Tuesday, December 7th, 2021
At a glance
The matter of notice periods to terminate tenancies is often a point of contention for both Landlords and Tenants alike. This is particularly so when notice periods have been subject to frequent change, as a result of regular amendments to legislation during the Coronavirus Pandemic. Whilst notice periods for section 8 and section 21 notices, under the Housing Act 1988 have since returned to those set pre-pandemic, notice periods are still likely to prove problematic.
Solicitor Jack Glover takes a brief look at notice periods and common pitfalls, in relation to Assured Shorthold Tenancies (AST), Common Law Tenancies and Company lets.
If the tenancy is an AST, the provisions of the Housing Act 1988 apply. In relation to section 21 notices, the requisite notice period is now at least 2 months. As to section 8 notices, the notice period can range from 0 days – 2 months, depending on the nature of the breach of the tenancy agreement by the tenant.
There may be a provision within the tenancy agreement dealing with the notice period a Landlord must give, in order to validly terminate the tenancy. If there is a break clause, this must be operated first, before a Landlord can seek to serve a subsequent section 21 notice. This restriction does not apply to a section 8 notice, or notice to quit.
Common Law tenancies and Company lets are outside the scope of the Housing Act 1988. Broadly, speaking, a Common Law tenancy relates to an agreement where the rent exceeds £100,000.00 a year, whereas a Company Let is where a residential property is let to a company. Therefore, a Landlord will only be required to give reasonable notice. What constitutes reasonable notice will depend on the circumstances. For example, if the rent is payable monthly, a months written notice is most likely sufficient.
When is the notice ‘received’?
A common mistake when serving a notice, is that those serving do not account for the rules of deemed service. In other words, the date the notice is taken to be received by the receiving party. As a consequence, this may then render the notice invalid, and the Landlord may be unable to rely on the same to seek an order for possession.
Service of documents is covered by Part 6 of the Civil Procedure Rules 1996 (CPR). If a notice is sent by first class post, it will be deemed served the second business day after it is posted. If served by fax or email, it is deemed served the same day, if sent before 16:30hrs on a business day. For example, a notice sent by first class post on Monday 29 November 2021, would be deemed served on Wednesday 1 December 2021. In contrast, an email or fax sent on 29 November 2021 at 12:00hrs, would be deemed served the same day. However, documents can only be served by email if the receiving party has indicated they will accept service via this method.
Serving the Notice, an example
To take this one step further, if a Landlord is looking to serve a section 8 notice by first class post, giving 2 months notice to commence on 1 December 2022, the notice would need to be sent by first class post by 29 November 2021, at the very latest, in order to account for deemed service rules and minimum notice period prescribed by statute. If the notice was posted the next day, it would not be deemed served until the 2 December 2021 and consequently, would not provide the tenant with at least 2 months notice.
How we can help?
Hanne & Co’s Property Litigation and Dispute Resolution Department have extensive experience in dealing with possession proceedings and can assist both landlords and tenants in relation to the same. Should you require advice on any of the matters raised above, or any other Landlord – Tenant dispute, please do get in touch with our Property Litigation and Dispute Resolution Department and we will be happy to assist.
Contact the author:
Jack Glover, Solicitor