Landlord ending tenancy

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    #16
    In Laine and Mitchell v Cadwallader & Cadwallader (2001) 33 HLR 397 the Court of Appeal said:

    [...] the judge [...] seems to have overlooked the tenant's 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 [. …]

    That seems pretty clear.

    It 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". An agreement to surrender is valid only if it complies with section 2 of the Law of Property (Miscellaneous Provisions) Act 1989. So, as suggested above, there will be an implied surrender where there has been communication between the parties and tenant has vacated and the landlord has accepted possession. In the absence of communication, if the landlord takes back control of the premises after the tenant has vacated he will have effected a forfeiture.

    I do not think that It was Parliament's intention that at any time after the service of a section 21 notice a tenant would be free to leave without giving a notice to quit. Indeed, the HA 1988 has clear indications to the contrary as it states that a notice to quit by the landlord is of no effect and that when an order for possession is obtained the tenancy continues until it is executed. What the Act has done, by providing what a section notice has to say, is to create a situation where the tenant can get confused or be misled as to what he can or must do.

    So what would a County Court find if a landlord serves a section 21 notice and without any discussion the tenant leaves and the landlord later sues for rent on the basis that the tenancy is continuing? Whilst we may all feel that the judge ought to be able to give the landlord short shrift on the grounds that he cannot complain if the tenant has complied with the requirement to leave expressed in the section 21 notice, we cannot get away from the terms of the HA 1988 and the confirmation by the Court of Appeal that a tenant is under an obligation to serve a notice to quit if he wants to end the tenancy. There is nothing to support the contention that the service of a section 21 notice gives the tenant an option to leave when he chooses. Those who do contend that are hard pressed to say at what point or during what period the option is exercisable.

    I discussed all this at some length in this thread where I post as Damocles. The discussion starts on page 6.

    Comment


      #17
      I don't think it's now possible to consider "the" intent of parliament, as the intent seems to vary over time.

      If the landlord serves notice within the fixed term to end after the end of the fixed term, the tenant can't serve their own notice.
      Which is procedurally neutral if the landlord's notice ends at the exact end of the fixed term, as the tenant can leave at that point, but not otherwise. So the tenant can't serve their own notice in line with the landlord's wishes, which puts them instantly at odds with each other.

      Because the courts decided that notice from a landlord didn't need to end at the end of a rental period unless the tenancy began as a periodic tenancy - subsequently confirmed by the Deregulation Act - the chances of a landlord's notice expiring when a tenant's notice can is also now remote. They're playing to different sets of rules.

      As a tenant can't be compelled to serve notice because the landlord wants them to, unless the tenancy can be ended by the tenant leaving, the outcome is either unsure (a surrender, as we are seeing, is not a simple matter - and any disagreement about its validity would be settled retrospectively and severely disadvantage one party) or a court decision is mandatory.

      That process incurs costs to the losing party, ultimately the tenant, so that (surely) can't have been the desired outcome either. If the process inevitably requires court action, the costs should be zero or shared.

      And the reality remains that I suspect that s21 notices are either the most or second-most common way of ending a tenancy and only a small proportion go to court. So those tenancies are ending "somehow".
      When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
      Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

      Comment


        #18
        Originally posted by Lawcruncher View Post
        In Laine and Mitchell v Cadwallader & Cadwallader (2001) 33 HLR 397 the Court of Appeal said:

        [...] the judge [...] seems to have overlooked the tenant's 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 [. …]

        That seems pretty clear.
        The tenant may not wish to determine the tenancy, at all, but is faced with a notice which requires him to leave and which has adverse consequences if not complied with. Surely that is something different? And surely the case cited was not concerned with, and didn't consider the effect of a s21 notice?

        Originally posted by Lawcruncher View Post
        I do not think that It was Parliament's intention that at any time after the service of a section 21 notice a tenant would be free to leave without giving a notice to quit.
        Surely it was parliament's intention that the tenant should understand that the notice under s21 requires the tenant to give up possession on a stated date (which is probably a date unconnected with the periodicity of the tenancy). Whether the tenant could choose to leave, without consequences as to ongoing rent, on an earlier date is really another question. If there is time to serve a valid NTQ and the tenant leaves at the end of the rental period named in the notice, the tenancy is ended as a direct result of the NTQ and the s21 notice neither adds to nor detracts from that certainty - but it does seem comical (except that it wouldn't be funny for the tenant) to find that he has left, as required, (probably mid-period, expecting a pro-rata rent refund + deposit) that the landlord is, after all, holding him to a tenancy as though nothing had happened (s21 notice notwithstanding).

        Originally posted by Lawcruncher View Post
        Indeed, the HA 1988 ... states that a notice to quit by the landlord is of no effect and that when an order for possession is obtained the tenancy continues until it is executed. What the Act has done, by providing what a section notice has to say, is to create a situation where the tenant can get confused or be misled as to what he can or must do.
        No one who has contributed to this discussion is making the mistaken assertion at a notice under s21 is a notice to quit. It is what it is: but most seem to feel that justice requires that a tenant can be certain that the tenancy has ended if the notice has been complied with (being one that requires him to leave). If not, the period of two months, calculated independently of the rent period makes no sense.

        Comment


          #19
          Originally posted by jpkeates View Post
          If the landlord serves notice within the fixed term to end after the end of the fixed term, the tenant can't serve their own notice.
          It's equally true to say that in those circumstances the tenant need not serve NTQ - he can simply go at the end of the fixed term. But your point does point to an inequality in the position of the two parties which is most unsatisfactory on the wider issue.

          Comment


            #20
            Originally posted by StuartH View Post

            No one who has contributed to this discussion is making the mistaken assertion at a notice under s21 is a notice to quit. It is what it is: but most seem to feel that justice requires that a tenant can be certain that the tenancy has ended if the notice has been complied with (being one that requires him to leave). If not, the period of two months, calculated independently of the rent period makes no sense.
            Errr...surely a valid s21 does not end tenancy nor require a tenant to leave: (Unless tenant decides to go..) only a court then PO then expiry then bailiffs/HCEO can do that (see HA 1988 s(5)(1).....)
            I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

            Comment


              #21
              Originally posted by theartfullodger View Post

              Errr...surely a valid s21 does not end tenancy nor require a tenant to leave: (Unless tenant decides to go..) only a court then PO then expiry then bailiffs/HCEO can do that (see HA 1988 s(5)(1).....)
              Interestingly, the word (required/requiring) is used twice in the second paragraph:

              2. You are required to leave the below address after [date]. If you do not leave, your landlord may apply to the court for an order under section 21(1) or (4) of the Housing Act 1988 requiring you to give up possession.

              There is nothing that I can see that could attribute one meaning to the requirement to leave emanating from the landlord's notice, and a different meaning to the court's order requiring giving up possession.

              Comment


                #22
                The point is that a section 21 notice requires a tenant to do something which he is not obliged to do. The HA 1988 makes it clear (absent any action on the tenant's part) that the tenancy continues after a section 21 notice is served. If there is a tenancy the tenant has the right to remain in occupation. There ought not to be any adverse cost consequences for a tenant who stays on and does not contest section 21 proceedings. It is not the tenant's fault if the Act provides that the only way a landlord can end the tenancy is by a court order. I do not think the Act can be saying on the one hand "You can stay until the tenancy is ended as this Act provides" and on the other "You need to leave (or serve a notice to quit) when you get a section 21 notice otherwise you may incur costs."

                A section 21 notice does not have any effect. It is no more than a step the landlord needs to take if he wants to apply to the court for possession. If the landlord does not start proceedings and the tenant stays the tenancy continues. And that is where the difficulty lies. We cannot on the one hand acknowledge that the tenancy continues and on the other that the tenant can choose to end it when he wants. If you say he can then you bring in uncertainty about when the tenancy ends and certainty is an essential requirement of a tenancy. There is nothing whatsoever in the Act that says such an option arises. Further, it does not matter what Laine and Mitchell v Cadwallader & Cadwallader was about. The important thing is the clear statement that the HA 1988 does not remove the tenant's obligation to serve a notice to quit if he wants to end the tenancy. Since that obligation exists and the landlord cannot end the tenancy except as provided it has to follow that if a tenant leaves without giving a notice to quit that the tenancy continues unless the facts establish that there was an implied surrender or the landlord enters and forfeits. A landlord is entitled to rent while a tenancy continues.

                Comment


                  #23
                  Originally posted by Lawcruncher View Post
                  ...it does not matter what Laine and Mitchell v Cadwallader & Cadwallader was about. The important thing is the clear statement that the HA 1988 does not remove the tenant's obligation to serve a notice to quit if he wants to end the tenancy.
                  The issue decided upon was the right of the tenant to end the tenancy unilaterally. I'm afraid that despite your obvious expertise and experience, here, I can't equate that with the circumstances of a tenant leaving (assuming that he would otherwise have preferred to stay) under what amounts to duress: to go, or else. Apart from anything else, in the statutory form of Notice, itself, there isn't the slightest suggestion that the tenant, should or need serve any counter-notice before acting on the landlord's notice requiring possession.

                  When does a residential landlord have a right of re-entry/forfeiture?

                  Comment


                    #24
                    Yes, or else, but or else what exactly?

                    Or else that the landlord apply to court for possession and win, in which case the tenancy will be ended when the order is executed. Or else that the landlord apply to court and losses, in which case nothing happens. Or else that the landlord do nothing at all.
                    I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

                    Comment


                      #25
                      Common misunderstanding Stu, but Lawcruncher is (as almost always to the great benefit of members hereabouts...) I'm certain correct. See e.g.
                      https://www.gosschalks.co.uk/blog/20...ice-by-tenants
                      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.
                      But I agree in practice many/most agents and landlords are happy tenant simply leaves and don't bother pursuing tenant:

                      There's
                      -1. "The Law" and
                      -2. "what's reasonable, fair and logical".
                      ... frequently not the same...

                      NB There are other ways a tenancy may be ended....see
                      https://www.property118.com/the-vari...cies-end/6307/
                      &
                      https://www.landlordlawblog.co.uk/20...der-explained/
                      I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

                      Comment


                        #26
                        Originally posted by KTC View Post
                        Yes, or else, but or else what exactly?

                        Or else that the landlord apply to court for possession and win, in which case the tenancy will be ended when the order is executed. Or else that the landlord apply to court and losses, in which case nothing happens. Or else that the landlord do nothing at all.
                        You've answered the question, save that the biggest issue for a tenant (particularly if he has read that a landlord has a right to recover possession, on notice, and doesn't really need to prove anything (beyond getting the notice right) is the hassle, stress, delay and costs of facing legal proceedings. So most, naturally, leave voluntarily - but (and this remains my point) the tenant is not taking unilateral action, but acting in accordance with the landlord's notice. The landlord hasn't merely expressed a general desire that the tenant should leave, but has served a notice that requires the tenant to leave (and it does: require is the word used), and in default of compliance, the tenant is exposed to adverse consequences.

                        s21C certainly contemplates tenancies being brought to an end "as a result of the service of a notice under section 21", which is not really reconcilable with saying that such a notice has no effect. I accept, however, that the law is far from clear, but my original question was whether the question has ever been settled in court. Plainly the answer is that it hasn't.

                        Comment


                          #27
                          If the issue had been determined in court (and it, surely, must have arisen), that would be a county court and the issue would be a) probably unrecorded and b) not a binding precedent.

                          A process that requires a tenant, having been told that their landlord wishes them to leave their home, to then serve their own written notice that irrevocably brings about the landlord's wish (regardless of their own preference) is essentially unjust.
                          That can't have been the intent of parliament.

                          When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                          Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                          Comment


                            #28
                            Originally posted by jpkeates View Post
                            If the issue had been determined in court (and it, surely, must have arisen), that would be a county court and the issue would be a) probably unrecorded and b) not a binding precedent.
                            I'm assuming a CC decision having been appealed.

                            Comment


                              #29
                              Originally posted by theartfullodger View Post
                              Common misunderstanding Stu ...
                              That assumes the very thing we are debating, but the fact that another legal practitioner also holds the 'safe' view set out in your link doesn't really add anything to the debate.

                              Comment


                                #30
                                Originally posted by StuartH View Post
                                I'm assuming a CC decision having been appealed.
                                I've thought about this a bit and I can't see how an appeal on this issue could arise in practice.

                                If the tenant doesn't leave, the landlord has to go to court, and the court decides whether the notice is valid and if it does, it orders a repossession.
                                That decision might be appealed, but, if it is, it would be by the tenant, who is unlikely to challenge it on the basis that the tenancy has somehow ended already.

                                And if the landlord wishes to challenge a failed attempt at repossession, the most practical route is to serve notice again and try again, rather than appeal.

                                An appeal to a high court (or above) is significantly more expensive, difficult and has a longer lead time than a county court.

                                When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                                Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                                Comment

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