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Notices: Excluded occupiers

This content applies to England

Notice requirements for excluded occupiers.

Excluded tenancies or licences may be terminated by contractual notice or, where an agreement does not include information on ending the contract, by the common law principles relating to notices (served either by the landlord or the tenant). Common law rules are those that come from the decisions of judges in court cases, as opposed to rules laid down in legislation.

Excluded occupiers can lawfully be evicted without obtaining a possession order.

Notice from landlord

If a landlord wants an excluded occupier to leave, the steps s/he must take depend on whether the occupier has a fixed-term or periodic agreement, and whether or not there are contractual terms governing the notice procedure. Where the contract does not specify the procedure, then common law rules apply.

Periodic occupiers

Excluded tenant - the notice period at common law is one complete period of the tenancy, for example, a week's notice for a weekly tenancy.[1]

Excluded licensee - the landlord must give the occupier a reasonable period of time to leave the premises if the notice period is not set out in the licence agreement. This is referred to as 'reasonable notice', although in fact the notice takes immediate effect to end the licence. The licensee cannot be evicted until the notice period has expired. See below for what may constitute reasonable notice.

Any contractual term will generally override the common law rule on the period of notice for an excluded occupier, even if it is shorter than common law would suggest. However, for a licensee it is arguable that a contractual term that stipulates a shorter notice period than a court would consider 'reasonable' would be invalid.[2] In addition, where the period of notice is contained in a standard term - ie one that has not been individually negotiated - and is less than common law/reasonable notice would imply, it may be an unfair term under the Unfair Terms in Consumer Contracts Regulations 1999.[3]

Fixed-term occupiers

If the occupier has a fixed-term contract, s/he is entitled to remain in the premises during the fixed term and the landlord can only evict the occupier when the term has come to an end unless there is a break clause or forfeiture and re-entry clause in the agreement allowing her/him to give notice before the expiry of the fixed term.

Where all occupiers have no 'right to rent'

Where an assured tenancy, Rent Act protected tenancy or tenancy with basic protection has been converted to an excluded tenancy following a Home Office 'no right to rent' notice served on the landlord in respect of all the occupiers, the landlord must serve a minimum of 28 days' notice (on the prescribed form) to terminate the tenancy.[4] See the page Right to rent immigration checks for more information.

Where the occupier was already a periodic excluded tenant/licensee prior to the service of the Home Office notice the landlord can lawfully evict by following the normal rules for ending the occupation of periodic excluded occupiers. Where the occupier had a fixed-term excluded agreement from the start, the landlord may serve 28 days' notice on the prescribed form as above.

Notice from tenant/licensee

If an excluded occupier wants to leave, the steps s/he must take depend on what the agreement says, whether s/he has a periodic or fixed-term agreement, and whether s/he has a tenancy or a licence.[5]

Periodic occupiers

Excluded tenant - if the notice period is not set out in the contract (or if there is not a written contract), at common law an excluded tenant must give notice equivalent to her/his rental period.

Excluded licensee - in the absence of a contractual provision, 'reasonable' notice must be given.

Fixed-term occupiers

If the occupier (tenant or licensee) has a fixed-term agreement, unless there is a break clause allowing her/him to leave earlier than the the expiry of the fixed term, s/he has to remain until the end of the term. If the occupier leaves before the end of the fixed term, s/he is legally liable to pay the rent for the whole of the term.

Reasonable notice

What length of time constitutes 'reasonable notice' depends on the circumstances of each case. It may be measured in minutes, weeks, months or years.[6] For example, an unwanted visitor could be asked to leave immediately, so her/his reasonable notice would be measured in minutes.[7] In contrast, a notice period of two years was held to be reasonable where an occupier was asked to leave his ancestral home after occupying it for ten years.[8]

In a dispute, it will be up to the party receiving the notice to show that the period of notice was unreasonably short, however, it is likely that by the time the occupier has taken such a dispute to court the reasonable period would have accrued anyway.

Common law rules on valid notices

Common law rules require that:

  • a notice need not be in writing unless the agreement stipulates otherwise[9]
  • a notice should state with certainty when it expires[10]
  • for an excluded tenancy, the notice period from either tenant or landlord should be at least as long as the rental period[11]
  • in the case of a periodic excluded tenancy, notice must expire at the end of a current period of the tenancy.[12] Iin addition to giving the correct length of notice, the notice must expire on the correct day otherwise it is invalid and does not terminate the contractual tenancy.[13] The correct day is either at the end of the current weekly, monthly, yearly or otherwise period of the tenancy, or on the first day of the subsequent period. For example, a notice for a weekly tenancy beginning on Monday should be expressed to expire on Sunday, or the following Monday; a notice for a monthly tenancy beginning on 12 November should be expressed to expire on 11 or 12 of December. However, a saving clause such as 'or on such date, one [week/month/year] after the service of this notice' is capable of rendering the notice valid.[14]

Common law rules are generally overridden by contractually agreed terms.

Wales

The information on this page applies only to England. Go to Shelter Cymru for information relating to Wales.

[1] Doe d Peacock v Raffan (1806) 6 Esp 4.

[2] Minister of Health v Bellotti [1944] KB 298.

[3] see Sch.2(1)(g) Unfair Terms in Consumer Contracts Regulations 1999 SI 1999/2083.

[4] s.33D(3) Immigration Act 2014, inserted by s.40(2) Immigration Act 2016.

[5] Street v Mountford [1985] UKHL 4, Bruton v London & Quadrant Housing Trust [2000] 1 AC 406, HL.

[6] Gibson v Douglas [2016] EWCA Civ 1266.

[7] Robson v Hallett [1967] 2 QB 939.

[8] Parker v Parker [2003] EWHC 1846 (Ch).

[9] Timmins v Rowlinson (1765) 3 Burr 1603; Bird v Defonvielle (1846) 175 ER 171.

[10] Addis v Burrows [1948] 1 KB 444.

[11] Doe d Peacock v Raffan (1806) 6 Esp 4.

[12] Lemon v Lardeur [1946] KB 613. Note that a yearly tenancy can be terminated by giving six months' notice.

[13] Crane v Morris [1965] 1 WLR 1104; Harley v Calder (1989) 21 HLR 214; Newman v Slade [1962] 2 KB 328; Precious v Reedie [1924] 2 KB 149; Queen's Club Gardens Estates v Bignell [1924] 1 KB 117.

[14] Hussain v Bradford Community Housing Ltd and Kauser [2009] EWCA Civ 763.

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