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Notices to quit: the landlord’s step-by-step guide to getting it right

31st July 2019

Notices to quit: the landlord’s step-by-step guide to getting it right

This article is intended to assist landlords and their advisors to ensure their Notice to Quit (NTQ) to determine the lease of their property is correct. It covers NTQs served against tenants occupying pursuant to a periodic tenancy for which a NTQ is required. The tenancy must therefore be outside of the fixed term. Please also note that NTQs do not apply to assured, secure or assured shorthold tenancies; for those tenancies a different form of notice is required. This guidance does not apply to business tenancies which attract the protection of the Landlord and Tenant Act 1954.

Are you entitled to serve a NTQ?

Service of a NTQ is a unilateral right and does not depend on acceptance by the tenant, nor the landlord’s motive. In fact, the effect of the service of a valid NTQ is to bring the tenancy to an end, even if the landlord subsequently attempts to retract it (Tayleur v Wildin (1868) LR 3 Ex 303 and Clarke v Grant [1950] 1 KB 104).

It is not possible to exclude the right to serve a NTQ under a periodic tenancy. Any attempt to do so is void. This includes an attempt to only allow a NTQ to be served if certain conditions apply.

Where to start with your NTQ?

The starting point is the form of your NTQ. Although there are no strict common law requirements as to form (save that it must be clear and certain), a landlord should always put the NTQ in writing. It gives clarity and makes it much harder for a tenant to deny.

If the NTQ is given in respect of a dwelling, it must be in writing. Although there is no set form, it must contain the set prescribed information (section 5,  protection from Eviction Act 1977 (PEA 1977)). The current prescribed information is at the end of this article.

How long does your NTQ have to be?

Start by looking at the express terms of the lease. If they require a certain length of notice then that must be given, even if that is more than required by the common law (Doe d Green v Baker (1818) 8 Taunt 241 and Doe d Robinson v Dobell (1841) 1 QB 806).

Next turn to consider the common law requirements:

• For a yearly tenancy: six months’ notice is required.
• For a quarterly tenancy: a quarter’s notice is required.
• For a monthly tenancy: a month’s notice is required.
• For a weekly tenancy: a week’s notice is required.

Next, it is important to also consider whether statute imports an additional rule for your tenancy. For example, if the lease is over residential premises, section 5(1)(b) of the PEA 1977 requires a minimum of four weeks’ notice.

On what date must your NTQ expire?

The expiry date of your NTQ is very important. Although, technically, the NTQ need not specify a calendar date, it is best practice to insert the correct date because the date required for possession must be unequivocal for a valid notice.

The starting point is to consider the commencement day or date of the tenancy.

• For a weekly tenancy, the period start day can be worked out by reference to the day of the week given in the tenancy as the start date, for example, a Tuesday.
• For a monthly tenancy, the period start date will be the date of the month on which the tenancy commenced, for example, the first of the month.
• For a quarterly tenancy, the period start date will often be a usual quarter date, in other words, 25 March, 24 June, 29 September and 25 December.
• For a yearly tenancy, the period start date will be the date of the year the tenancy commenced, for example, 24 June 2019.

Where the tenancy expressly specifies the day of commencement, the words of the agreement will prevail over any contrary indication afforded by the dates for payment of rent (Sidebotham v Holland [1895] 1 QB 378 at 382).

The NTQ must give a full period of notice and expire either at the end of a period, or on the first day of any subsequent period. For example:
• In the case of a weekly tenancy beginning on a Saturday, the notice can expire either on a Friday or a Saturday.
• In the case of a monthly tenancy commencing on the first of the month, the notice can expire on the last day of any given month or the first (even if that is a short month, such as February).
• For a quarterly tenancy commencing on 29 September, the notice can expire on 24 or 25 December.
• For a yearly tenancy commencing on a quarter day and for which two quarters’ notice is required, it can expire on the last or first day of a quarter. For example, if the tenancy commenced on 24 June 2018, the NTQ must expire on 24 or 25 December 2018. If the yearly tenancy does not require two quarters’ notice, say because it did not start on a quarter day, for example, 20 May 2018, then 183 days’ notice is required, so it must expire on 19 or 20 November 2018.

Possession proceedings can only be validly commenced once the notice has expired.

Should you use a saving clause?

Many landlords choose to insert a saving clause into their NTQ in case the date they put in is wrong or instead of a date. A usual form of wording is as follows:

“I hereby give you notice to quit on the day of or at the expiration of the period of your tenancy which shall next expire after the expiration of [four weeks] from the service upon you of this notice.”

Including a saving clause where the specified date is incorrect can result in there being two possible termination dates. This causes some judges to question whether the tenant could clearly ascertain the correct date from the notice and therefore whether the NTQ is valid. In Hussain v Bradford Community Housing Ltd [2009] EWCA Civ 763, the judge considered a case with two possible termination dates. In deciding that the notice was valid he  stated:

“It is true that the notice gives two possible termination dates, but only one complies with the requirements [of the tenancy]”

(At paragraph 11.)

The risk of not including a saving clause, and the date given being incorrect which will lead to an invalid notice, will often outweigh the risk above.

The date for service of the NTQ

In order to be effective, the NTQ must be served on the tenant before the required notice period commences to ensure a full period of notice is given (Re Poyser and Mills’ Arbitration [1964] 2 QB 46). Landlords are best advised to serve at least a few days before the period commences.

How to serve your NTQ

When serving the NTQ, a landlord is best advised to imagine that the tenant may deny receipt, so the landlord will need to be able to evidence service. An authorised agent or landlord can serve a NTQ.

Turning to the statutory considerations: Is section 196 of the Law of Property Act 1925 (LPA 1925) incorporated into the lease?

• If so, the NTQ is sufficiently served if left at the last known place of abode or business or sent (and not returned) by recorded delivery (section 1, Recorded Delivery Service Act 1962).
• If service is effected by leaving the document at the last known place of abode, it is sufficient if the document is left at a place which is the furthest that a member of the public or a postman can go to communicate with the tenant, such as a communal letterbox (Henry Smith’s Charity Trustees v Kyriacou [1989] 2 EGLR 110).

Where a letter is properly addressed, pre-paid and posted, there is a statutory presumption that it has been sent, and a statutory presumption that it is delivered in the ordinary course of post (section 7, Interpretation Act 1978). The presumption is, however, rebuttable.

Next, turning to consider the common law (and assuming section 196 of the LPA 1925 is not incorporated): It is essential for the landlord to prove that the tenant had knowledge of the notice before the period commenced. Personal service, by physically delivering it into the tenant’s hand, with a contemporaneous certificate of service explaining what was served and how, is by far the best course of action. If a landlord serves by first class post, recorded delivery or by leaving it at the property, it is possible for a tenant to deny receipt (as there is no one to swear that they saw the tenant get the notice) and it will be for the court to decide whether, on balance, it is satisfied that the tenant received the notice.

Check the lease as it may contain a clause “deeming” service if certain conditions are satisfied, such as serving by first class post. In addition, any express terms of the lease as to service must be complied with.

Conclusion

Issues with the correct termination date and as to service often arise with NTQs. Landlords are best advised to seek legal advice to ensure their NTQ is valid and validly served.

Prescribed information (for the purposes of section 5 of the Protection from Eviction Act 1977):
• If the tenant or licensee does not leave the dwelling, the landlord or licensor must get an order for possession from the court before the tenant or licensee can lawfully be evicted. The landlord or licensor cannot apply for such an order before the notice to quit or notice to determine has run out.
• A tenant or licensee who does not know if he has any right to remain in possession after a notice to quit or a notice to determine runs out can obtain advice from a solicitor. Help with all or part of the cost of legal advice and assistance may be available under the Legal Aid Scheme. He should also be able to obtain information from a Citizens’ Advice Bureau, a Housing Aid Centre or a rent officer.

This article was originally written for Practical Law’s Property Litigation column.

This content is provided free of charge for information purposes only. It does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.

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Sally Wollaston
Sally Wollaston
Business Development and Marketing Director
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