The Importance of Giving a Valid Notice to Quit
In the widely reported US case of Sotondo vs. Sotondo frustrated parents finally succeeded in evicting their 30-year-old son from their home.
The parents had complained that their son did not pay rent or help around the house. They had tried unsuccessfully to evict him themselves, first by asking him to leave and then by giving him written notice, before enlisting the help of a lawyer to draft a formal eviction notice and taking the case to Court. At Court, Michael Sotondo argued that his parents had failed to give him sufficient notice to quit and so he should not be required to vacate.
Although the Judge praised his legal research and argument, the Judge found that his parents’ notice was valid and Michael was ordered to leave.
The case made headlines because parents wanting to evict their child is so unusual, but take away the family relationship and this is a really case of homeowners wanting to evict an unwanted lodger. This is a very common problem that people up and down the country face every day.
This case highlights both the personal and emotional difficulty of evicting someone from shared accommodation, as well as the importance of following the correct legal procedure and where required, serving a valid notice to quit.
Unfortunately, for such a common arrangement, English law in this area is notoriously complex. The law gives different levels of protection to renters depending upon the precise nature of the arrangement, and different steps are required to bring different arrangements to an end.
The degree of protection afforded to an individual depends upon two main factors:
1. Whether the renter has “exclusive occupation” of any part of accommodation; and
2. Whether the Landlord and the renter share occupation of any part of the accommodation.
“Exclusive Occupation” means that the renter has the right to exclude even the Landlord from the part of the accommodation that they rent. For example, where the renter rents a room in a house which even the Landlord cannot enter without the permission, then they have exclusive possession of that room. This is important because where the renter does have exclusive occupation of part of the accommodation (even if other parts are shared) the arrangement will be a tenancy as opposed to a more simple “licence”. Generally, tenancies are more difficult to end than licences.
“Shared Accommodation” exists where the Landlord and the renter share any part of the accommodation other than the stairs, halls or storage space. For example, a Landlord and renter living in a house divided into separate flats would not be sharing accommodation, but a Landlord and renter living in separate rooms, but sharing a bathroom, kitchen or living room would be. This distinction is important because shared accommodation is excluded from certain pieces of legislation which protect renters. Tenancies or Licences protected by this legislation are called “Protected” Tenancies or Licences, whereas tenancies or licences of shared accommodation are called “Excluded” Tenancies or Licences.
Where the arrangement is an Excluded Tenancy or Excluded Licence, the renter can be peacefully evicted from the accommodation (i.e. by changing the locks) once the agreement has been lawfully ended. If the Tenancy or Licence is Protected then you must obtain a Court Order before the renter can be evicted, even if the agreement has come to an end, otherwise you will be committing a criminal offence under the Protection from Eviction Act 1977.
Before, any kind of eviction is possible the arrangement must first be brought to an end. This can be even more complex. What is required also depends upon whether the original was for a fixed period of time or an open ended or “rolling” agreement.
Where a tenancy or licence was granted for a fixed term then it will come to an end on the last day of the agreed term and nothing further is required, though you will still need to obtain a Court Order to evict if the agreement is Protected and the renter refuses to leave.
Where the arrangement is open ended or rolling then a notice to quit is required.
Where the tenancy or licence is Protected, then the notice must be the longer of:
1. Four weeks, pursuant to the Protection from Eviction Act 1977; or
2. A complete period of the agreement (e.g. if the rent is calculated on a monthly basis and payable on the first day of each month then you must give at least one month’s notice and the notice must expire at the end of a month).
Where the arrangement is an Excluded Tenancy, then a notice to quit must be given and the length of notice must be equivalent to a complete period of the tenancy and expire at the end of a complete period of the tenancy.
Where the arrangement is an Excluded Licence, then in the absence of any agreement about the length of notice to be given, “reasonable notice” must be given. What is “reasonable” depends on all the circumstances of the particular case.
In some cases there are requirements about the form and content of the notice that must be given and the manner in which the notice must be served on the renter. Defects in the form or content of the notice, or its service on the renter, can render a notice invalid and delay the ability to evict or result in an unlawful eviction.
Ultimately, the law is designed to protect people from unlawful eviction and navigating the different requirements can be challenging even for the most experienced Landlord. The consequences of getting it wrong can be severe. The Sotondos were only able to evict their unwanted lodger after drafting a valid notice to quit with the help of their lawyer. The case highlights the importance of taking legal advice at the outset in these circumstances.
About the Author: Thomas is an Associate Solicitor in the Litigation and Dispute Resolution Team here at Keebles LLP. Thomas specialises in property related disputes, including taking back possession of residential and commercial property from unwanted lodgers, tenants and trespassers. If you are looking to take back possession of property, or have any other property related issue, you can contact Thomas on 0114 252 1472 or at Thomas.freeman@Keebles.comGet in touch