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  Solicitors Bude Cornwall   Article - Residential Tenancies, Notice to Quit - 27 Jul 2007 Holsworthy Solicitors


The vast majority of private residential tenancies nowadays are Assured Shorthold Tenancies
  and the advantage of such a tenancy for a landlord is that at the end of this period, he has he right to reclaim the property and there is nothing the tenant can do to prevent this.

Whilst the landlord can of course reclaim possession if, for example, the tenant has not paid the rent or otherwise breached the tenancy agreement, even if the tenant has done nothing wrong the landlord can reclaim the property after the initial period of the tenancy has expired. All the landlord has to do is serve a notice – how hard can that be? You’d be surprised!

Under section 21 of the Housing Act 1988 the landlord must provide the tenant with a minimum of two months notice in writing that he wants possession of the property. It can be served at any time during the fixed term of the tenancy (but not before the fixed term begins) provided that the tenant receives a minimum of two months notice.

The notice must not be dated to expire on or before the last day of the tenancy as this will invalidate the notice (eg if the fixed period of the tenancy expires on 31st March then the notice can be served by 31st January and the notice dated to expire after 31st March).

Matters do become a little more complicated once the fixed term tenancy comes to an end. The tenancy then becomes a Periodic Tenancy. To bring the Periodic Tenancy to an end the landlord will still need to give at least 2 months notice to expire on the last day of a period of the tenancy. The calculation of this date has caused problems for numerous landlords, as the period of a tenancy depends on how often the rent is paid which often, but not always, coincides with the period of the tenancy. This does cause some difficulties for landlords (on one case I have seen 3 defective notices served, before my firm became involved, so extending the period of time until the landlord can issue proceedings to recover the property.)

Once a landlord has served a valid notice and the 2 month period expires – what then? The tenant may still be in the property. If so, the landlord must issue Court proceedings to seek a possession order. Provided the notice has been validly served there is no defence to such a claim but often a tenant will have nowhere to go and, if the council have any duty to re-house the tenant, may be treated as having made themselves voluntarily homeless if they vacate the property without the Landlord obtaining a Possession Judgment and the enforcement of a Warrant of Possession by the Court bailiff.

If the landlord is merely seeking possession and not claiming any rent arrears then he can use the Accelerated Procedure which does not require the parties to attend the Court personally. The tenant will be given the opportunity to file a Defence but, unless there is some issue over the validity of the notice this will generally just be a request to stay at the property for as long as possible before being Ordered to leave.
So, the landlord has issued a valid notice which has expired, the tenant did not leave so the landlord issued proceedings and has obtained a Possession Judgment. Surely he can now get the tenant out; yes and no! If the tenant is still staying put then the landlord must now apply to the Court for a Warrant of Possession. The warrant gives the tenant a date upon which the Court bailiff will attend to execute the Warrant and obtain possession of the property. In some cases, depending upon the tenant the police will be advised of the date and will also be in attendance.

If matters get to this stage then the landlord should also ensure a locksmith is on hand to secure the property once the tenant has been evicted. The landlord personally cannot enforce the Judgment by attending at the property and throwing the tenant out; if he does that he will be guilty of an offence and could end up paying a fine and possibly compensation to the tenant.
Professional advice can make this process as easy as possible, Paul Finn Solicitors are experienced in acting for both landlords and tenants in a range of disputes and claims.

If you are a landlord then we can help by ensuring the correct notice is served upon your tenant and by taking Court proceedings where necessary (we can also advise on other grounds for possession as appropriate because notices can expire much earlier than the 2 months referred to above).

We also advise tenants on the validity or otherwise of the notice, service etc and as appropriate whether the tenant has a claim against their landlord for, for example, unlawful eviction or harassment.



Martin Curnow
Head of Litigation, Paul Finn Solicitors
Tel: 01288 356 256
Email: CurnowM@FinnLaw.co.uk
 
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