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England

Flexible tenancy notice of seeking possession

The notices 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]

The landlord must first serve a notice of non renewal, and then a notice of seeking possession. The landlord can then bring possession proceedings in court.

The court must make an outright possession order if:[2]

  • the fixed term has expired

  • no further tenancy has been granted

  • the local authority served the correct notices

Notice of non renewal

The notice of non renewal must:[3]

  • be in writing

  • give the tenant not less than six months notice

  • set out the reasons for not granting a further tenancy

  • inform the tenant of their right of review

The 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.[4] 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.[5]

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 on 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.

The court can refuse to grant possession if the local authority failed to carry out a review that was requested in time by the tenant, or if the decision on review is wrong in law.[6]

The tenant has no right to appeal the review decision. The tenant might be able to raise a public law defence based upon conventional judicial review grounds or a breach of their human rights, or a defence based on unlawful discrimination.

Notice seeking possession (NSP)

The landlord must also serve a notice of seeking possession. The notice of seeking possession must be served on or before the date of expiry of the fixed-term of the tenancy.[7]

The notice must be in writing. There is no prescribed form. It must give the tenant at least two months' notice.[8]

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 the tenancy and recovery of possession. The authority can rely on the same statutory grounds available against a periodic secure tenant.

The authority can only do this if the tenancy agreement has either:[9]

  • a forfeiture clause and the ground for possession is based on an alleged default by the tenant

  • a contractual break clause and the ground for possession does not relate to a default by the tenant

If the authority successfully relies on a forfeiture clause, it will first obtain a termination order.

The local authority must comply with the requirements of the Pre-action Protocol for Possession Cases by Social Landlords.

The landlord must serve the notice in the correct form. The prescribed form of the notice is not the same as the one served on periodic secure tenants.[10] A version of the prescribed form for termination and recovery is available on gov.uk.

Proceedings cannot normally start earlier than the date on which the tenancy could be ended by notice to quit. This is the longer of either four weeks or a complete period of the tenancy. The specified date must be either the first or last day of the period of the tenancy.[11]

Service of notices

The landlord must serve the notices on the tenant.

The Local Government Act 1972 allows a local authority to serve a notice authorised under any enactment by either:[12]

  • delivering it to the person

  • leaving it at their proper address

  • sending it by post to them at that address

The Court of Appeal found this applied to service of a notice of seeking possession on the mandatory ground for antisocial behaviour.[13] This is likely to apply to a notice served on a flexible tenant.

Section 196 of the Law of Property Act 1925 allows for valid service of a notice to be made by registered post or recorded delivery, or personal delivery to the tenant's property if the tenancy agreement explicitly states that service will be effective where it is done in accordance with section 196. A tenancy agreement might provide expressly for service by these methods.[14]

Covid-19: temporary extension of minimum notice periods

Flexible tenants were entitled to longer notices between 26 March 2020 and 30 September 2021. [15]

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).[16]

Between 26 March 2020 and 30 September 2021, the minimum notice periods for terminating a flexible tenancy outside of the fixed term were:[17]

  • 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 government published technical guidance on eviction notices. This guidance was withdrawn on 25 March 2022. It contains a table summarising the minimum notice requirements for tenancies during coronavirus restrictions.

Last updated: 6 April 2023

Footnotes

  • [1]

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

  • [2]

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

  • [3]

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

  • [4]

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

  • [5]

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

  • [6]

    s.107D(6) Housing Act 1985, as inserted by s.154 Localism Act 2011.

  • [7]

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

  • [8]

    s.107D(4) Housing Act 1985

  • [9]

    s.82 Housing Act 1985; Croydon London Borough Council v Kalonga [2022] UKSC 7.

  • [10]

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

  • [11]

    s.83 Housing Act 1985, s.5 Protection from Eviction Act 1977.

  • [12]

    s.233 Local Government Act 1972.

  • [13]

    Birmingham City Council v Bravington [2023] EWCA Civ 308.

  • [14]

    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.

  • [15]

    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.

  • [16]

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

  • [17]

    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.