What is the Notice Period of a Tenancy Agreement?
What is a Tenant Agreement Notice Period?
The tenancy agreement notice period is the time between giving a tenant notice of your intention to end the tenancy and when they are required to leave the property. Initially meant to protect the tenant, the notice period is now used by landlords in a more positive light, as they can effectively calculate the time they are giving themselves to renovate and let out the property again. Under the current tenancy laws in the UK, if a tenant wishes to end their tenancy, they are required to give at least a month’s notice to their landlord. However, this tenure of notice can vary depending on the agreement of the tenancy. Notice must never be given by either party of the tenancy at the time of the property letting – it must only be given if the tenant wants to end their tenancy before its natural conclusion , or if the landlord wishes to begin a possession claim against the tenant. Notice must clearly state the intention to seek possession of the property and the landlord’s name and address. If service of notice is not done correctly, this could negatively affect the landlord’s ability to gain an eviction order through court means. If a tenant has an assured shorthold tenancy, they must be informed of their landlord’s address on or before the day they take possession of the property. This means that if the landlord’s address is not given to the tenant, and they begin their tenancy, they would have no legal obligation to provide notice to the landlord. If either party were to fail to provide the right notice required, then the tenancy would carry on without a conclusion being reached, and the tenant would be waiting in their rented property until the correct notice period had elapsed, leaving the landlord out of pocket until the situation was resolved.
Normal Notice Period of a Tenancy
Under the government’s reforms, the three-month notice period will be replaced with a six-month notice period, with longer notice periods required for certain types of tenancies. Specific notice periods are currently in place depending on the type of tenancy entered into, as set out below:
Periodic Tenancies
Assured Shorthold Tenancy (AST) – 2 months’ notice;
Tenancy Let Before 27 March 2002 – 2 months’ notice;
All Other Contractual Tenancies – 1 months’ notice; and
Tenancy’s Granted By Statutory Instrument – 4 weeks’ notice.
Fixed-Term Tenancies
Tenancies Of Any Fixed-Duration (which would include a tenancy with a fixed term of six months or more) require at least 2 months’ notice of the land lord’s intention to terminate the tenancy at the end of the contracted term. When the earliest date the tenancy could be terminated is reached, the landlord must serve notice (as above) that he/she will not be renewing the contract after the expiry date. The effect of the notice is that the contract may then be terminated immediately at the end of the contract term in accordance with its provisions. Note that this is only where the contract has no automatic right to renew/rollover, and does not provide for the compensation of the tenant for the loss of the security of tenure.
Tenancies of less than 6 months
Assured Tenancies & Assured Shorthold Tenancies – 4 week notice;
Tenancies let before 15 January 1989 – 12 week notice; and
All Other Tenancies – 28 day notice.
Notice Period Requirements and Regulations
Because tenancy agreements are legally enforceable, the law mandates a legal requirement for providing notice before the termination of tenancy. The law requires landlords to be specific in regard to the amount of time required as notice before an eviction, hence the recurring time spans in tenancy agreements and rental contracts. Also, notice must be provided where the tenant has invited guests into the rental unit and those guests become ingrained in the home. Specifically for a tenancy agreement, the official period of time required for proper notice is outlined under the Tenant Fees Act 2019 and the Henry VIII Clause, which began on the 1st of June 2019. Because the failure to provide official notice is a breach of the rental contract, it can be grounds for tenants to sue the landlords for penalty. As well, failing to give proper notice can affect the tenancy deposit guarantee. Under Section 21 of the Housing Act of 1988 (as amended by the Localism Act 2011), landlords are required to provide two months’ notice for all assured shorthold tenancies (ASTs). If the tenant has been residing in the property for less than five years, then tenants must be given six weeks’ notice. If the tenant has been living in the property for between six and seven years, then tenants must be given three months’ notice. Finally, if the tenant has been living in the property for more than seven years, then landlords must provide at least six months’ notice. Tenants must also be aware that the notice must be served in a particular way to comply with the relevant legislation. Notice must be served per the rules laid out for possession procedures in the Housing Act of 1988 and Housing Act 1996 (as well as by the Commonhold and Leasehold Reform Act 2002) – which will be covered in the return to court section. When viewed with the requirements set forth by the Tenant Fees Act 2019 and the Henry VIII Clause, it is critical that the landlord carefully follow every regulation required by the law. Non-compliance of any form could make it very difficult to remove the tenant from the property completely. To ensure the correct compliance, many landlords hire letting agents to provide adequate support for proper service.
Tenant Notice to Terminate a Tenancy
A tenant can end the tenancy agreement by serving notice on the landlord/agent in accordance with the terms of the tenancy agreement. The notice period is typically one month (if the rent is paid monthly) and two weeks if the rent is paid weekly.
Where the agreements does not contain a provision for the notice period then the statutory notice period will apply. This will generally be the period of 4 months. This may be extended by a further 2 months where the agreement was for a period of a minimum of 8 months or where the rent exceeds £250 in London or £100 elsewhere.
The tenant must serve notice on the landlord/ agent before the due date for rent. The notice period will not start until the first rent day following the service of the notice. Where the tenant does not leave on the rental due date following the expiry of the notice period then they will be an illegal trespasser.
The tenant should retain a copy of the notice served on the landlord/ agent in order to demonstrate that proper notice has been served. It would also be advisable to obtain a receipt of this notice (or send it in a manner such as recorded delivery which provides proof of delivery) in the event of any dispute as to the notice period having been served.
Landlord’s Notice to Terminate a Tenancy
Under UK legislation, landlords may provide a tenancy notice to a Residential Tenant of a dwelling in England (or Wales) in order to bring a tenancy to an end, at the end of a fixed term or during the course of a fixed term, provided that they follow the correct procedure and provide the correct amount of notice for the type of tenancy concerned.
For an assured short hold tenancy, within England (or Wales), a landlord must serve a valid notice under section 21 of the Housing Act 1988 (an "S21 notice"). This can be served on the tenant at any time, even during the first six months of the tenancy and even if the tenancy is no longer binding on the landlord (i.e. the landlord wants to bring the tenancy to an end). S21 Notices are not appropriate to bring certain types of tenancy to an end (e.g. an assured or secure tenancy), which applies to most residential housing association tenants (in England) and Local Authority tenants . In those circumstances, a two-week or four-week notice period is necessary depending on the frequency the rent is paid, and prescribed by the tenancy agreement. S21 Notices are necessary to bring assured short hold tenancies to an end even if the landlord and tenant have contractualised around this. Therefore, even if the landlord and tenant have a written agreement that the tenancy will end in one month’s time, the landlord must provide a S21 notice and give the tenant two months’ notice before the tenancy can be brought to an end. The landlord is not able to include additional terms in their S21 notice but it is possible for the notice to refer other documents which contain terms of the landlord-tenant relationship which are properly incorporated into the tenancy agreement by reference, or basic conditions set out in legislation. However, the notice must provide all required information clearly and as distinct from other documentation; the landlord cannot rely on a tenant recalling information from other documents.
Exceptions and Special Cases
A Tenant’s Agreement Notice Period does not apply in certain special and exceptional circumstances. These include:
(a) an emergency situation
(b) a reduced security deposit
(c) a breach of tenancy agreement by the tenant (material breach)
(d) a death
4.1 Emergency Situation Notice
The notice period in a tenancy agreement (section 2 above) can be waived in an emergency situation. For example, under section 81 of the Housing Act 1988 ("HA 1988"), where emergency works have been carried out by a local authority to remedy or reduce the danger of injury to health, an occupant of the property may not be evicted from a property until the expiration of a notice period under the tenancy agreement, without the court’s permission. Section 81(10) HA 1988 provides that an emergency is where:
(a) the court or the council is satisfied that there was an imminent risk of serious harm to an actual occupant of the property if the works had not been carried out quickly;
(b) the form of works had been carried out as quickly as possible and
(c) there was a public interest in the relevant works being carried out promptly.
An emergency would permit, for example, the authorities’ discharge of a duty under the Environmental Protection Act 1990 ("EPA 1990") where there is an imminent risk of serious harm to a person’s health or safety because of the condition of the property. The notice period would also be waived in a dangerous structure emergency where the courts recognised an immediate life threatening structural risk to the occupier. The court has jurisdiction under sections 81(7) and 82 HA 1985 to order possession of the property if:
(a) the tenant or a person living with them has been convicted of an offence under section 80 EPA 1990 and the court is satisfied that the offence was committed at the property and
(b) the offence was caused or made possible by the neglect of the tenant.
Importantly, where the security of an assurance tenancy is threatened by a member of the tenant’s household, the landlord can apply for possession of the property under section 84A HA 1985. The respondent must have been convicted of a violent offence against a person living in the premises or a member of the tenant’s family, in which case the landlord can execute a notice to quit without the usual notice period.
4.2 Reduced Security Deposit
Where a tenant has supplied two or more separate security deposits and the landlord has repaid some of the security deposits, the notice period in a tenancy agreement will revert back to 48 hours (section 5(2) Housing Act 1996 ("HA 1996")).
4.3 Breach of Tenancy Agreement
Where a tenant has breached a term of a tenancy agreement, then the landlord can give the tenant notice to end the tenancy without the usual notice period (section 5(2) HA 1996).
4.4 Death of a Tenant (non-shorthold tenants only)
Where the tenant has died, the tenant’s personal representatives can apply to the court for an order which disregards the agreement notice period (section 5(1) HA 1996).
Repercussions of Notice Errors
If the correct procedures are not followed when serving notice to quit or Section 21 notice however the consequences can be severe, and could potentially result in the loss of rent over an extended period. Therefore it is crucial that both landlords and tenants are aware of the type of notice they require to end their tenancy and the notice requirements applicable to their agreement. Failure to provide the correct notice period can lead to the following potentially expensive outcomes:
• Tenants may face possession proceedings for failure to give the landlord sufficient notice to vacate.
• A landlord may face possession proceedings for failing to adhere to the correct procedure to serve notice on a tenant.
• A landlord may face an order being set aside for possession as a court can only make an order for possession once they are satisfied that the landlord has correctly served a valid Section 21 notice.
• If a landlord fails to tell their tenant that their deposit is protected in accordance with the relevant prescribed requirements the landlord may not be able to serve notice on their tenant.
• If a tenant does breach the notice provisions contained within their tenancy agreement for example, by vacating the property early and in breach of their legal obligations to pay rent until the notice period elapses, they will be financially liable for the rent during that period.
Notice Period Management Tips
In order to fully assist a landlord or tenant it is important for an Adviser to consider the impact of the termination notice period required under the new (which is not normally referred to as the old but") tenancy agreement.
It is also important to try and avoid what is quite a common misunderstanding, that a Tenant’s notice takes effect at the end of the month. If a Tenant, for example, is intending to provide the requisite one month’s notice on a residential tenancy, on the 2nd of the month, it is naïve and a matter of concern if the Tenant should be told that the notice will operate to end the tenancy at the end of that month. As the calculation above demonstrates, where notice is given on a date other than the first of the month, the tenancy ends at a much earlier date.
For instance:
Notice expires at midnight on 6th of the following month.
Notice will expire at midnight on 14th of the following month.
Notice will expire at midnight on 10th of the following month .
Practical tips and advice
Although the above calculations apply at the basic administrative level, managing notice periods and planning for the end of a tenancy (and dealing with a change of tenant) can be challenging for a landlord or an estate agent who may be acting in a let only capacity:
Consequently, it is often advisable for a landlord to provide a reminder to their Tenant that notice must be given before the deadline, which may be linked to a payment of rent (which is usually paid on the same day of each month).
Another practical tip is for a landlord and the Tenant to discuss any issues affecting the Tenant which may be adversely impacted at the end of the tenancy, or during the notice period, such as whether they need to give any instruction to their utility companies about the intention to end the tenancy. In addition, the parties may wish to discuss the timescale for the property to be vacated to ensure that it fits within the time frame an estate agent may have for viewings.