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Tenant’s Notices to Quit, Holding Over and Double Rent

In these difficult times tenants are increasingly giving notice to end their tenancy and then seeking to withdraw that notice or staying for a few days beyond their original term. This practice is known as holding over. Where a tenant has given notice to quit, either under a break clause or in relation to a periodic tenancy, that notice is binding on the tenant even if it is defective and it can only be withdrawn or rescinded with the consent of the landlord.

Where a tenant gives notice to quit and then does not in fact vacate the premises, staying for a few extra days the provisions of section 18 of the Distress for Rent Act 1737 come into play. This section states that to discourage tenants causing “great inconveniences … by … refusing to deliver up the possession when the landlord hath agreed with another tenant for the same” the landlord may seek double the sum normally charged in rent.

This can only occur where the tenant has given a valid notice to quit which the landlord accepts as a valid notice and where the landlord is, therefore treating the tenant as a trespasser while they hold over. In other words it can only apply where the landlord would have a right to seek possession through the Courts but is unable to do so because the tenant will not be remaining in the property for long enough to make it a practical option. The landlord may not seek double rent for a full period of the tenancy (as this would be inconsistent with treating the tenant as a trespasser) and must charge it on a daily basis. It should also be noted that failure to return keys promptly is not sufficient to engage this principle.

A landlord can recover his double rent in the normal manner from the tenant’s deposit or through the Courts although landlords are warned that, in general, neither tenancy deposit protection adjudicators or judges are familiar with this legislation and so a claim may be hard to pursue in practice.

It should be noted that this stipulation does not apply to tenants who remain in a property for a few extra days at the end of the fixed term or who try to leave part way through a period of a periodic tenancy. In both of these cases the tenancy does not end and the landlord cannot treat these persons as trespassers. The tenancy simply continues for another period until the notice is properly given.

4 Comments

  • Tessa Shepperson 1st December 2009 at 1:03 pm

    Thanks for raising such an interesting point. I have quoted from it in a post I did on my blog today.

    It would be very interesting to know if any landlords have sucessfully relied on this to claim the extra rent.

  • J 1st December 2009 at 9:48 pm

    Save that no distress for rent can be levied at all where the tenancy is a Rent Act tenancy (Rent Act 1977, s.147) and, in the case of an assured tenancy, the permission of the court is required (Housing Act 1988, s.19(1)). Given the criticism of the remedy in Abingdon RDC v O’Gorman [1968] 3 All ER 69, it’d be a brave DJ that allowed the use of such a remedy!

    • PainSmith 2nd December 2009 at 9:38 am

      J
      You are quite right about these provisions but I am not sure that this is actually distress. Save that it is in the Distress For Rent Act the process of double rent is not described in any way as distress.

  • ontological_shock 29th March 2013 at 8:16 pm

    “Where a tenant has given notice to quit, either under a break clause or in relation to a periodic tenancy, that notice is binding on the tenant even if it is defective and it can only be withdrawn or rescinded with the consent of the landlord.”

    Can you give an authority to support this statement? I mean in respect of a defective notice being binding on the tenant.

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