to give their landlord a formal notice to quit if they intend to give up possession.
Otherwise they can be held liable for rent until they have given proper notice in accordance with the tenancy agreement, and until that notice has expired.
This is because the effect of a Notice Seeking Possession is not to terminate the tenancy.
The tenancy can only be brought to an end either by a proper notice to quit, by the landlord accepting a surrender of the tenancy, or by a possession order of the court.
So, for example, let’s say a landlord has served a s21 notice on the tenant giving two months’ notice.
The tenant phones her the day before expiry of that notice, says he will be leaving the following day and asks where to drop off the keys.
The landlord is entitled to ask the tenant to serve a notice to quit in writing under the terms of the tenancy agreement. Meaning the tenant will remain liable for rent up until expiry of the notice to quit.
This gives the landlord more notice that she’ll have a void property.
Even if the tenant turns up the following day and hands over the keys, she can take the keys if he decides he is still going to leave. But tell him she doesn’t accept them as surrender of the tenancy and that he’ll be liable for the rent until a valid notice to quit has expired.
Of course, in reality, many landlords that have served a Section 8 or Section 21 Notice have done so because the tenant is not paying the rent or is otherwise an undesirable tenant.
So the landlord may well be happy just to accept a surrender in the circumstances described above because they’re content to have possession of the property without having to go to court.
They may well be realistic if they know the tenant has no funds to pay them during any notice period.
However, applying the requirement to give notice to quit can be useful in some circumstances.
For example, where the landlord knows the tenant has the funds to pay the rent during any tenant notice period.
Or where the landlord is holding a deposit from which she is entitled to retain monies to cover rent during the notice period.
Finally, an added bonus of receiving a valid notice to quit is that, on expiry of the notice, if the tenant doesn’t give up possession the landlord is entitled to rely on the very old Distress for Rent Act 1737. And start to charge double rent for each day that the tenant stays on beyond expiry of the notice.
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