A tenancy of someone’s home, starting on or after 28th February 1997, will in most cases be an assured shorthold tenancy. Take advice at an early stage if there are any doubts about what type of tenancy is being terminated. The procedures for ending a tenancy are different, depending on the type of tenancy.
In most cases, the procedure will involve serving some kind of notice.
The type and format of notice may vary depending on the circumstances of the case.
Information about specific notices is given below, but as an introduction here are some general points about service of notice:
• the tenancy agreement may specify the method and manner by which notices may be served and, if the landlord does not follow the required method, the landlord’s claim for possession could be struck out by the court. Any specified method in the agreement should therefore be followed;
• in the absence of a specified method of service, service by hand, preferably with a witness, should be followed and this should be backed up by an alternative method. The alternative could be by post, with either a certificate of posting or recorded delivery. At the time of making the application to court a landlord will be required to supply the court with information about the service of the notice;
• if the notice is in the wrong form, or incorrectly served, it could mean that the landlord will lose the case. Take advice if unsure what to do.
At the End of a Fixed Term Assured Shorthold Tenancy
At the end of a fixed term AST, if the landlord does nothing and the tenant stays on in the property, the tenancy will automatically run on from one rent period to the next on the same terms as the preceding fixed term assured shorthold tenancy. This is called a statutory periodic tenancy. The tenancy will continue to run on this basis until a new fixed term or periodic tenancy is agreed or the tenant leaves or the court awards the landlord possession.
Some landlords think that if assured or assured shorthold tenants stay on after the end of the fixed term they are unauthorised ‘squatters’. This is not the case, the tenancy continues by operation of law, and they are still tenants and are legally entitled to be there.
If the landlord does not want the tenancy to continue as a statutory periodic tenancy the landlord will need to serve a section 21 notice to commence proceedings for possession. The notice is known as a section 21 notice, as the landlord’s right to recover possession and the notice procedure is set out in section 21 of the Housing Act 1988. The notice must be served on the tenant at least two months before the landlord wants the tenancy to end.
The section 21 procedure is considered to be a “no fault” procedure as it is not necessary for the landlord to establish that there has been any wrong doing by the tenant. The landlord only has to prove that the tenancy is an assured shorthold, that the appropriate notice has been validly served and that either six months, or the fixed period, has expired, whichever is the longer.
Notices to end an AST, if served during the fixed term, do not need to be on a prescribed form and may be issued by letter providing that they comply with the following rules;
• the duration of the notice must be at least two months; and
• the notice must not expire earlier than the fixed term of the agreement (it may expire on any given date after the end of the term).
If a landlord is likely to require the property to be returned to them immediately after the fixed term expires, the section 21 notice can be served at the beginning of the tenancy provided that the notice expires on or after the tenancy has come to an end.
The requirements for an order for possession under section 21 are:
• that the tenancy is an assured shorthold tenancy;
• that any fixed term of the tenancy has expired;
• that a notice properly drafted in accordance with the provisions of section 21 has been served on the tenant and has expired;
• that any deposit paid was duly protected under the appropriate regulations for tenancies created on or after 6 April 2007;
• that any licence required under the Housing Act 2004 (for example a mandatory House of Multiple Occupation licence) has been applied for or obtained.
If it is necessary to regain possession of the property quickly it may be possible to use the accelerated possession procedure. If the above requirements are met, and the section 21 notice and tenancy agreement are available in writing, the accelerated possession procedure may be used.
Otherwise, the standard procedure must be followed, which will involve a court hearing. The accelerated possession procedure may take up to six - eight weeks after submitting the application to court, depending on the case load of the court at the time.