We have a TT who is currently on a periodic tenancy (as his AST expired back in Mar '23). We served him a Section 21, which expires on 4th Nov. The TT has found another property and gave me a Notice to Quit (via email, which we acknowledged), which expires on 11th Oct. The TT has now explained that there are issues with the new place and will need to stay in our property past the 11th Oct. What rights do we have as a LL? Are we able to use the 1737 Act? Do we treat him as a trespasser from 12th Oct?
I’m getting a lot of mixed info from the internet and Landlord Action
If the tenants notice was valid or you formally accepted an invalid notice and assuming this is a single tenant, then his notice ends the tenancy. If you carry on accepting rent/consenting to him living there, then you are probably creating a new undocumented periodic tenancy. To protect yourself its probably best in all written communication to treat him as a tresspasser and reiterate that he must leave the property.
What else you do is up to you and I guess depends on your relationship with the tenant. Tenant moves being delayed is common and Ive informally allowed them to remain in the past. There are even cases where judges have allowed both parties to ignore a tenants notice, although legally its not supposed to be rescindable.
You can make a daily occupation charge, (mesne profits), which as you say can in theory at least be double the former rent under the Distress for Rent Act. This must be charged in arrears not advance or you risk confusing it with rent. You can also in theory exclude the tenant from the property by changing the locks whilst theyre out. There are risks with this approach as a harassment or even violence claim is still possible from the tenant. The Police might also insist on you re-admitting this former tenant and getting a court order. Most solicitors now seem to recommend a court order too.