Some tenancies in the UK are ‘common law’ tenancies that aren’t governed by existing legislation. If you want to end such a tenancy, you will need a special form of eviction notice called a ‘notice to quit’,
Note: this article describes the eviction procedure for common law tenancies. For information on the eviction procedure for tenancies governed by the Housing Act 1988, see our pages on section 8 and section 21 eviction notices.
A term you might encounter when dealing with UK legislation is ‘common law’. This refers to a body of law formed by judicial precedent rather than written statute.
UK law is old indeed. In fact, some extant legislation goes back as far as the Middle Ages. And where there appears to be no law for something, courts adjudicate by reference to centuries of case law and legal custom. One example of this is the ‘common law tenancy’.
Most tenancies are assured or assured shorthold tenancies that come under the Housing Act 1988. Exceptions include:
- tenancies with a live-in landlord
- tenancies where the rent exceeds £25,000 per year (£100,000 in England)
- tenancies where the rent is less than £250 per year (£1,000 in Greater London)
- tenancies where no rent is payable at all
- holiday lets
What are the differences between assured and common law tenancies?
Most non-assured tenancies are common law tenancies. As non-statutory tenancies, they depend mainly on the terms in the tenancy agreement.
This does not mean that no legislation applies to common law tenancies. Common law tenants still benefit from the Protection from Eviction Act 1977 and the Unfair Terms in Consumer Contracts Regulations 1999. Other provisions, such as the landlords’ repairing covenant, still apply to common law tenancies.
But the Housing Acts that govern the majority of UK tenancies do not apply. Sections 8 and 21, the traditional routes to possession for a landlord, are invalid in the case of a common law tenancy. Instead, a landlord will need a notice to quit.
Notice to quit – evicting a common law tenant
Common law tenants have similar rights to statutory tenants, such as the right to quiet enjoyment and protection from illegal eviction. You still need a court order to evict a common law tenant against their will.
Beyond this, there are several differences:
- You can end the tenancy during the fixed term if your tenant breaches any of the terms of the tenancy. You aren’t restricted to the prescribed grounds listed in schedule 2 of the Housing Act 1988.
- When the fixed term expires, the tenancy ends due to ‘effluxion of time’. If you continue to accept rent from the tenant you will create a periodic tenancy, which you will need a notice to quit to terminate.
- If you do not accept any rent, you do not need a notice to quit. (It is still good practice to issue a notice, however.) If your tenant doesn’t leave, you can begin the repossession process through the courts.
- If your tenant lives, and share living facilities, with you or a member of your family, you don’t need to give them written notice.
What to include in a notice to quit
A valid notice to quit must be in writing and give at least four weeks’ notice. It must also include the following information outlined in the Notices to Quit etc. (Prescribed Information) Regulations 1988:
- If the tenant or licensee does not leave the dwelling, the landlord or licensor must get an order for possession from the court before the tenant or licensee can lawfully be evicted. The landlord or licensor cannot apply for such an order before the notice to quit or notice to determine has run out.
- A tenant or licensee who does not know if he has any right to remain in possession after a notice to quit or a to notice determine runs out can obtain advice from a solicitor. Help with all or part of the cost of legal advice and assistance may be available under the Legal Aid Scheme. He should also be able to obtain information from a Citizens' Advice Bureau, a Housing Aid Centre or a rent officer.
A notice to quit should include the following basic information:
- the tenant’s name and address
- the landlord’s name and address
- the address to which the tenancy and notice relate
- the date the notice should take effect, by which the tenant must vacate
- the date on which you sign the notice
The date that the notice to quit takes effect should be the last day of a rental period. If the tenant pays rent on the third day of every month, the notice to quit should end on the second. If the tenant pays rent every fourth Monday, the notice to quit should expire the preceding Sunday.
Only you or someone authorised to act on your behalf, such as a letting agent, may issue the notice to quit. If you serve it directly to the tenant, ask for their signature of receipt. If you post the notice, send it by recorded delivery and keep proof of postage.
Remember your responsibilities as a landlord
Though your common law tenant enjoys fewer of the protections afforded to statutory tenants, you still have a number of obligations to them. See our articles on landlord responsibilities for more information.