We are often asked the question of what the situation is once a notice pursuant to section 21 of the Housing Act 1988 expires.
Thanks to the decision of the House of Lords in Knowsley Housing Trust v White it is known that a tenancy agreement for an assured or assured shorthold tenancy does not in fact come to an end until the Court Bailiff has executed an order for possession. Therefore the service of a section 21 notice does not in itself bring a tenancy to an end. This means that the measures of only referring to rent as mesne profits after the service of section 21 notice are not necessarily required (although they may be a good idea so as not to confuse busy District Judges!).
If a tenant wishes to stay after the expiry of a section 21 notice for a short period this can easily be dealt with by simply sending a letter advising the tenant that the landlord will not be enforcing the expired possession order until a specific date. Subscribers to the PainSmith helpline service will be able to obtain a suitable letter from the document vault on their website.
Section 21 notices have no finite lifetime in which they can be used, they oldest reported case involves a section 21 notice which expired 6 years before the possession action began. Therefore agents should not be overly focused on the section 21 notice and tenants staying on after it has expired and more on making sure they have not offered a new tenancy which might override the notice.
Filed under: England & Wales, FLW Article, Housing Act 1988, section 21
Thank you for this clarification of a matter which does cause a lot of confusion for landlords and commentators on online forums.
I assume from this, therefore, that once a Section 21 expires and the tenant continues to pay rent and the landlord continues to accept it, no new tenancy is created and the section 21 notice can still be enforced at any time in the future.
Yes. But this can be a slightly risky strategy as not all Courts will accept this.
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“Yes. But this can be a slightly risky strategy as not all Courts will accept this.”
But what is there not to accept?
A s.21 does not end the tenancy, therefore the existing tenancy continues – as well as the tenant’s liability for rent – so how can accepting the rent lawfully due create a new tenancy or otherwise undermine the validity of the s.21?
If the tenant moves out at expiry of a s.21, how does the tenancy/their liability end at that point (unless the s.21 also expires at the end of the fixed term)? Surely the tenancy must be formally ended either by the landlord enforcing a possession order, or by the tenant serving notice to quit?
Or, there’s surrender. Does the s.21 (arguably) comprise an implied offer to surrender?
Unfortunately there is a big difference between the law saying something and a District Judge being persuaded that it is right.
Where a tenant moves out on the expiry of a s21 notice they are voluntarily giving up the property which ends the tenancy under s5 Housing Act 1988.
Which part of s.5 HA1988?
s5(2)(b)
Reading this thread I am not clear on the possibility for the tenant to surrender the tenancy at any time following the expiry of a section 21 notice. Could that be possible? Could the landlord refuse? Must the tenant give up the property right on the expiry of the notice but not later for that to be possible?
As a section 21 explicitly notifies the tenant that the landlord requires possession, could it be construed as an offer to surrender, as suggested by ontological_shock?
When a section 21 has been issued it states that the landlord seeks possession. Therefore if negotiations take place with regards to the early release or release in general from the tenancy that should not affect the validity of the section 21. However, negotiations should be conducted carefully as it is possible to invalidate a section 21 when you did not intend to, for example agreeing to extend the occupation for some weeks after the section 21 has expired.
Thanks for the reply. However, your reply seems to indicate that, oddly in my view, the expiry of the section 21 does not entitle the tenant to surrender the tenancy, and that the landlord’s agreements should still be obtained. Is that correct?
The tenant would only be surrendering if he was to take up the landlord’s offer contained in the s21 by leaving on the date it expires. Alternatively the tenant can give the usual notice allowed at common law or one period of the tenancy if the tenancy is periodic or can use the break clause.
Many thanks for this precision.
I’m in a similar situation. I’m on a 12 months contract starting on 11/09/2010. It was supposed to expire on 10/09/2011, but on the first month of contract I have been served a section 21 notice requiring possession on 10/04/2011.
Now I’m actually intending to move out of the flat in about 15 days, but I have not given notice to the landlord. Could I leave without given the 30 days notice based on the fact that I was supposed to leave when the landlord notice expire or am I still required to give the 30 days notice anyway?
Thank you for the query. No you are not required to give notice if you are leaving upon the expiry of the section 21. I assume that it has been served pursuant to a break clause and that it is valid.
“Where a tenant moves out on the expiry of a s21 notice they are voluntarily giving up the property which ends the tenancy under s5 Housing Act 1988.”
Including for a s.21(4)(a)?
Can landlord refuse the surrender?
The notices are served by the landlord so it is not a surrender. The notice states that the landlord requires possession on a certain date and the tenant can move out on the said date.
I am not saying that this is a surrender. But as, to paraphrase you, the notice states that landlord requires possession on a certain date and that the tenant can move out on that date, when indeed moving out the tenant would surrender the tenancy, or offer to.
So basically my question was whether by moving out on the date the tenant would end the tenancy without the possibility for the landlord to refuse (e.g. on the ground that the tenant has not served his NTQ).
[Apologies if I'm a pain, this s.21 issue is really bugging me]
If a section 21 has been served the tenant can move out without having to serve a notice.
Thanks again.
Can I briefly reopen this topic and enquire as to whether the tenants rent liability remains until the expiry of the Section 21 notice, if he need not serve notice to leave earlier than the prescribed Section 21 expiry date?
I have always assumed so, just wanted to clarify!
In Nov 2010, PainSmith said: “Where a tenant moves out on the expiry of a s21 notice they are voluntarily giving up the property which ends the tenancy under [s5(2)(b)] Housing Act 1988.”
And in April 2011, “If a section 21 has been served the tenant can move out without having to serve a notice.”
S.5(2)(b) says that a periodic tenancy will arise unless the tenancy is ended [either by a court order, or] by “a surrender or other action on the part of the tenant”. (I assume the surrender is either when a T vacates at fixed term expiry, or when a T’s offer to surrender before fixed term expiry is accepted by the LL, and the ‘other action’ is when a T exercises a break clause).
If you mean that, in the case where a s.21(1)(b) notice expires at exactly the same time as the fixed term expires, then I agree that T vacating ends the tenancy; however, this has nothing to do with the s.21 notice (an action on the part of the LL).
What about a s.21(1)(b) notice expiring after the fixed term expires or a s.21(4)(a) notice? How does T vacating at notice expiry end the tenancy? It doesn’t end because of s.5(2)(b), and LL cannot offer to surrender (only T can, and LL may accept or refuse), and we all agree that a s.21 notice does not, in itself, end the tenancy, so – how and why does the tenancy end by a unilateral ‘surrender’ on the part of the T?
The tenant’s liability remains until the end of the section 21 period or earlier if they have served notice and it expires sooner.
If a Landlord serves notice on the Tenant then the Landlord is seeking possession. If the Tenant acts on that notice and leaves on the date specified then its not unilateral surrender. The notice was served by the Landlord and the Tenant has simply acted on it.
Before the HA 1988 came into force a tenant under a periodic tenancy wishing unilaterally to bring a tenancy to an end needed to serve a notice to quit and nothing in the Act does specifically alters that. The question is therefore whether there is any justification for the view that a tenant served with a section 21 notice is entitled to leave (whether before or after the notice expires) without giving a notice to quit.
The first point to make is that I cannot help feeling that if Parliament had intended that the service of a section 21 notice should give the tenant the right to leave without notice it would have said so in the Act. That is not of course conclusive and is at the most a string to my bow.
The first argument that a tenant does not need to give notice to quit is that a section 21 notice is an offer to surrender. The first hurdle that anyone advancing that argument has to negotiate is to persuade a court that where an act requires a notice to be served that the notice serves any purpose other than that set out in the act. The HA 1988 provides that a section 21 is a preliminary to applying to the court for possession and no more. It is a bit of an oddity in that the act does not (specifically) provide for the notice to have any effect. It is certainly not a notice to quit and does not impose on the tenant any obligation to leave. The fact that the act requires the landlord to state he requires possession is no more than a matter of form.
If we assume that a statutory notice can have a secondary purpose, then the next question is whether the wording amounts to an offer to surrender. Let’s suppose for a moment that the tenancy is not an AST. You write a letter to the tenant simply saying “I require possession of the property on…” I do not think that that is an offer to surrender, but rather an invitation to treat. There is not enough there to constitute an offer for a tenant to accept and in any event could only be an offer to accept a surrender on the date specified in the letter. If such a letter is not an offer to surrender, then a section 21 notice cannot be an offer to surrender.
Even if the notice does constitute an offer, the tenant has to accept it for there to be an agreement to surrender. We then run into the problem of whether offer and acceptance comply with section 2 of the Law of Property (Miscellaneous Provisions) Act. They almost certainly will not because “a contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document or, where contracts are exchanged, in each.” We can add that an actual surrender, as opposed to an agreement for surrender, needs to be made by deed or by operation of law, which involves unequivocal acts by both parties.
I think therefore that following the service of a section 21 notice notice there can only be a surrender if:
1. The parties specifically agree one.
2. There is a surrender by operation of law. You need a scenario where there is something done by both parties which is inconsistent with the tenancy continuing or where one party does something inconsistent with the tenancy continuing and the conduct of the other party is such that it would be inequitable for the tenancy to continue. The tenant simply leaving the premises is not enough.
The second argument that a tenant does not need to give notice to quit is that a section 21 notice gives the tenant an equitable right to leave because he is only complying with the landlord’s request. I initially found this argument attractive, but on reflection had to reject it. I repeat the point I made above: the HA 1988 does not provide for a section 21 notice to have any effect and the fact that the Act requires the landlord to state he requires possession is no more than a matter of form. Apart from that, it is an essential requirement of a tenancy that at any moment of time the parties know the earliest date on which it can be brought to an end. If after the service of a section 21 notice a tenant can leave when he chooses without serving a notice to quit (and whether you argue that he can leave before or after the expiry or date or both) that would fly in the face of a basic principle of landlord and tenant law. Of course statute can change basics principles of law, but there is nothing in the HA 1988 that changes the principle that the parties must know the earliest date on which a tenancy can be brought to an end.
Anyone have any comments on my post?