Flexible tenancy notice of seeking possession

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

This content applies to England

Possession on the expiry of the fixed term

The landlord has the right to mandatory 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

  • notice seeking possession

Notice of non renewal

The notice of non renewal must:[2]

  • be in writing

  • give the tenant 'not less than six months'

  • set out the reasons for not granting a further tenancy

  • inform the tenant of their right of review

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. The High Court has held that the local authority has no discretion to accept a late review request.[4]

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, which is the date specified in the notice of seeking possession.

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.

Notice seeking possession (NSP)

The landlord must also serve a notice seeking possession (NSP). The NSP must be served on or before the date of expiry of the fixed-term of the tenancy.[5]

The NSP must be in writing and there is no prescribed form. It must give the tenant at least two months' notice.[6]

Possession during the fixed term

The local authority can recover possession during the fixed term of a flexible tenancy by serving a notice of seeking termination of tenancy and recovery of possession 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 notice is not the same as that served on periodic secure tenants[7]

  • there is a forfeiture or re-entry clause in the tenancy agreement that allows the landlord to recover possession during the fixed term[8]

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.

A flexible tenancy is a fixed-term secure tenancy. The rules governing the length and service of the notice are the same as for notices served on a periodic secure tenant.

The prescribed form was updated on 1 October 2021.[9]

Covid-19: temporary extension of notice periods for flexible tenants

Flexible tenants were entitled to longer notices between 26 March 2020 and 30 September 2021. [10]

Notice to end a flexible tenancy in the fixed term

A flexible tenancy is a fixed-term secure tenancy. For rules on extended minimum notice periods that applied during the fixed term, see the rules for secure tenants.

The prescribed notice form for flexible tenancies did not initially reflect the changes to the minimum notice periods that came into force on 1 June 2021. On 24 August 2021 the prescribed notice form was amended and the correct form was made available on gov.uk (Part II Notice of Seeking Termination of Tenancy and Recovery of Possession).[11] Flexible tenants who received a notice to end the fixed term between 1 June 2021 and 24 August 2021 should check whether the form used complied with the prescribed form requirements and correctly identified the minimum notice periods.

Notice to terminate a flexible tenancy after the fixed term ends

Between 26 March 2020 and 30 September 2021, the minimum notice periods for terminating a flexible tenancy outside of the fixed term were:[12]

  • four months for notices served between 1 June 2021 and 30 September 2021.

  • six months for notices served between 29 August 2020 and 31 May 2021.

  • three months for notices served between 26 March 2020 and 28 August 2020.

The 'Technical guidance on eviction notices' document which forms part of the updated government guidance on Covid-19 and renting for landlords, tenants and local authorities contains a table summarising the minimum notice requirements for each tenancy.

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.[13]

Last updated: 1 October 2021

Footnotes

  • [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]

    R (Kalonga) v Croydon LBC [2021] EWHC 2174 (Admin).

  • [5]

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

  • [6]

    s.107D(4) Housing Act 1985

  • [7]

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

  • [8]

    s.82(3) Housing Act 1985; Croydon LBC v Kalonga [2021] EWCA Civ 77.

  • [9]

    sch.1 The Coronavirus Act 2020 (Residential Tenancies and Notices) (Amendment and Suspension) (England) Regulations 2021 SI 2021/992.

  • [10]

    para 5 Sch 29 Coronavirus Act 2020, suspended by reg 2 The Coronavirus Act 2020 (Residential Tenancies and Notices) (Amendment and Suspension) (England) Regulations 2021 SI 2021/994.

  • [11]

    see The Secure Tenancies (Notices) (Amendment) and Suspension (Coronavirus) (England) Regulations 2021 SI 2021/946.

  • [12]

    para 5, Sch 29 Coronavirus Act 2020 as amended by reg 3(5) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 SI 2020/914 and reg 2(6) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) (No. 2) Regulations 2021 SI 2021/564; para 1(1)(b)(i) Sch 29 Coronavirus Act 202 as amended by reg 2(2) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2021 SI 2021/284 and reg 2(2) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) (No. 2) Regulations 2021 SI 2021/564; reg 3 The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) (No. 2) Regulations 2021 SI 2021/564.

  • [13]

    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.