This page is targeted at housing professionals. Our main site is at www.shelter.org.uk

Notice of seeking possession of a flexible tenancy

This content applies to England

The notice a landlord must serve on a flexible tenant before applying to the court for a possession order.

exclamationFrom 27 March 2020 to 20 September 2020, ongoing possession proceedings were suspended to protect tenants and homeowners from the impact of the coronavirus pandemic. See COVID-19 and housing for full details.

Possession on the expiry of the fixed-term

exclamationPlease note that between 26 March 2020 and 31 March 2021, the minimum notice period for flexible tenancies is extended. For more information about the appropriate minimum notice period, visit the Protection for tenants page in the Coronavirus (COVID-19) and housing section.

The landlord has the option of a mandatory right to possession on the expiry of the fixed term of a flexible tenancy.[1] To exercise this option the landlord must serve on the tenant both of the two notices below, and in the following order.

Notice of non renewal

This notice of non renewal must be in writing and of 'not less than six months'. It must set out the reasons for not granting a further tenancy and inform the tenant of her/his right of review.[2] As the legislation sets out no time frame, it is feasible that this notice can be served at any time before the expiry of the fixed term.

The tenant has 21 days from the date of service of the notice of non renewal to request a review.[3] It is not necessary for the review request to be in writing.

In carrying out the review, the landlord must specifically consider whether its decision not to renew the tenancy is consistent with any policy it has with regard to the renewal of flexible tenancies.

The landlord must notify the tenant, in writing, of its decision on review. If the review upholds the original decision, the tenant must be given reasons for the decision. The tenant must be notified of the review decision before the date on which possession proceedings may begin, ie before the date specified in the notice of seeking possession (see below).

There is no right for the tenant to appeal a decision on review. Any further legal challenge will have to be made by way of judicial review (see the Judicial review section for information on this).

Notice seeking possession

The notice of seeking possession (NSP) must be served on or before the date of expiry of the fixed-term of the tenancy.[4] The NSP must be of 'not less than two months' and in writing. There is no prescribed form.

For information about similar requirements for private registered providers of social housing (PRPSH) to give tenants, in addition to a section 21 notice, at least six month's notice that they will not be renewing a fixed-term tenancy granted on or after 1 April 2012 for a minimum period of two years see the page Section 21 notices.

Possession during the fixed-term

exclamationPlease note that between 26 March 2020 and 31 March 2021, the minimum notice period for flexible tenancies is extended. For more information about the appropriate minimum notice period, visit the Protection for tenants page in the Coronavirus (COVID-19) and housing section.

The local authority can recover possession during the fixed-term of a flexible tenancy by serving an NSP and by establishing any of the grounds for possession available against a periodic secure tenant if:

  • it serves the notice in the correct form - the prescribed form of the NSP is not the same as that served on periodic secure tenants[5]
  • there is a forfeiture or re-entry clause in the tenancy agreement.[6]

For more information about forfeiture see the page Repossession of leasehold property. It is arguable that the incorporation of a break clause in a tenancy agreements would rule out the need for a forfeiture clause. The matter is yet to be decided in the courts.

The rules governing the service of the NSP, including the content and length of notice period, are the same as for NSPs served on a periodic secure tenant. For more information see the page Notices: Secure tenancies.

Service

The landlord is not required to serve the notices in any particular way. In the event the tenant does not acknowledge service, the landlord must prove that the relevant notice was served on the tenant.

Section 196 of the Law of Property Act 1925 allows for valid service of notices to be made by registered post or recorded delivery, or personal delivery to the tenant's property, but only when the tenancy agreement explicitly states that service will be effective where it is done in accordance with section 196. Alternatively, the agreement can provide expressly for service by these methods.[7]

Wales

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

[1] s.107D Housing Act 1985, as inserted by s.154 Localism Act 2011.

[2] s.107D(3) Housing Act 1985, as inserted by s.154 Localism Act 2011.

[3] s.107E Housing Act 1985 as inserted by s.154 Localism Act 2011.

[4] s.107D(4) and (5) Housing Act 1985, as inserted by s.154 Localism Act 2011.

[5] reg 2(2) and Pt 2 of the Schedule, Secure Tenancies (Notices) Regulations 1987, SI 1987/755.

[6] s.82(3) Housing Act 1985; Croydon LBC v Kalonga [2020] EWHC 1353 (QB).

[7] Wandsworth LBC v Attwell (1995) 27 HLR 536, CA; s.196 Law of Property Act 1925, as amended by the Recorded Delivery Service Act 1962.

Back to top