Ending it all. Or not.

A question on tenant’s notice to quit, to keep minds occupied during the silly season.

Fareham BC v Miller [2013] EWCA Civ 159. (our report here) states in no uncertain terms that the common law position is that a landlord’s notice to quit is irrevocable once served.

30. As a matter of law it was impossible for the Council to revoke the notice to quit. Once served it was effective to determine the tenancy according it its terms. Even if the Council had made an irrevocable decision not to rely on the notice the tenancy would still have come to an end: see Tayleur v Wildin (1868) LR 3 Ex 303. […]

Tayleur v Wildin concerned waiver of notice served by a landlord. The waiver took place before the expiry of the notice period. It states that the effect of the waiver/withdrawal is not that the tenancy continues but that a new tenancy arises as of the expiry date of the notice. This was upheld in Freeman v Evans [1922] 1 Ch. 36.

I have been told that this is the largely accepted position in commercial lets. Waiver/withdrawal of Notice creates a new tenancy from date of expiry of notice (similarly with waiver of notice served to exercise break clause). Eg see this note on the SDLT site (although that is saying SDLT would not be applied).

Now, what I had thought about tenant’s notice to quit is as per Defending Possession Proceedings (Luba QC, Gallagher etc.) at 2.26 of Seventh Edition, re tenant’s notice:

A valid notice to quit will end the tenancy on expiry.

Thus, it was of course possible for the landlord and tenant to agree to waive the notice prior to expiry and for the tenancy continue.

But the common law position set out in Fareham v Miller applies equally to tenant’s notice to quit as it does to landlord’s.

Per Kelly CB, Tayleur v Wildin:

But it is clear that, whether the notice to quit is given by the landlord or the tenant, the party to whom it is given is entitled to insist upon it, and it cannot be withdrawn without the consent of both. If that is so, then the consent of the parties makes a new agreement, and if there is a new agreement there is a new tenancy created to take effect at the expiration of the old tenancy. [our emphasis]

So, any waiver of tenant’s notice would give rise to a new tenancy on the date of expiry of the notice.

The impact of this could be significant, particularly on private tenancies. Any guarantor would fall away (precisely the issue in Tayleur). (Though would it be a ‘replacement tenancy’ for s.21(7) HA 1988 purposes, if an AST?). And after Superstrike, the deposit implications are obvious. For social tenants, RTB wouldn’t be affected (it is aggregate time) but previous rent arrears would not be collectable or ground gor possession, just a debt, and possibly succession rights would revive. I am sure there are plenty of other implications that I haven’t had time to think about.

Also obviously, this is the common law position, and would not affect statute – so an assured (or AS) tenancy would exist until eviction, regardless of landlord’s NTQ. But tenant’s NTQ seems to me to be a more problematic question, and still largely common law..

I have probably got something hideously wrong, or overlooked something, but no-one has yet pointed me to anything conclusive.


Posted in FLW article, Housing law - All, Possession and tagged .

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +


  1. All interesting stuff. But there is no minimum 6 month term on an AST. Merely a limitation on using a s21 notice until the tenancy or, if it is a replacement tenancy, the original tenancy, is 6 months old. A “replacement tenancy” is a tenancy that follows on from an AST and under which the L & T & the premises are the same. See ss (5) (6) and (7) of the amended s21.

  2. Giles I agree entirely.

    I think the position of the landlord serving the section 21 notice (not a notice to quit as section 5 prohibits a notice to quit) is perhaps one of the most interesting. In its latest form section 5 say tenancy ends on enforcement of the court order or some other action of the tenant. If the notice to quit agreement to revoke applies from the agreement is it not true to say that it is not the notice to quit that ended the tenancy but the surrender by operation of law when the new tenancy was agree (the agreement “you can stay” being the creation of a new tenancy)?

    On that basis is it not reasonable to presume the same would apply to the section 21? agreeing to revoke would be the agreement for a new tenancy (some other action on the part of the tenant in agreeing a new tenancy)?

    • No, this would have no effect on s.21 notice at all. That is statutory and this is about common law NTQ. In any event, s.21 notice doesn’t end the tenancy. It continues until eviction.

      • OK, I can see the difference between the notice to quit (ends tenancy) an section 21 (does not end tenancy), but I was interested in your comment that the renewal took place on the date the agreement to revoke the notice was made (IE quite possibly before the NTQ expired ending the tenancy). Essentially the new agreement took over before the NTQ had any effect (hence why I wondered if it might apply to the section 21 in the same logic.

        I don’t know of any cases around the point but was just interested.

  3. S21 is a complete red herring and I’m sorry I mentioned it here. It is not contractual. It merely allows the landlord to apply to the court for possession and for the court to make an order for possession provided that he jumps through the relevant hoops. The notice must end after any fixed term has ended and must otherwise be of at least 2 months ending at the end of a a tenancy period (ie twice the common-law period of one month for a monthly tenancy) but otherwise it is non-contractual. It doesn’t require L to issue proceedings and if he doesn’t the tenancy continues as before.

    Giles raised interesting contractual points on the withdrawal of notices to quit and I’ve just diverted attention from them. I’m sorry.

  4. Giles you don’t mention it but I presume it is fair to say you only end up with a new agreement if the notice served is valid. In other words, if a tenant served a 14 days notice to quit on a monthly rent then this would not create the regrant as the notice would not have ended the original tenancy?

  5. You are right: in the commercial sphere it has long been accepted that a break notice cannot be withdrawn once served (based on Tayleur v Wildin). Service of a break notice is like pulling the pin out of a grenade. It’s a process that cannot be stopped once started.

    One of the greatest concerns of a successor landlord (ie someone buying the property as an investment) is whether a break notice may have been served in the past and then waived, with the result that the lease under which the tenant is apparently occupying is not in fact the current lease. The greatest concern is, as you say, the loss of any guarantor. There used to be a concern that a tenancy that was an “old tenancy” (not a defined term actually) under the Landlord and Tenant (Covenants) Act 1995 might have been re-granted as a “new tenancy” under that Act, but that concern has largely disappeared since nearly all commercial leases are now “new tenancies”.

    • I do like the anaolgy of service of a break notice is like pulling the pin out of a grenade.

  6. It has never made sense why a Notice cannot be withdrawn at any time before expiration because the Notice does not come into effect until the expiration date.
    I wonder how the following is relevant?
    Davies v Bristow [1920] 3 K.B 428 Shearman J says: ‘A notice to quit can be withdrawn at any time before the date fixed for the termination of the tenancy’. Davies has been approved by the Court of Appeal in Clarke v Grant [1949] 1 All E.R 786.

    • Hmm. In Davies v Bristow, Lush J says:

      When once the notice is given and received the term automatically comes to an end upon the expiration of the notice, and the position is then precisely the same as it would be if the original lease had provided for the determination of the term on the date mentioned in the notice to quit. There is no room for any election by the landlord. The landlord and the tenant may agree that a new tenancy shall be created on the old terms as to rent, &c, and that is what, in effect, they do when they agree to treat the notice to quit as inoperative, or, to use the expression which is used so often – that they agree to waive the service of the notice to quit. The agreement for the new tenancy must be proved. It must be shown that the parties were ad idem as to the terms.

      This seems to sit with the Tayleur approach.

      Shearman J (in a brief concurring judgment) says:

      A notice to quit can be withdrawn or abandoned before the time fixed for the termination of the tenancy. After the time has expired the lease has come to an end, and a landlord can no more waive his notice to quit than he can waive the expiration of time. In my judgment, the “waiver of notice to quit” merely means that the parties have arrived at a new agreement, and that, like any other new agreement, must be proved either by conduct or by express writing in the usual way in which any agreement is proved.

      This is harder to reconcile. The line about withdrawal is, in the context of the Judgment, strictly obiter, though.

      Clarke v Grant has nothing on that point at all. It simply approves Davies in distinguishing waiver in forfeiture from the position on a notice to quit, nothing about withdrawal of notice.

      So the Shearman J line is interesting, but is obiter and seems to be per incuriam.

  7. actually, i was interested to know what was/is the non secure tenancy – Just to confirm it?
    Licence? Fixed Term agreement?
    presumably anything other than a statutory secure/assured (AST) tenancy, yes?

    • For landlord’s notice to quit, could be a non-secure tenancy, contractual tenancy, or anything outside the statutory provisions.

      But as far as tenant’s notice to quit goes, this would apply to just about any tenancy, to the extent that they are primarily governed by common law . So would apply to AST, assured, secure…

  8. interesting stuff, great for pondering time on the train

    [Glad you thought so, Jennifer, so you won’t mind that I have taken out the link to a certain ’boutique’ firm’s website and emailed the partners to complain about comment spam. NL]

  9. Pingback: Landlord Law Blog roundup from 12 August

  10. I am going through similar situation where I was served a notice to end tenancy (break clause before the completion of original contract). After receiving the notice the landlord’s agent withdrew it saying it was a mistake!

    I had made arrangements in the mean time and now checking where do I stand legally.

    • Norman,

      We can’t give advice on individual situations, I’m afraid. You would need someone to look at the nature of your tenancy, the kind of notice and its effect.

  11. What would the effect on this be with regard to the overlap in relation to a tenant acting as a trespasser by staying on beyond the expiry date of an NTQ?

    If a tenant serves and NTQ then asks to waive this notice, If the landlord agrees to waive the NTQ a new monthly periodic tenancy commences on the date the NTQ expired – but if the landlord does not concur then the withdrawal of the notice is not valid and the Tenant remains liable for mesne profits/double rent if remaining in the property after expiry of the NTQ until accepted termination of the tenancy by the landlord?

    • I don’t know what you mean by ‘accepted termination of tenancy by landlord’. But broadly yes, if tenant serves notice, cannot be unilaterally ‘withdrawn’ or waived.

      • Thank you Giles. I simply meant where the Tenant finally moves out and the Landlord effects full surrender by virtue of his actions or evicts the Tenant by court process.

  12. This is a really helpful article as I was just looking into the same thing.

    One query that I have that you may be able to answer is what would be the position of a secure tenant (ex Council) who has transferred over to a Registered Provider. Would they grant a new secure tenancy if consent is reached for the NTQ to be waived? Ordinarily secure tenancies can’t be granted by RP’s but I seem to recall an exception where the tenant immediately before the grant of a new tenancy was a secure tenant but I can’t find the statutory provision. Hope this makes sense! Thank you

  13. Are you aware of any statutory provision that provides that new secure tenancies can be granted by RP’s where the tenant was a secure tenant immediately before the granting of the new tenancy? I had thought this was the case but can’t seem to find where this comes from. Thank you.

  14. The statutory provision I am referring to is Section 35 (2)(b) Housing Act 1988. It seems to me that this allows RP’s to grant new secure agreements to tenants who were immediately before the grant already a secure tenant with the RP. So if a secure tenant serves a NTQ and the landlord subsequently consents to its withdrawal, do you agree that a new secure tenancy ought then to be created?

    • After another look, yes, that might do it. But hard to say ‘ought’. The HA would have a power to grant one. I’m not sure that an obligation to do so can be found in s.35(2)(b).

      • Yes I agree that there is no statutory obligation but I said ‘ought’ because your article says the new tenancy should be granted on the same terms. My feeling is that if the notice if withdrawn (with consent) perhaps it ought then to be a new secure agreement. A practical alternative is for the HA not to agree for the notice to be withdrawn but to agree to grant a new tenancy on expiry of the notice, such that the tenancy can take whatever form is chosen by the HA. Just a thought. Thanks for your time on this.

        • The ‘same terms’ wouldn’t necessarily extend to the type of tenure, but to terms like period, rent, obligations and so on. And frankly it makes no difference if the HA wait till expiry of the notice and then grant a new tenancy, or agree to waive the notice before it expires – the notice is irrevocable and takes effect either way.

    • Am I missing something? Isn’t it s35(4)(d) that is the relevant subsection here?

      The question is whether “immediately before” the new tenancy takes effect (by implication upon withdrawal of the notice to quit) the tenant is in law a secure tenant. If s/he is, then the effect of s35(4)(b) is that the prohibition (in s35(4)) on creation of a new secure tenancy is displaced, and a new secure tenancy comes into being as a result of the effect of the old law. If, however, the tenant is not a secure tenant at that time – if there is that old friend a “scintilla of time” between the expiry of the NTQ and the implied grant of the new tenancy – then the implied new tenancy cannot be a secure tenancy. I’m not sure there’s any room for a landlord to decide whether that new tenancy is secure or not. It either is, or is not, by operation of the relevant statute(s).

      • No, it is 35(2)(b) – as a housing association tenancy was a pre 1989 HA secure tenancy. The scintilla of time argument is by the by (and by the way, the new tenancy is at expiry of the NTQ, not at time of waiver) as it is precisely a grant of new tenancy and thus ending of the old one that the statute contemplates – is there a ‘scintilla’ on a transfer? If so, the statute renders it otiose.

      • Giles:

        There’s a reply of yours showing up in my email, but not yet on the site…

        The general point I was making is that it’s not a matter of choice on the part of the housing association landlord – the new tenancy either is, or isn’t, a secure tenancy dependent solely on the statutory overlay upon the commmon law position. I agree by the way that the grant implied by the waiver takes effect on expiry of the NTQ, not on the date of the waiver – clumsy wording on my part.

        While I was around when most of the relevant legislation took effect, it’s a *very* long time since I’ve had to look at it; but the general gist is that following the 1980 Act a tenancy granted by a registered housing association was both a secure tenancy for the purposes of security (s28(2)(b)), and a housing association tenancy for the purposes of rent control (Part VI of the Rent Act 1977).

        The Rent Acts had excluded tenants of registered housing associations from protection (s15(1) did the job in the 1977 Act) but gave them rent control (Part VI). The 1980 Act gave both HA and LA tenants security – as secure tenants – at the same time.

        • I disagree on the issue of choice. Both s.35(2) & (4) give a power to grant a new secure/HA tenancy – the usual situation in which it is used being a transfer to a tenancy of a new property with the same landlord. The scintilla argument – that a new tenancy on expiry of (waived) notice doesn’t mean ‘immediately before’ can’t really stand up, as the same would be true of absolutely any new tenancy. A transfer, for example, would mean surrender and fresh grant. So it looks to me as if s.32(2) and/or (4) would give a power to grant a new secure tenancy in those circumstances. But there is nothing in the statutory wording that makes it an obligation to do so.

          • I agree that there isn’t a scintilla between expiry of NTQ and the implied fresh grant; but have to disagree on choice. With the (explicit but partial – it was a choice of security or rent control) exception of (old-style) ASTs the landlord has never had the option when granting a residential tenancy of what statutory protection that tenancy has when granted. S/he grants the tenancy and the statute decides whether it has security of tenure.

            The other difficulty your argument faces is: in the absence of any other agreement between the parties the new tenancy arises on expiry of the NtQ by operation of law as a result of the agreed waiver of the NtQ. What flavour of tenancy arises on such a bare agreed waiver?

            In my view is must be (in these circumstances) a secure tenancy; s35(4) allows a secure tenancy to arise (and preserves the old law to this effect), and both the landlord and the tenant condition are satisfied. If that is the default position, then the usual rules about not being allowed to contract out of statutory security (or rent control) prevent the association changing from that default by imposing any contractual term to exclude security or rent control.

            The relevant wording used in s35 is, by the way, the same as that in s34; by your argument therefore a protected tenant rehoused by his landlord, say because of disrepair, will (now) become an AST (then it woudl have been an assured tenancy) if his landlord so chooses. I assure you that that was definitely not the general understanding when the 1988 Act came into force.

            • But 35(4) (or (35(2)) doesn’t require a secure tenancy to arise. It simply provides that one can be granted:

              “a tenancy or licence which is entered into on or after the commencement of this Act cannot be a secure tenancy unless— [etc…]”.

              If the Act said a tenancy entered into after commencement shall be a secure tenancy in these circs.. I would agree, but it doesn’t.

              On the s.34 point – First, there is no equivalent provision to s.34(3) in s.35(3), but I would have thought the same point arose – look at s.34(1)(c)(iii) – the grant of assured tenancy in place of a protected tenancy is expressly addressed as a possibility (in a ‘suitable alternative accommodation’ possession claim). If your argument was right, that would be otiose, as it would automatically be a protected tenancy. Of course, any sane protected tenant who the landlord was seeking to move would insist that it was agreed to be a new protected tenancy.

            • That said, I agree that the issue of what flavour of tenure of tenancy arises on a bare waiver of tenant’s NTQ is deeply unclear if not expressly addressed.

  15. Under the 1977 Act suitable alternative accommodation did not need to be provided by the landlord; indeed, a certificate by the LHA that it would provide some suitable accommodation by a date indicated in the certificate was suficient to satisfy the condition.

    To be suitable, any accommodation provided had either be protected or provide equivalent security to that afforded by protected tenancy; but if the new premises weren’t being provided by the original landlord, it wouldn’t be let “as a separate dwelling such that they will then be let on a protected tenancy” (Sch 15 Part IV para 4(1)(a)) – the opening words of s34 would apply. The Court therefore had to be given power in such circumstances to order that the alternative tenancy would take effect as a protected tenancy if it felt that an assured tenancy wouldn’t provide sufficient protection – which explains s34(1)(c).

    Ss34(2) and (3) simply convert a former PST on renewal into an AST; so no equivalent would be required in s35.

    Remember that the Rent Act 1977 wasn’t repealed by the Housing Act 1977; nor were then HA secure tenants deprived of their security. The wording appearing several times in ss35 and 35 – that a new tenancy “cannot be” a secure/protected/HA tenancy after the comencement of the Act – was intended to prevent new s/p/HA tenancies arising, but the exceptions were intended to preserve the position of those who had that status when the Act came into force.

    So you start with the question – would this have been a s/p/HA tenancy in the absence of the 1988 Act? If yes, then it either will be a s/p/HA, or it “cannot be”. Any disapplication of the “cannot be” formulation by the exceptions in ss34 and 35 throws you back to the prior legislation. There was and is no optional middle way.

    • You are relying on your view of the intention of the sections (though I agree that was probably the intention). But it is not the wording of either section. Neither ‘disapplies’ the ‘cannot be’ formulation, but they do create a limited power to grant such tenancies – there is no ‘will be’.

      Any general ‘fallback’ to the previous legislation is undermined by, for example, s.35(4)(f) or s.35(5) which specifically preserve elements of HA 1985 for the grant of secure tenancies and, in s.35(5) refers to the repeal of the landlord condition of s.80 HA 1985 by the 1988 Act. Note also the different wording at s.35(5), which expressly provides that HA 1985 provisions shall have effect, despite HA 1988 repeals, in the specified circumstances. That is very different wording to 35(2) and 35(4).

      • “Cannot be X unless” combined with the continued existence of legislation saying “will be X” is surely sufficient, where the “unless” clause applies?

        S35(4)(f) had the effect of extending of s35(4)(d) to situations where a formerly secure tenant bought leasehold or freehold interest in defective system built premises from a registered housing association and was entitled to have it repurchased (or a right of pre-emption existed). In plain English, the intended effect is that if the HA had sold you (as a secure tenant) a defective system-built property before the system was generally known to be defective you were entitled to have it repurchased and get your secure tenancy back.

        S35(5) means that when an RHA buys a private sector landlord’s interest in property let on a protected tenancy, the tenant gets a secure, not an assured tenancy.

        The 1988 repeal of the 1985 provisions listing HAs amongst those fulfilling the secure tenancy landlord condition did not apply where s35(4)(c)-(f) applied – Sch 18 para 4(b) – so we do go back to the old form of the section for those situations.

        • Yes, I understand the point of those provisions.

          But OK, schedule 18(4)(b) works – now I’ll accept your view. The exclusion of 35(4)(c)-(f) from the repeal of the landlord condition does it.

          Thanks, that was fun.

          • Ditto – and a reminder to me of what I always used to stress to trainees – broad brush approaches aren’t enough.

          • Sod’s law being what it is, the case on these provisions that was going to walk though your door tomorrow has now gone elsewhere.

            Oh, and the other half of “broad brush approaches aren’t enough” is – you have to know the statute.

  16. I have found this article and discussion very helpful but am still slightly puzzled about a new case that has just arisen, any help would be appreciated. I have an assured tenant who has a joint tenancy. The other joint tenant has given 28 days notice to quit. The departed joint tenant has then passed away prior to the expiry of the NTQ. My question is, does survivorship (to the remaining joint tenant) trump the NTQ or will the NTQ still end the tenancy when it expires given that both cases cited in the original article suggest that there is no way for the notice to be revoked without agreement of ‘all’ parties which would then result in a new tenancy being granted.

    • That is a good question. My first thought would be that the notice remains valid and the tenancy would determine at the expiry of the notice. The notice is not rescinded by the death of the notice-giver.

  17. If a landlord serves a section 21, then they decide that they no longer want to continue with it, how does the tenant stand if they want it to be honoured. For instance, a property is being sold, the tenant is struggling to pay the rent but has not fallen into arrears, the landlord serves a section 21, if the sale falls through. Could the landlord decide the section 21 no longer stood, would a new tenancy have to start, does the section 21 still stand and the tenant is able to leave.

    • A s.21 notice does not end the tenancy. So it makes no difference. The landlord can decide to bring possession proceedings based on the s.21 notice, or not. Or agree a new tenancy.

    • Mind you, if the s.21 was served, I’d say the tenant was entitled to leave on the expiry date if they wanted to. But the tenant could serve notice anyway for the end of the fixed term or after.

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