Ending a common law tenancy

It is quite common for tenancy contracts to allow either party to terminate the tenancy before the full contract term. For example, the contract might say that the tenant must give the landlord 28 days' written notice, and vice versa.

Even if the contract does not provide for this, or if there is no written contract, the landlord and tenant can come to an agreement about ending the tenancy prematurely.

Even without any express agreement a renunciation of the tenancy may be inferred from conduct of the parties that plainly implies that it is their final intention that the tenancy should be terminated. The common example is where the tenant leaves the property in question. Where the tenant stops living in the accommodation before the expiry of the contract and the landlord re-lets it, this will be taken as implicit agreement to end the tenancy. However, until the landlord takes back possession (for example, by re-letting it) the tenant will remain liable for rent.

If no agreement between landlord and tenant is possible, the tenant can only terminate the tenancy by giving the landlord a notice to quit at the end of the contract's duration, that is, at the ish.

It may be difficult to determine when the contract ends if the contract was verbal. Facts that can help in determining the ish are:

• the date that the tenant took possession

• when rent was first paid and when it was payable thereafter

• any other statements made at the start of the lease.

The notice to quit must be in writing. The length of the notice is subject to the statutory absolute minimum duration of four weeks. [1] If the lease is for a year's duration or more, the minimum period is 40 days. [2]

A landlord may terminate a common law tenancy lease either when the contract comes to its expiry date (ish), or if the tenant breaches a condition contained in the lease. The condition must state that should the breach occur the landlord will seek possession before the contract has run its full course. This is called an irritancy clause.

The landlord, like the tenant, may terminate the tenancy at its expiry by serving a notice to quit on the tenant. Where the tenancy is of more than four months' duration, the minimum period of notice to be given is 40 clear days. [3] Other tenancies are subject to the absolute minimum of 28 clear days. [4]

The notice must be in writing, [5] but does not have any set form. It must be clear about when the tenant should leave and this must be the expiry date (ish) of the tenancy. It must also be clear in its description of the subjects. In City of Glasgow Council v Torrance the Sheriff held that 'a notice to quit had to be clear and explicit to the extent that the recipient knew exactly where he stood'. [6]

It is important to remember that the tenancy does not ordinarily come to an end when the contract runs its full term. The law presumes that the parties want the lease to automatically repeat ('tacitly relocate') unless one of them signals the contrary intention by serving a notice to quit.

Once the notice to quit comes into effect the contractual rights of the parties are at an end. If the landlord continues to accept rent then it is arguable that the lease has in fact continued under tacit relocation. This is because the actions of both landlord and tenant have continued in such a way that is inconsistent with the contract coming to an end, i.e. the tenant has continued to pay rent and occupy the premises and the landlord has continued to accept rent. [7]

It may be difficult to determine when the contract ends if, for example, the contract was verbal. Facts that can help in determining the ish are:

• the date that the tenant took possession

• when rent was first paid and when it was payable thereafter

• any other statements made at the start of the lease.

There is no defence to an action for recovery of possession where the contract has been terminated in the proper way. The reasons why the landlord wishes to recover possession are not important to the success of the action.

Landlords can include clauses in the lease stating that a breach of (a) certain condition(s), for example the requirement not to keep pets, may result in possession being sought. This is an 'irritancy clause'. If the tenant does not accept that there has been a breach, the landlord must ask the court to declare that an irritancy has occurred. Where the irritancy is admitted, the landlord must then apply for a court order enforcing the tenant's removal. This is called an action of (extraordinary) removing.

The landlord should give notice to the tenant to leave the accommodation. [8] This should be in writing and be clear and unambiguous in its terms. The period of notice should be at least four weeks. [9] Where the landlord asks the court to declare that the irritancy has occurred, it is a valid defence for the tenant to claim that the landlord has breached one of their own obligations as landlord, [10] such as the duty to ensure the property is not suffering from damp.

There is a common law rule [11] and a statutory rule [12] that tenants may only be evicted by way of a court order. A landlord evicting a tenant without a court order would be guilty of a criminal offence and liable to pay damages. [13]

Resident landlords are exempt from having to obtain a court order [14]. However, a resident landlord will have to fulfil any requirement, for example notice period, that is written into a tenancy agreement. 

Normally the only defences available against recovery of possession would be that the notice to quit was not served or that the landlord has, through their actions, departed from that notice. However, this may do little more than buy time for the tenant.

Where the landlord has sought to repossess based on an irritancy of the tenancy agreement the tenant may defend the action on the grounds that the irritancy did not occur.

If the landlord is a local authority, a tenant might be able to delay the eviction action by showing that the decision to recover possession is flawed on grounds of administrative law. Alternatively, s/he might be able to apply for a judicial review of the local authority's decision for the same reason. [15]

This is a tactic that may be used where someone has been deemed, for example, intentionally homeless and is now evicted from their temporary accommodation. It may be possible to seek judicial review of the decision on the homelessness status of the tenant and, while that separate action is proceeding, request a continuation of the eviction action until the judicial review action is concluded.

Similarly it is possible to lodge a complaint with the ombudsman about the local authority's decision, but this is unlikely to persuade a sheriff to delay any order regarding the eviction.