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Back to basics 2: Notice to Quit

A second opportunity to delve into the basics of Landlord and Tenant law has arrived. This time I am looking at Notices to Quit and the common pitfalls that are easily made but fatal to the effectiveness of the Notice.

It is important first of all to nip in the bud a common misconception when it comes to Notices to quit. They and Section 21 notices are NOT one of the same thing. They indeed are used in completely different situations. Granted, the way they are applied can be seen as similar, however they should not be confused as it would result in a notice as useful as a chocolate teapot.

A notice to quit is a tool to be used to bring about the end of a common law/company let tenancy. Section 21 notices are used to end an assured shorthold tenancy. So if the tenancy agreement that is in place is an AST serve a Section 21 not a Notice to Quit.

A point of law that makes numerous Notices invalid is when the date of expiry should be and when it should or can be used. The date of expiry must be either at the end of a complete period of the tenancy or on the first day of the new period. If this is a little too vague, there is an alternative method. The case of Chez Auguste Ltd v Cottat stated that there was no need to give an exact date on the notice. This may appear harsh on the tenant but there was a caveat to this declaration. It just needs to be clearly identifiable to a reasonable tenant as to when the Notice will expire. As well as this, it cannot be used in the fixed term unless it is used in conjunction with a break clause.

There are certain other points that must be followed when the Notice has been served. Once the Notice has been served, rent cannot be demanded. Payment of mesne profits (equal to the rental sum) must be taken instead without prejudice to the effect of the notice to quit. It must be made clear to everyone who looks at the transactions that there is no intention to create a new tenancy found. Street v Mountford tells us that if there is no intention to create legal relations then no tenancy is created. This is particularly important because the last thing you want as a Landlord or Agent is to get to the point where the Notice to Quit has expired and possession is close, only to find that the tenancy will continue due to a few seemingly innocent statements.

These requirements must be strictly applied otherwise the notice will generally be found to be invalid. It may seem like a lot of effort but caution is the best approach. Make sure as many checks as possible take place and that will ensure that time is not wasted, particularly in a situation like possession matters where time is generally of the essence.

A number of you may well be signed up to our helpline. If you indeed are and wish to access a Notice to Quit, then it is available via the document vault which you have access to.

It is worth noting that if it is a common law tenancy and your sole ambition is to gain possession at the end the of the fixed term, a letter stating you require possession will suffice. A letter will also suffice if the tenancy has a break clause, again no Notice to Quit is required to exercise the right. A Notice to Quit is only required once the tenancy has become periodic.

5 Comments

  • Natalie 26th October 2011 at 11:30 am

    Thank you for this very interesting and useful post. With regards to the final sentence that the Notice to Quit is used once the tenancy becomes periodic, my understanding was that only ASTs run on to become periodic. Is this not the case?

    • PainSmith 26th October 2011 at 11:55 am

      ASTs become statutory periodic tenancies after the fixed term ends and other residential leases also run month by month and are also therefore periodic.

  • suekelly 31st October 2011 at 10:46 am

    I signed a tenancy agreement in February 2010 which shows the term of the tenancy as “six months commencing on 10 February 2010.” The Rent is shown as “£4650 Half Year”. There is no mention in the document of how much notice I have to give the landlord – nor how much notice he has to give me. Payment is shown as “in advance by 10th February 2010”.

    I’ve been told that the fixed term expired on August 9th 2010 and that the tenancy became a six monthly statutory periodic tenancy from that date. The landlord did contact me before the initial term expired and it was agreed that I didn’t have to pay the next six months in advance but could pay £775 per month on the 20th of each month. I started doing this on 20th August 2010 and asked for a new agreement to reflect this at the time but the landlord said it wasn’t necessary. The landlord has now issued a S21 giving me 2 months notice. Surely this is not correct if I have to give 6 months notice?

    • PainSmith 31st October 2011 at 3:22 pm

      If the rent was paid 6 months in advance during the fixed term then the landlord can not now serve you with a 2 month notice as the period is 6 months. His notice is invalid. You may want to get legal advice from the CAB.

  • suekelly 31st October 2011 at 4:14 pm

    Thank you. I will do as you suggest.

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