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evlhmr
27-04-2008, 15:11 PM
We have lived in our rented flat for 3 years. The lease was up on 4 April 2008. On 17 March 2008 we were served with a Section 21 notice stating the landlord required possession of the property after 4 June 2008. We informed the Landlord's Agent that we would be looking for alternative flats immediately and asked them to pass this information on. We were told by the Agent that the Landlord would most likely be pleased if we left sooner as he was wanting to move back into the flat.

We have found a new flat and would like to move on 1 May 2008. We informed the Landlord's Agent of this and were told that we were unable to leave before the 4 June and if we did we would need to pay rent up until that date. As stated, the Landlord had been previously informed of our intention to find alternative flats immediately and he did not say at the time it was inconvenient. However since informing he we have found alternative accommodation and wish to move now he has responded saying it is not convenient for him as he can't move in sooner and he can't afford to have the flat empty for a month. Therefore we have to stay in the flat until that date.

Is this correct? We feel this is vastly unjust as we were not the ones that gave notice. We have now found another flat and are moving out as requested by the Landlord but will we really be liable for the extra month's rent? How on earth are we supposed to find somewhere to live that we can move in exactly on 4 June 2008? It just doesn't work like that! Do we need to cancel moving into our new flat and start searching again?

We are very upset by this and are already out of pocket enough by having to move so there is no way we can pay rent on two places at the same time.

What are our options?

Thanks very much.

agent46
27-04-2008, 15:28 PM
I'd bat it right back at them if I were you.




Without Prejudice

Dear Sirs,
Re: [address]

Further to our recent telephone converation.

We were extremely disappointed to be informed that your client will not release us from our tenancy earlier than the 4th June. As you are aware, we have now found somewhere else to live and would like to move out of [address] on [date]. We feel that your client is behaving in an unreasonable manner in holding us to the strict terms of the s.21 notice.

We should be grateful if you would inform your client that if he wishes to be inflexible in the exercising of his legal rights, then regrettably, we will do likewise and insist that he obtains a possession order before we will give up possession of the premises. We will of course continue to pay charges for use and occupation of the property at the same rate as the current rent.

If your client is willing to agree a compromise where the tenancy is surrendered on the [choose a date a bit less than halfway between 4th June and the date you wish to move], then we will not stand on our strict legal rights to remain beyond the 4th June.

This offer will remain open until 4pm on [date]. We look forward to hearing from you in writing/by email at your earliest convenience, but in any event before that date.

Yours faithfully,

Colincbayley
27-04-2008, 16:08 PM
If the tenancy agreement is outside of the fixed term, and the LL has served a S.21 notice, then you are free to leave at anytime you wish!
You do not have to wait until the notice expires, nor do you have to pay the rent up until the expiry of the notice.

A S.21 notice is a notice from the LL to the tenant to advise that the LL requires his/her property back by a certain date, not ON a certain date.

PaulF
27-04-2008, 17:52 PM
I'd bat it right back at them if I were you.




Without Prejudice

Dear Sirs,
Re: [address]

Further to our recent telephone converation.

We were extremely disappointed to be informed that your client will not release us from our tenancy earlier than the 4th June. As you are aware, we have now found somewhere else to live and would like to move out of [address] on [date]. We feel that your client is behaving in an unreasonable manner in holding us to the strict terms of the s.21 notice.

We should be grateful if you would inform your client that if he wishes to be inflexible in the exercising of his legal rights, then regrettably, we will do likewise and insist that he obtains a possession order before we will give up possession of the premises. We will of course continue to pay charges for use and occupation of the property at the same rate as the current rent.

If your client is willing to agree a compromise where the tenancy is surrendered on the [choose a date a bit less than halfway between 4th June and the date you wish to move], then we will not stand on our strict legal rights to remain beyond the 4th June.

This offer will remain open until 4pm on [date]. We look forward to hearing from you in writing/by email at your earliest convenience, but in any event before that date.

Yours faithfully,:eek: This letter belongs in the WPB as Colin has succinctly put it

caroline7758
27-04-2008, 18:43 PM
Another "so called agent"??

agent46
27-04-2008, 19:14 PM
If the tenancy agreement is outside of the fixed term, and the LL has served a S.21 notice, then you are free to leave at anytime you wish!


I must admit, I mustn't have read the OP properly - I was doing two things at the same time and I hadn't noticed (no pun intended) that the LL had served notice on the 27th March 2008.

However, playing Devil's Advocate for a moment - give me an argument to counter this.

(1) When a fixed term AST ends other than by the order of the court or by the surrender of the tenant (HA 1988 s.5(1)), then by virtue of HA 1988 s.5(3), it becomes a statutory periodic AST.

(2) This means that the tenant is currently in a statutory periodic tenancy running from the 5th of each month to the 4th of the next.

(3) The procedure for bringing a periodic AST to an end by the tenant is by service of notice to quit (PEA 1977 s.5).

(4) The tenant has not served (it seems) any such notice. Therefore, the statutory periodic tenancy is continuing, and by virtue of s.21(3) will continue until such time as the court makes an order (that section presupposes that statutory periodic tenancies are capable of surviving the service of a s.21(1)(b) notice).

I've just thrown that together in about 5 mins, so there may be a hole or two in the reasoning, but I'd be interested to hear the counter-argument (as opposed to just posting bare propositions without a supporting reasoning process). Reference to case law and statutory provisions would, naturally, be most helpful.

Anyone can join in.

Footnote: It seems the tenant may have a case for claiming the LL is estopped from relying on his strict rights because the agent appears to have stated that the LL "most likely wants the flat sooner etc" and the tenants acted to their detriment on this representation.

EDIT:
This letter belongs in the WPB as Colin has succinctly put it

Is that the best criticism you can level at me after 86 posts? Come on, with that string of impressive sounding letters after your name, I'd thought you might be able to do better than that. :rolleyes:

House
27-04-2008, 20:01 PM
I'm not sure why Colincbayley believes you can just leave after a sec 21 4a has been served. Until the tenancy comes to an end by either surrender, ntq, or a possession order then you can't just leave.

Agents point about the estoppel is interesting. If the tenant just moved out on the 1st May and argued a surrender I would be interested to see the outcome of er possibly rather expensive legal proceedings!

Just theorising for a moment but could a LL refuse a surrender after his sec 21 4a had expired. (let's say for instance he had a sale agreed few weeks after the 14 day possession order would expire and wanted the tenant to stay! I know it's v hard to predict dates in this example but I am just theorising!)

evlhmr
27-04-2008, 20:16 PM
Thanks very much for the responses so far, I really appreciate you taking the time to give me advice.

I understand that we can't just leave at any time, even after being served with a S21 notice - our main problem is with the fact that we informed the landlord (via the agent) that we would be looking for alternative accommodation immediately and therefore would most likely be moving prior to 4 June.

At that time no objection was stated, and like I said the agent gave the impression that the landlord most likely preferred that we left sooner.

If we had been told at the time that it didn't suit the landlord and we needed to stay until 4 June then we wouldn't have even started looking for other flats at such an early date and we wouldn't have arranged to move anywhere until closer to 4 June.

Nothing was in writing but it just seems a little unfair that the landlord can just change his mind like that (as the agent stated he has done). We TOLD him we would probably be leaving earlier and he had no issue with that - then we went ahead and tried to move earlier he has now stopped us from doing so and claims we must pay rent up until 4 June regardless.

Thanks again for your time and your advice, much appreciated.

agent46
27-04-2008, 20:31 PM
I'm not sure why Colincbayley believes you can just leave after a sec 21 4a has been served. Until the tenancy comes to an end by either surrender, ntq, or a possession order then you can't just leave.


I don't want to be obtuse, esepcially as you're one of the people on here that doesn't seem to have had his or her nose put out of joint by my arrival ;) but surely it'd be a s.21(1)(b) if it was served 8 days before the end of the fixed term?

evlhmr
27-04-2008, 20:38 PM
Don't want to get in the middle of anything...but just to confirm, yes it was a Section 21 (1) (b).

Thanks again :)

House
27-04-2008, 21:15 PM
Yup, teach me not to read the thread properly. Same reasoning though :)

House
27-04-2008, 21:17 PM
I don't want to be obtuse, esepcially as you're one of the people on here that doesn't seem to have had his or her nose put out of joint by my arrival but surely it'd be a s.21(1)(b) if it was served 8 days before the end of the fixed term?

Hehe it was 18 days before the end of the fixed term.

Partial revenge at least ;)

Ruth Less
27-04-2008, 22:42 PM
I understand that we can't just leave at any time, even after being served with a S21 notice

But you can! See the posts by Colincbayley and Paul_f above.

KaPe
27-04-2008, 23:18 PM
To answer agent46, surely a periodic tenancy wasn't created as the notice was served during the fixed term.

House
27-04-2008, 23:18 PM
I'm wondering why if it is a sec 21 1b that was served on March 17 did the LL give notice expiring after 4 June. By 'lease was up on 4th April' I'm presuming that means a fixed term AST. If the Landlord wanted his property back earlier than the 4th June why didn't he just date the notice for say May 18th. Sec 21 1b being just two months notice, it doesn't have to end of last day of period of tenancy that being 21 4a and as pointed out not what was served here :)

I'm guessing the LL got confused.

I have probably missed something but can't see what at the mo!

the poster could have moved out on the 4th but is now a statutory periodic tenant and as such I am of the opinion, like agent46, that there is therefore no automatic right to just leave without the LL's consent if no notice is given

House
27-04-2008, 23:23 PM
KaPe,

A statutory periodic tenancy is created however the sec 21 1 b notice served during the fixed term allows the landlord to apply to the courts for possession notwithstanding this fact.

21 Recovery of possession on expiry or termination of assured shorthold tenancy (1) Without prejudice to any right of the landlord under an assured shorthold tenancy to recover possession of the dwelling-house let on the tenancy in accordance with Chapter I above, on or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy, a court shall make an order for possession of the dwelling-house if it is satisfied—
(a) that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than a statutory periodic tenancy; and
(b) the landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than two months' notice stating that he requires possession of the dwelling-house.

KaPe
27-04-2008, 23:25 PM
Im sure as steps were taken to bring the tenancy to an end during the fixed term, then a periodic tenancy has not been created.

House
27-04-2008, 23:29 PM
Read 21 1a, especially this bit 'other than a statutory periodic tenancy'


Just because the landlord has given notice in the fixed term doesn't stop the fixed term becoming a statutory periodic. The law just means that the LL can rely on his notice given during the fixed term.

agent46
27-04-2008, 23:33 PM
I'm guessing the LL got confused.


As if that would ever happen....;)


To answer agent46, surely a periodic tenancy wasn't created as the notice was served during the fixed term.

Have another read of HA 1988 s.5(2) (my apologies - I mis-cited the provision as s.5(1) in my other post). HA 1988 s.5(2) provides (not verbatim) that unless the court has made a possession order, or the tenant has surrendered their tenancy (or has taken some other action - ie: served a notice to quit), then the fixed term tenancy automatically becomes an Statutory Periodic AST under s.5(3).


Im sure as steps were taken to bring the tenancy to an end during the fixed term, then a periodic tenancy has not been created.

But that is not what s.5(2) provides. A possession order, surrender or some other act on the part of the tenant is required. Clearly, mere service of a s.21 notice to expire at some point in the future does not suffice.

Also, have a look at s.21(3) as that subsection by negative inference clearly presupposes that a statutory periodic tenancy can survive during the period between service of a s.21(1)(b) notice during the fixed term and the court ordering possession after the fixed term has come to an end: verbatim - "Where a court makes an order for possession of a dwelling-house by virtue of subsection (1) above, any statutory periodic tenancy which has arisen on the coming to an end of the assured shorthold tenancy shall end..."

In other words, what happened in the OP's case is that the LL (correctly) served a s.21(1)(b) notice during the fixed term, but when the fixed term came to an end, the AST became a statutory periodic tenancy. That periodic tenancy is still continuing, and will continue until such time as the court makes an order for possession or the tenant surrenders their tenancy. It is settled law that a surrender requires mutuality on the part of the LL and the tenant - ie: the tenant cannot just unilaterally decide that the tenancy has come to an end by eg: returning the keys; see for example, IIRC, Laine v. Cadwaller and Cadwaller. The tenant cannot argue that the LL has offered them the opportunity to surrender at any point before the s.21 notice expires because that would be wholly inconsistent with the LL's clearly stated aim (as set out in the s.21 notice) to recover possession after 4th June.


Unless I can assist your Lordships further, those are my submissions and I'm going to bed.


In any event, as I've set out my arguments quite fully in my other post and in this one, lets see what Paul F and Colinbayley have to say further about the matter. As they attacked my point (esp Paul F, quite rudely) without supporting their positions with any legal reasoning, it's only fair to give them the chance to respond more fully.....

House
27-04-2008, 23:41 PM
Gah was just cut and pasting sec. 5(2) and seems you beat me to it, but as I went to the effort of copying it I'm going to paste it!


5 Security of tenure (1) An assured tenancy cannot be brought to an end by the landlord except by obtaining an order of the court in accordance with the following provisions of this Chapter or Chapter II below or, in the case of a fixed term tenancy which contains power for the landlord to determine the tenancy in certain circumstances, by the exercise of that power and, accordingly, the service by the landlord of a notice to quit shall be of no effect in relation to a periodic assured tenancy.
(2) If an assured tenancy which is a fixed term tenancy comes to an end otherwise than by virtue of—
(a) an order of the court, or
(b) a surrender or other action on the part of the tenant,
then, subject to section 7 and Chapter II below, the tenant shall be entitled to remain in possession of the dwelling-house let under that tenancy and, subject to subsection (4) below, his right to possession shall depend upon a periodic tenancy arising by virtue of this section.

agent46
28-04-2008, 14:42 PM
Have another read of HA 1988 s.5(2) (my apologies - I mis-cited the provision as s.5(1) in my other post). HA 1988 s.5(2) provides (not verbatim) that unless the court has made a possession order, or the tenant has surrendered their tenancy (or has taken some other action - ie: served a notice to quit), then the fixed term tenancy automatically becomes an Statutory Periodic AST under s.5(3).



But that is not what s.5(2) provides. A possession order, surrender or some other act on the part of the tenant is required. Clearly, mere service of a s.21 notice to expire at some point in the future does not suffice.

Also, have a look at s.21(3) as that subsection by negative inference clearly presupposes that a statutory periodic tenancy can survive during the period between service of a s.21(1)(b) notice during the fixed term and the court ordering possession after the fixed term has come to an end: verbatim - "Where a court makes an order for possession of a dwelling-house by virtue of subsection (1) above, any statutory periodic tenancy which has arisen on the coming to an end of the assured shorthold tenancy shall end..."

In other words, what happened in the OP's case is that the LL (correctly) served a s.21(1)(b) notice during the fixed term, but when the fixed term came to an end, the AST became a statutory periodic tenancy. That periodic tenancy is still continuing, and will continue until such time as the court makes an order for possession or the tenant surrenders their tenancy. It is settled law that a surrender requires mutuality on the part of the LL and the tenant - ie: the tenant cannot just unilaterally decide that the tenancy has come to an end by eg: returning the keys; see for example, IIRC, Laine v. Cadwaller and Cadwaller. The tenant cannot argue that the LL has offered them the opportunity to surrender at any point before the s.21 notice expires because that would be wholly inconsistent with the LL's clearly stated aim (as set out in the s.21 notice) to recover possession after 4th June.


Unless I can assist your Lordships further, those are my submissions and I'm going to bed.


In any event, as I've set out my arguments quite fully in my other post and in this one, lets see what Paul F and Colinbayley have to say further about the matter. As they attacked my point (esp Paul F, quite rudely) without supporting their positions with any legal reasoning, it's only fair to give them the chance to respond more fully.....


Any response yet?

fallenlord
29-04-2008, 10:48 AM
Evlhmr

Im afraid I will have to take the side of your landlord. Despite any verbal arrangement that you may have had, if your tenancy agreement requires a months notice to vacate during a SPT then you will have to adhere to it and the landlord doesn’t have to let you go early. That said, I know in previous threads some posters have said that when a S21 is served for a SP tenancy then tenants don’t have to give notice in return and they can just leave. Ive yet to see any legal justification/case law for this and in my view is that until the tenancy officially ends ALL clauses of the tenancy continue to be in effect – happy to be proved wrong though.

Agent46

Im sure PaulF is capable of justifying his comments and defending himself however surely recommending to a tenant to have their landlord take them to court can only be considered as bad advise…

agent46
29-04-2008, 11:09 AM
Agent46

Im sure PaulF is capable of justifying his comments and defending himself however surely recommending to a tenant to have their landlord take them to court can only be considered as bad advise…

Have another look.

It simply takes a negotiating position which reminds the LL of the tenant's ultimate remedy. There is little point negotiating from a position of weakness, or simply asking the LL to forgo his legal rights because he's a nice person (that is not negotiating, it is begging). For a negotiation to work properly, then everyone entering into the negotiations needs to have in their mind what negotiation trainers formally call the BATNA (best alternative to a negotiated agreement), in other words, "what will happen if we can't agree". The BATNA in this case for the LL to obtain a possession order and/or bailiff's warrant. I'm almost certain he would not want that and would be willing to agree to a reasonable compromise. Therefore, the letter simply states in colloquial terms, "Look mate, if you lot want to be stubborn about this, then so can we. As I'm sure you will agree, the best thing to do in the circumstances is for us to compromise."

Trust me. It's not the first time I've had to do this sort of thing.

DianeB
29-04-2008, 12:29 PM
In my opinion a landlord who gives two months notice and expects his tenants to stay in until the last day is a landlord who wants his cake as well as eat it.

When you give notice to a tenant, that tenant in turn has to find a new home (not just house) within that time span and no decent landlord can expect everybody else's plans to dovetail so neatly into his.

I would rather a tenant leave slightly early (and lose some rent money) rather than that same tenant outstay their welcome because they can't find somewhere else to live.

As I said, my opinion only!

fallenlord
29-04-2008, 18:39 PM
Have another look.

It simply takes a negotiating position which reminds the LL of the tenant's ultimate remedy. There is little point negotiating from a position of weakness, or simply asking the LL to forgo his legal rights because he's a nice person (that is not negotiating, it is begging). For a negotiation to work properly, then everyone entering into the negotiations needs to have in their mind what negotiation trainers formally call the BATNA (best alternative to a negotiated agreement), in other words, "what will happen if we can't agree". The BATNA in this case for the LL to obtain a possession order and/or bailiff's warrant. I'm almost certain he would not want that and would be willing to agree to a reasonable compromise. Therefore, the letter simply states in colloquial terms, "Look mate, if you lot want to be stubborn about this, then so can we. As I'm sure you will agree, the best thing to do in the circumstances is for us to compromise."

Trust me. It's not the first time I've had to do this sort of thing.

I understood your reasoning behind the approach, however like all high-gain senarios is comes with a high risk and such advise should be given with a serious warning attached - the consequences of court action against evlhmr would be considerable, not only financially but in terms of trying to convince future landlords/agents to accept someone whos been forced out by the courts. I apreciate this is a "what if" senario but I would not recommend a tenant who had to be evicted to a landlord regardless of the circumstances.

Hindsight is a wonderful thing, but the agent involved really should have been more proactive and confirmed in writing any acceptance made by the landlord to an early departure.

agent46
30-04-2008, 00:27 AM
I understood your reasoning behind the approach, however like all high-gain senarios is comes with a high risk and such advise should be given with a serious warning attached - the consequences of court action against evlhmr would be considerable, not only financially but in terms of trying to convince future landlords/agents to accept someone whos been forced out by the courts. .

Yes, I take your point about the reference issue. However, the costs awarded against her would not necessarily be considerable. Fixed costs in APP are quite modest.

Also, the tenant does not have to (or will probably even need to) carry things through to fruition as in all likeihood taking such a stance will probably be sufficient to make the LL aware that their position is not as secure and risk-free as they first imagined. In my view, time is short, so it is imperative that the LL is brought to the negotiating table asap in a more conciliatory frame of mind.

But who knows? Different people have differing approaches to negotiating these sort of things - it's all a matter of style and personal preference. IME, a bullish approach works quite well in these situations, but I'm prepared to accept that it could work the other way and just make the LL even more stubborn. Although if that's the case, the tenant hasn't really lost anything other than a bit of rapidly evaporating good will.

However, my approach is by no means the only one - horses for courses I reckon.

Ruth Less
01-05-2008, 00:41 AM
In any event, as I've set out my arguments quite fully in my other post and in this one, lets see what Paul F and Colinbayley have to say further about the matter. As they attacked my point (esp Paul F, quite rudely) without supporting their positions with any legal reasoning, it's only fair to give them the chance to respond more fully.....

Some previous discussion on the matter is here:

http://www.landlordzone.co.uk/forums/showpost.php?p=1353&postcount=23

I'd be interested to hear more from leagle bods present ... That argument seems reasonable to me :)

agent46
01-05-2008, 09:22 AM
Some previous discussion on the matter is here:

http://www.landlordzone.co.uk/forums/showpost.php?p=1353&postcount=23

I'd be interested to hear more from leagle bods present ... That argument seems reasonable to me :)

Thanks for posting that.

I've had a look at the post.

(1) Paul F's point about the tenant being able to walk away at any time because the LL has "asked him to leave" is flawed and fails to take into account the fact that a surrender of tenancy requires consensus ad idem (meeting of minds) between the LL and the tenant. In effect, Paul F's argument states that the s.21 notice amounts to an open-ended offer to surrender at any time of the tenant's choosing. However, this would be in direct conflict with the s.21 notice stating that the LL requires possession after a certain date (in OP's case, the 4th June). I have already anticipated and dealt with this argument in my reasoning (see my comments on surrender in the second of my posts linked below)

(2) It is true that the HA 1988 doesn't make the position particularly clear in one all embracing provision, however s.5(2), s.5(3) and s.21(3) (not to mention PEA 1977 s.5) taken together do in fact do so.

(3) Regrettably Paul F's post doesn't actually contain any other arguments that amount to much more than "My mate, who is a lawyer, told me, and so did some academics[sic]* down at the NAEA" Well, as I am well aware, despite our high regard for ourselves, lawyers are not infallible, and unless the point is so obvious that it is trite, our opinion on points of law should not be treated with the reverance of a Papal Bull.

In contrast, my posting goes into a fair amount of detail, sets out all the steps in my reasoning process and also cites statutory provisions and case law in support of my position. For reference, my detailed posts are here:
http://www.landlordzone.co.uk/forums/showpost.php?p=72730&postcount=6
and
http://www.landlordzone.co.uk/forums/showpost.php?p=72758&postcount=19


People can make their own minds up which form of advice they prefer.


* Are there in fact any academics at the NAEA/ARLA? If so, what are their qualifications? (I would take a guess at internal NAEA/ARLA certification of some sort). Anyway, IME, academics usually operate from a university, conducting research under the supervision of an eminent professor and also teaching undergraduates, and do not, generally, operate from a private body set up to represent the interests of an business.

attilathelandlord
01-05-2008, 13:48 PM
This point of law has nagged at me for sometime. I shall consult with Counsel & get their revered legal opinion.

My thoughts are this:

Yes, landlord must give two months notice. However, tenancy is periodic, which means it continues from month to month. Surely then, since rent is monthly (for example), whether the tenant likes it or not, they cannot split the rental period any smaller than this and they must pay up to the contractual end of any given month they remain in the property.

Will get back to you shortly.

agent46
01-05-2008, 14:18 PM
My thoughts are this:

Yes, landlord must give two months notice. However, tenancy is periodic, which means it continues from month to month. Surely then, since rent is monthly (for example), whether the tenant likes it or not, they cannot split the rental period any smaller than this and they must pay up to the contractual end of any given month they remain in the property.

.


That's now 3 times in 3 days you've agreed with me. :p

But it actually goes further than that - the tenants can't leave until they give NTQ and it expires. They can of course leave after the expiry of the s.21 for the reasons I've given elsewhere (surrendering tenancy).

Colincbayley
01-05-2008, 14:35 PM
That's now 3 times in 3 days you've agreed with me. :p

But it actually goes further than that - the tenants can't leave until they give NTQ and it expires. They can of course leave after the expiry of the s.21 for the reasons I've given elsewhere (surrendering tenancy).

Must admit, I've changed my position on this as well.

I spent the best part of a day searching on the internet trying to find out IF a tenant can leave before the end of the S.21 notice and I can't find anything that says they can unless they give the one months notice.

attilathelandlord
01-05-2008, 14:37 PM
3 times in a row? It must be love!


Have just conferred with m'Lud! Counsel states that strictly speaking, if the landlord gives 2 month's notice then tenant should pay up until the end of that notice period.

If a tenant issues counternotice, then that would override the S21 and the tenant could go a month (for example) earlier and just pay the rent until the end of his/her notice period (and departure).

Effectively, a tenancy continues until notice (from either side) kicks in and where a tenancy continues, rent must be paid. You can't legally split the rental period into a shorter period other than that stated on the contract.

Speaking personally, if I serve S21 and a tenant finds a place and goes earlier, I just pro-rata the rent up until the tenant leaves. Ditto if the tenant gives me notice.

jeffrey
01-05-2008, 14:42 PM
T can leave whenever he/she wants. L cannot prohibit this (except in Austrian cellars).
The only argument is re when T's liability for rent will cease.

agent46
01-05-2008, 14:43 PM
Counsel states that strictly speaking, if the landlord gives 2 month's notice then tenant should pay up until the end of that notice period.

If a tenant issues counternotice, then that would override the S21 and the tenant could go a month (for example) earlier and just pay the rent until the end of his/her notice period (and departure).

Effectively, a tenancy continues until notice (from either side) kicks in and where a tenancy continues, rent must be paid. You can't legally split the rental period into a shorter period other than that stated on the contract.


Yes, exactly.

The SPAST continues until possession order, surrender (which has to be mutual) or expiry of the tenant's NTQ (PEA 1977 s.5) ie: the tenant can't just up sticks and consider themselves relieved from liability whenever they feel like it just because the LL has served a s.21.

attilathelandlord
01-05-2008, 15:21 PM
We could go the cellar route if the blighters try and go early!

Ruth Less
02-05-2008, 00:24 AM
T can leave whenever he/she wants. L cannot prohibit this (except in Austrian cellars).
The only argument is re when T's liability for rent will cease.

When does T's liability for rent cease then in your opinion?

jeffrey
02-05-2008, 09:17 AM
When does T's liability for rent cease then in your opinion?

When the tenancy ends, either by:
a. effluxion of time (whether at end of fixed term or on expiry of Notice); or
b. surrender (whether by T handing-back to L which L accepts, or - impliedly- by L creating new tenancy).

agent46
03-05-2008, 09:52 AM
When the tenancy ends, either by:
a. effluxion of time (whether at end of fixed term or on expiry of Notice); or
b. surrender (whether by T handing-back to L which L accepts, or - impliedly- by L creating new tenancy).

....you forgot.

(c) Frustration (although IIRC there are no reported cases, the doctrine probably does apply)

(d) Repudiation (Hussein v. Mehlman)

starlettings
03-05-2008, 10:05 AM
T can leave whenever S/he wants.

This is how

1. Pack up
2. Go


They have now gone...Easy

jeffrey
04-05-2008, 19:41 PM
....you forgot.

(c) Frustration (although IIRC there are no reported cases, the doctrine probably does apply)

(d) Repudiation (Hussein v. Mehlman)

Yes, but I was answering Ruth Less's question rather than summarising how to end a lease.
For the full list, see http://www.landlordzone.co.uk/forums/showthread.php?t=9841.

agent46
04-05-2008, 20:30 PM
Yes, but I was answering Ruth Less's question rather than summarising how to end a lease.
For the full list, see http://www.landlordzone.co.uk/forums/showthread.php?t=9841.


not quite full - that list omits repudiation ;)

jeffrey
04-05-2008, 21:06 PM
not quite full - that list omits repudiation ;)

The case cited (Hussein v. Mehlman [1992] EW Misc. 1- see http://alpha.bailii.org/ew/cases/Misc/1992/1.html) is only a County Court decision. Really, 'repudiation' seems to be equivalent to frustration or surrender in this instance.

agent46
04-05-2008, 21:31 PM
The case cited (Hussein v. Mehlman [1992] EW Misc. 1- see http://alpha.bailii.org/ew/cases/Misc/1992/1.html) is only a County Court decision. Really, 'repudiation' seems to be equivalent to frustration or surrender in this instance.


True enough. I was just being picky.