This is a question to the blog clinic from Olu, who is a landlord in England.
My tenant refused to leave at the expiry of the tenancy though I reminded her the tenancy only had 2 months left to run and I didn’t intend to renew as the property would be needed
She did not at the time indicate or confirm her intention not to vacate but subsequently refused to move, and in court (with the CAB on her side), the notice I gave reminding her was deemed not enough/appropriate
My question then is … Is a landlord required to issue a S21 notice to a tenant at the end of a 12-month tenancy, and if so, then what is the point of the AST if the tenant can simply refuse to move after the 12-month period?
Answer (England only)
When a landlord rents out a property to a tenant, that tenant acquires certain legal rights. One of which is that the tenant has the right to remain in the property until evicted through the courts. This right is found in the Protection from Eviction Act 1977.
Note that even if you don’t intend to create a tenancy, in virtually all cases, one will be created automatically if you allow someone to live in your property and accept rent from them.
So once your tenant is in occupation, you can only recover vacant possession by:
- The tenant moving out voluntarily, or
- A court bailiff (or High Court Enforcement Officer) acting under the authority of a court order for possession.
If, as a property owner, you do not like this, the answer is simple – do not rent out your property! For example, if you are looking for an investment, invest in something else.
If you are questioning the point of issuing a tenancy agreement, then
A tenancy will be created whether you want one or not, if someone starts living in a property and paying rent. The point of the tenancy agreement is that you can include various terms and rules which will protect your position as landlord.
It will not entitle you to chuck your tenants out the day after the fixed term ends, but it can, for example,
Landlords should never allow tenants into occupation without signing a properly drafted tenancy agreement first.
At the end of a fixed term
Where a property has been let for a ‘fixed term’ the rights of the landlord and the tenant at the end of that fixed term are different.
The tenants’ rights
If the tenants vacate before midnight on the last day of the tenancy, then the tenancy will end. So, for example, their obligation to pay rent will also end. The landlord cannot extend the tenant’s liability beyond the fixed term if the tenant leaves.
However, if the tenants remain in the property, then the fixed term tenancy will still end, but a new ‘periodic tenancy’ will be created automatically immediately after the end of the fixed term tenancy. This is under section 5 of the Housing Act 1988. Assuming the tenancy is an assured shorthold tenancy, which most are.
The landlord cannot do anything to prevent this from happening.
The landlord’s rights
The landlord cannot prevent the tenant from remaining in the property and thereby acquiring a periodic tenancy.
If the landlord wants the tenant to vacate (and the tenant refuses to vacate voluntarily), he can only acquire vacant possession if he evicts the tenant using the proper procedure. This will involve
- Serving the proper form of notice (normally this will be a ‘no fault’ section 21 notice), then
- After the expiry of the notice, bringing proceedings for possession through the courts, and then
- If the tenant still fails to vacate, instructing the county court bailiffs or High Court Enforcement Officers to physically evict the tenants.
This is described by lawyers as ‘due process’.
The no-fault procedure is set out in section 21 of the Housing Act 1988. Landlords must comply with various ‘pre-requisites’ and serve the correct form of notice, which is now prescribed.
The Section 21 notice can be served during the fixed term, but proceedings for possession cannot start until the fixed term has ended.
Note, by the way, that the no-fault procedure will no longer be available to landlords if the Renters Reform Bill is made law and has come into force. After that, landlords will need to use one of the other grounds for possession as set out in the legislation.
What is the point of a fixed term?
- From the tenants’ point of view, it gives them security of tenure as, (provided they pay their rent) the landlord cannot evict them during that time
- From the landlord’s point of view, the tenants are legally liable for the rent on a month-by-month basis until the fixed term ends – even if they move out.
If you want your tenants to leave
Assuming your tenant has an assured shorthold tenancy (which most do), you will, in most cases, be looking to use the no-fault section 21 procedure. In this case, you need to ensure that you are compliant with the Section 21 rules and serve the correct notice at the proper time.
It sounds as if you failed to do this. In which case, the Judge would have had no alternative but to dismiss your claim.
If a landlord is not familiar with the eviction procedure, then it is best (if the tenants fail to vacate voluntarily) to use solicitors. For example, Landlord Action specialise in this work and are well known for it.
However, if you want to save money and act in person, we do have detailed guidance on Landlord Law which you can read about here.
And finally
As I said above, if you are unhappy with tenants having these rights, then the only alternative is not to rent out the property!
Be aware also that the no-fault procedure will no longer be available once the Renters Reform Bill has been made law and come into force.
