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jase27
21-01-2009, 11:04 AM
If there is a monthly periodic AST and the landlord gave a s21 notice which ends on the last day of a rental period but gave 3 months notice, CAN the tenant still give 1 months notice to end the tenancy on the last day of a rental period?

jeffrey
21-01-2009, 11:09 AM
If there is a monthly periodic AST and the landlord gave a s21 notice which ends on the last day of a rental period but gave 3 months notice, CAN the tenant still give 1 months notice to end the tenancy on the last day of a rental period?
Yes. See http://www.landlordzone.co.uk/forums/showthread.php?t=6845.

jase27
21-01-2009, 11:15 AM
Thank you for your amazingly fast reply. Unfortunately the link was dead but I have asked admin if they can help!

jeffrey
21-01-2009, 11:21 AM
Thank you for your amazingly fast reply. Unfortunately the link was dead but I have asked admin if they can help!
Link does work- but it's a bit slow in loading.

Paul_f
21-01-2009, 15:42 PM
If there is a monthly periodic AST and the landlord gave a s21 notice which ends on the last day of a rental period but gave 3 months notice, CAN the tenant still give 1 months notice to end the tenancy on the last day of a rental period?Tenant can leave at the end of the current rental period without the necessity to serve Notice on the landlord if they so wish, and without further liability to rent thereafter.

mind the gap
21-01-2009, 15:57 PM
Tenant can leave at the end of the current rental period without the necessity to serve Notice on the landlord if they so wish, and without further liability to rent thereafter.

Is that correct?

You have said in previous posts that once a tenancy is periodic, 2 months notice must be given by L and one month's by T (both to end on a rent-due day). I don't think a T can just up sticks at the end of a month without notice, can he?

Paul_f
21-01-2009, 16:13 PM
The reason why I say this is because there is nothing with S.21 of the Housing Act to say the T is obliged to stay for the duration of the Notice period, only to the end of the current rental period; the L is constrained by the timescale in law, but not T. (This only applies to statutory period tenancies arising from an AST)

The T I would say has a common law right to leave the premises if they so wish before the expiry of the Notice (they may well have another property available to move into, and might miss out if they delayed, so would be unfairly penalised by not being allowed to take up new tenancy asap, and having liability for rent on 2 properties), and maintain that they could do so without any further liability to rent at the end of the current rental period for which they had paid in advance.

The L has the property returned to them, albeit earlier than they had perhaps wanted or expected, but the L must serve the minimum Notice of 2 months although I would say that if he could, he would have preferred to be able to do it sooner 9 times out of 10.

I feel there is no need for the T to serve any counter Notice as the L has asked for the premises to be returned to him, and the T has complied.

Will somebody who disagrees please tell me where it states the tenant must stay for 2+ months unless they serve a counter-notice? L has informed T he wants premises back; T says he will go at the end of current rental period. Why would tenant have further liability to rent for 1 or 2 months more? The S.21 has been complied with by T.

Lawcruncher
21-01-2009, 18:26 PM
This is a question that was puzzled over in another thread a while ago. After complicating the matter by bringing in a lot of irrelevancies I realised the answer was astonishingly straightforward.

First, one asks: "What was the position of a tenant on a residential perioidic tenancy before the HA 1988 came into force?" The answer to that is: "He had to serve a common law notice."

Secondly, one asks: "Is there anything in the HA 1988 that changes that?" The answer to that is: "No."

Thirdly, if one asks: "Is the tenant's position the same both before and after the HA 1988 came into force?" the answer must be: "Yes."

One can ask further: "What is the effect of a section 21 notice?". The answer to that, when you think about it, and even if you do not, is: "It has no effect at all except to put the tenant on notice that the landlord requires possession. A section 21 notice is no more than a statutory requirement to be complied with if the landlord wishes to bring an AST to an end on a no-fault basis. If the tenant gives no notice to quit the tenancy continues until a court order is obtained."

Further consideration shows that all this must, in the absence of statutory intervention, follow from one of the basic requirements of a tenancy, which is that when it starts the maximum period of its duration must be ascertainable. Whilst a periodic tenancy is in fact a single tenancy, it may for this purpose conveniently be considered to be a series of tenancies of equal length. This means that at any given moment the landlord knows the earliest date on which the tenant can end the tenancy by giving a notice to quit. If it were the case that, a section 21 notice having been served, the tenancy continued so long as the tenant remained in occupation, but came to an end if the tenant gives up occupation, then, at any given moment before the tenant left, the landlord would not know when the tenancy was going to end and that would mean that the tenancy was no tenancy at all when we all know it is!

Accordingly, a tenant on a periodic tenancy who wishes unilaterally to bring the tenancy to an end must serve a notice to quit irrespective of whether the landlord has served a section 21 notice.

None of this of course prevents the landlord and tenant from agreeing that the tenancy should end at any time. So, if the landlord serves a section 21 notice, the tenant tells the landlord he is off on a specific date (whether before, on or after the date specified in the section 21 notice) and the landlord says "Super!" the tenancy will end when the tenant goes as the parties have agreed a surrender by operation of law.

Ruth Less
22-01-2009, 01:10 AM
Accordingly, a tenant on a periodic tenancy who wishes unilaterally to bring the tenancy to an end must serve a notice to quit irrespective of whether the landlord has served a section 21 notice.

None of this of course prevents the landlord and tenant from agreeing that the tenancy should end at any time. So, if the landlord serves a section 21 notice, the tenant tells the landlord he is off on a specific date (whether before, on or after the date specified in the section 21 notice) and the landlord says "Super!" the tenancy will end when the tenant goes as the parties have agreed a surrender by operation of law.

So what happens in the case where T on receipt of the S21 gets stuck in to arrange moving and once he has a new place arranged tells the landlord he is off on the date specified in the section 21 notice and the landlord doesn't say super. If L says sorry mate I've changed my mind and if there isn't then time for T to serve counter notice are you saying T is liable for another months rent? I find that bizarre as T has complied with L's original request.

mind the gap
22-01-2009, 08:23 AM
This is a question that was puzzled over in another thread a while ago. After complicating the matter by bringing in a lot of irrelevancies I realised the answer was astonishingly straightforward.

...One can ask further: "What is the effect of a section 21 notice?". The answer to that, when you think about it, and even if you do not, is: "It has no effect at all except to put the tenant on notice that the landlord requires possession. A section 21 notice is no more than a statutory requirement to be complied with if the landlord wishes to bring an AST to an end on a no-fault basis. If the tenant gives no notice to quit the tenancy continues until a court order is obtained."

Further consideration shows that all this must, in the absence of statutory intervention, follow from one of the basic requirements of a tenancy, which is that when it starts the maximum period of its duration must be ascertainable. Whilst a periodic tenancy is in fact a single tenancy, it may for this purpose conveniently be considered to be a series of tenancies of equal length. This means that at any given moment the landlord knows the earliest date on which the tenant can end the tenancy by giving a notice to quit. If it were the case that, a section 21 notice having been served, the tenancy continued so long as the tenant remained in occupation, but came to an end if the tenant gives up occupation, then, at any given moment before the tenant left, the landlord would not know when the tenancy was going to end and that would mean that the tenancy was no tenancy at all when we all know it is!

Accordingly, a tenant on a periodic tenancy who wishes unilaterally to bring the tenancy to an end must serve a notice to quit irrespective of whether the landlord has served a section 21 notice.


I follow your argument and take it to mean that what Paul f has said in #7 of this thread is therefore not the case.

mind the gap
22-01-2009, 08:25 AM
So what happens in the case where T on receipt of the S21 gets stuck in to arrange moving and once he has a new place arranged tells the landlord he is off on the date specified in the section 21 notice and the landlord doesn't say super. If L says sorry mate I've changed my mind and if there isn't then time for T to serve counter notice are you saying T is liable for another months rent? I find that bizarre as T has complied with L's original request.

No, because a s21 notice is legally binding on L as well as T, unless T and L come to an alternative, mutually satisfactory agreement, surely?

jeffrey
22-01-2009, 10:35 AM
No, because a s21 notice is legally binding on L as well as T, unless T and L come to an alternative, mutually satisfactory agreement, surely?
Wrong! Section 21 Notices are headed, "Landlord's Notice of Intention to Apply for Possession- Assured Shorthold Tenancy". The wording goes on to warn that L intends to apply unless T has vacated by the due date. How do you derive that L is obliged to make an application, then?

mind the gap
22-01-2009, 10:51 AM
Wrong! Section 21 Notices are headed, "Landlord's Notice of Intention to Apply for Possession- Assured Shorthold Tenancy". The wording goes on to warn that L intends to apply unless T has vacated by the due date. How do you derive that L is obliged to make an application, then?

I did not mean that I think L is obliged to apply for possession; I meant that I was not aware that there is a mechanism by which he could withdraw an s21, once issued, without T's agreement. L cannot have it both ways; he cannot say 'Right, you have 2 months to leave after which I intend to seek possession'; T says 'OK then' and is about to move out, at which point L flounces a bit and says 'Actually, I was just joking. I didn't mean it. I want you to say, after all, and if you insist on moving out you'll have to give me a month's notice.'

Is T not entitled to say 'No, sod off'?

jeffrey
22-01-2009, 11:07 AM
I did not mean that I think L is obliged to apply for possession; I meant that I was not aware that there is a mechanism by which he could withdraw an s21, once issued, without T's agreement. L cannot have it both ways; he cannot say 'Right, you have 2 months to leave after which I intend to seek possession'; T says 'OK then' and is about to move out, at which point L flounces a bit and says 'Actually, I was just joking. I didn't mean it. I want you to say, after all, and if you insist on moving out you'll have to give me a month's notice.'

Is T not entitled to say 'No, sod off'?
OK, keep calm: but you did suggest that L is 'bound' by the Notice.
Why cannot L either:
a. not proceed to apply; or
b. confirm to T that no application will be made? Note: L so confirming might be 'bound' by representation if T relies on it to his/her detriment.

mind the gap
22-01-2009, 11:10 AM
OK, keep calm: but you did suggest that L is 'bound' by the Notice.
Why cannot L either:
a. not proceed to apply; or
b. confirm to T that no application will be made? Note: L so confirming might be 'bound' by representation if T relies on it to his/her detriment.

I am calm:) - quintessentially so ...but I would appreciate an explanation of the phrase I have underlined above, please?

(nb: By being 'bound' by the notice, yes, I did mean that once L issues it, I would assume that he can only revoke it with T's agreement. Which is what you might, or might not, have agreed, except that I don't know because I didn't fully understand your answer!).

jeffrey
22-01-2009, 11:11 AM
Equitable doctrine of Estoppel.

mind the gap
22-01-2009, 11:16 AM
Equitable doctrine of Estoppel.

Don't swear at me!

Lawcruncher
22-01-2009, 13:33 PM
So what happens in the case where T on receipt of the S21 gets stuck in to arrange moving and once he has a new place arranged tells the landlord he is off on the date specified in the section 21 notice and the landlord doesn't say super. If L says sorry mate I've changed my mind and if there isn't then time for T to serve counter notice are you saying T is liable for another months rent? I find that bizarre as T has complied with L's original request.

The problem is that a section 21 notice is potentially misleading. The fact is that a section 21 notice does not bring a tenancy to an end.

Lawcruncher
22-01-2009, 13:35 PM
I follow your argument and take it to mean that what Paul f has said in #7 of this thread is therefore not the case.

Correct. Correct. (I needed to say it twice as at least 10 characters are needed for a reply.)

Lawcruncher
22-01-2009, 13:42 PM
Why should a landlord want or need to withdraw a section 21 notice? It has no consequences for a landlord other than that it allows him to apply to the court for an order for posession.

I think it is important to get away from the idea not only that a section 21 notice is not a notice to quit, but also that it is anything like a notice to quit.

mind the gap
22-01-2009, 13:51 PM
Why should a landlord want or need to withdraw a section 21 notice? It has no consequences for a landlord other than that it allows him to apply to the court for an order for posession.

He might want to withdraw it if he changes his mind about his need or desire to gain possession. As discussed above this seems hardly fair on the tenant..

I think it is important to get away from the idea not only that a section 21 notice is not a notice to quit, but also that it is anything like a notice to quit.

I take your point, but pragmatically speaking the message it conveys to the tenant, (who, to be honest, is not too bothered about fine legal or semantic distinctions) is : I want my property back. You haven't done anything wrong, but I'd like you to move out. The tenancy is drawing to a close. Find somewhere else to live, please. Be out by...

Unless you think its implicit message is different?

Lawcruncher
22-01-2009, 20:23 PM
A landlord who does not after all want his property back (and let's not forget that many section 21 notices are "Sword of Damocles" notices) has no need to withdraw a section 21 notice. All that is required is not to follow it up.

As I said above, the problem is tenants misunderstand the effect and purpose of a section 21 notice and that they do is entirely understandable.

mind the gap
22-01-2009, 20:26 PM
A landlord who does not after all want his property back (and let's not forget that many section 21 notices are "Sword of Damocles" notices) has no need to withdraw a section 21 notice. All that is required is not to follow it up.

As I said above, the problem is tenants misunderstand the effect and purpose of a section 21 notice and that they do is entirely understandable.

Agreed, but he cannot then complain if (as in scenario discussed earlier in thread) T moves out all the same without observing the usual tenant's notice period.

Lawcruncher
22-01-2009, 20:58 PM
I agree he ought not to complain, but if my argument is right, he can.

mind the gap
22-01-2009, 21:04 PM
I agree he ought not to complain, but if my argument is right, he can.

Well then, he's a cussed blighter who deserves to be made to be in a pantomime. Or have porridge poured over him. And that's my final thought on the subject. (You'll be glad to hear).

Lawcruncher
22-01-2009, 21:09 PM
Nearly as many landlords as tenants are ignorant of the law, so perhaps it is not really all that much of an issue.

Preston
22-01-2009, 22:37 PM
So what happens in the case where T on receipt of the S21 gets stuck in to arrange moving and once he has a new place arranged tells the landlord he is off on the date specified in the section 21 notice and the landlord doesn't say super. If L says sorry mate I've changed my mind and if there isn't then time for T to serve counter notice are you saying T is liable for another months rent? I find that bizarre as T has complied with L's original request.


I agree he ought not to complain, but if my argument is right, he can.

Hi

Lawcruncher's argument is very interesting.

I can appreciate Ruth Less' scenario. In the case she describes, I could imagine a tenant using a defence of estoppel against a landlord who attempted to claim for rent beyond the tenant's date of departure. The section 21 notice does, after all, say that possession is "required" by the landlord. The possession hearing which might follow - and the tenant must surely be entitled to assume that it will - is a trial after all. Its purpose is to assess the merits of the landlord's claim and to consider any defence. Can it really be the case that the tenant is expected to wait until the trial has been completed, knowing that they have no defence and that they will almost certainly have costs to bear? In an extreme case, it would even be possible for the landlord to have a court date and/or order before a tenant's notice to quit became effective. (For example, a landlord might issue a section 21 expiring in the first week following the commencement of a monthly, statutory periodic assured tenancy. The tenant's notice to quit, issued in the first month of the periodic tenancy will not expire until the end of the second month.)

On the other hand, if Lawcruncher is mistaken, then a landlord who serves the "sword of damocles" style section 21 notice would effectively be running the risk that the tenant might depart at any time without further notice. And if this were the case, wouldn't defence solicitors have latched onto this in cases, where, for example, the tenant has "abandoned" the property but there has been no agreed surrender? The argument could be of considerable assistance in limiting the tenants liability to any rent for the period after their departure (provided of course a section 21 has been served).

I wonder if anyone knows of any case law on the issue?

Preston

Ruth Less
23-01-2009, 01:28 AM
Preston, I could kiss you! Thank you for setting out so clearly the dilemmas I see in all this.


I can appreciate Ruth Less' scenario. In the case she describes, I could imagine a tenant using a defence of estoppel against a landlord who attempted to claim for rent beyond the tenant's date of departure. The section 21 notice does, after all, say that possession is "required" by the landlord. The possession hearing which might follow - and the tenant must surely be entitled to assume that it will - is a trial after all. Its purpose is to assess the merits of the landlord's claim and to consider any defence. Can it really be the case that the tenant is expected to wait until the trial has been completed, knowing that they have no defence and that they will almost certainly have costs to bear? In an extreme case, it would even be possible for the landlord to have a court date and/or order before a tenant's notice to quit became effective. (For example, a landlord might issue a section 21 expiring in the first week following the commencement of a monthly, statutory periodic assured tenancy. The tenant's notice to quit, issued in the first month of the periodic tenancy will not expire until the end of the second month.)

I've been served an S21 and I can assure you the impression that I was required to leave (but not obliged to without a possession order etc.) was all too apparent as was the impression that if I didn't leave "on time" my references would not be too good. (Lost in court doesn't sit that well on a reference does it?).


On the other hand, if Lawcruncher is mistaken, then a landlord who serves the "sword of damocles" style section 21 notice would effectively be running the risk that the tenant might depart at any time without further notice. And if this were the case, wouldn't defence solicitors have latched onto this in cases, where, for example, the tenant has "abandoned" the property but there has been no agreed surrender? The argument could be of considerable assistance in limiting the tenants liability to any rent for the period after their departure (provided of course a section 21 has been served).

The tenant being able to depart at any time without further notice was the conclusion reached after many SoD discussions amongst the knowledgeable folks on this forum some years ago in the days before Jeffery and Lawcruncher (I tagged at least some of these Damocles if you wish to trawl the old posts and those should then give you earlier links but I'm not sure if the saved posts still go back that far, who remembers lawstudent ;)).

Perhaps the reason the tenant just leaving doesn't come up that much is that tenants haven't twigged it's a possibility. Or perhaps in court over abandonment no one realises there was an S21 if the tenant isn't there to say or produce it, the landlord is hardly going to declare it is he.

If I'd been charged for not providing tenant's notice when I left, due the the S21, I would have challenged it, but as it was the landlord was only too happy I left as he wished to sell.

It all seems a pig's ear to me. Someone get Marveen in here to clear this up once and for all before I go mad!

Mrs Jones
23-01-2009, 06:47 AM
I have gone back and read the original first posting and what it seems to be asking is - Landlord had given 3 months notice via s21, but since it is a periodic tenancy, can tenant just give the legal one month's notice to end on a rental day WITHIN that 3 months. I would have thought that the simple answer is "Yes"!

Preston
23-01-2009, 08:59 AM
I have gone back and read the original first posting and what it seems to be asking is - Landlord had given 3 months notice via s21, but since it is a periodic tenancy, can tenant just give the legal one month's notice to end on a rental day WITHIN that 3 months. I would have thought that the simple answer is "Yes"!

Hi

Sorry, yes, I agree with you. I was just dealing with one of the later points.

Preston

Paul Gibbs
23-01-2009, 09:08 AM
Regarding a s21 notice - IIRC this is a notice of the landlords intention to seek possession and as long as the landlord does not explicitly or impliedly act contrary to that notice the LL may (at his election) follow through with eviction once the notice has expired.

IF the LL serves a s21 notice but then by his conduct acts contrary to it then that can invalidate the s21 notice. E.g. serves SoD @ start and then attempts to negotiate a new AST with the T before end of fixed term (in open correspondence)

IF LL serves notice and T vacates in accordance with the notice I agree estoppel will prevent a claim from the LL.

Lawcruncher
24-01-2009, 12:13 PM
Regarding a s21 notice - IIRC this is a notice of the landlords intention to seek possession and as long as the landlord does not explicitly or impliedly act contrary to that notice the LL may (at his election) follow through with eviction once the notice has expired.

IF the LL serves a s21 notice but then by his conduct acts contrary to it then that can invalidate the s21 notice. E.g. serves SoD @ start and then attempts to negotiate a new AST with the T before end of fixed term (in open correspondence)

I do not think this can be the case. Section 21 is quite clear. If the conditions set out have been satisfied, the court must make an order for possession.


IF LL serves notice and T vacates in accordance with the notice I agree estoppel will prevent a claim from the LL.

I would very much like it to be the case that some sort of estoppel arises, but I do not think it does.

"Vacates in accordance with the notice" is a bit problematic as the notice does not strictly require the tenant to vacate. If it did it would be a notice to quit and the Act quite clearly says that a landlord's notice to quit is of no effect. The Act cannot possibly require the service of a notice that is of no effect.

If it is argued that the service of a notice gives the tenant the right to leave that must involve some argument that the notice brings the tenant to an end in some way, and if it did that would undermine the protection afforded to tenants that an assured tenancy can only be brought to an end unilaterally by a landlord by a court order.

No one is arguing that the tenancy does not continue if the tenant remains in occupation and that is because the notice does not bring the tenancy to an end. If it does not bring the tenancy to an end then it does not bring the tenancy to an end even if the tenant vacates. The act would need specifically to say so for it to be the case.

If the service of a notice gives the tenant some sort of equitable right to bring the tenancy to an end, that is other than in accordance with the common law rules, then we need to ask at what point he can do it. Is it before the notice expires, the date the notice expires, or the date after the notice expires? I do not think it is clear. If it is not clear there is uncertainty and, as I said above, there must be certainty as to the maximum duration of a tenancy.

The whole problem is that a tenant may misinterpret a notice and attribute to it an effect that it does not have. The fact that he may do so is an insufficient reason to allow a tenant simply to walk away. It would be arguing that you were entitled to act on the basis that the law is what you think it is, not what it actually is.

Notwithstanding all the above, I think the position is different in the following cases:

First, where a landlord, after serving a notice, represents to the tenant that the notice has brought the tenancy to an end or demands possession.

Secondly, where a tenant says to a landlord: "I got your notice. So you want me to leave then?" and the landlord replies: "Yes, please."

In either case, or cases similar to them, I think the tenant is entitled to rely on what the landlord says and that the landlord will be estopped from denying that a surrender by operation of law has not taken place.

Preston
24-01-2009, 20:11 PM
If it is argued that the service of a notice gives the tenant the right to leave that must involve some argument that the notice brings the tenant to an end in some way ...

I don't think anyone has argued that the notice could bring the tenancy to an end.



Notwithstanding all the above, I think the position is different in the following cases:

First, where a landlord, after serving a notice, represents to the tenant that the notice has brought the tenancy to an end or demands possession.

Secondly, where a tenant says to a landlord: "I got your notice. So you want me to leave then?" and the landlord replies: "Yes, please."

In either case, or cases similar to them, I think the tenant is entitled to rely on what the landlord says and that the landlord will be estopped from denying that a surrender by operation of law has not taken place.

With regard to your second option above, what if it starts with the landlord saying "I'd like the house back, please would you leave?" and the tenant replies "ok then"?

If it doesn't matter who asks first, then isn't the tenant entitled to read a notice from the landlord which says "I require possession" as "please would you leave?". In effect, the argument would go, the landlord is offering to accept a surrender and the tenant, by moving out, is saying yes.

I wonder what the position would be in the case of an ordinary contractual tenancy if the landord told the tenant in writing that he or she required possession and asked the tenant to leave by a certain date and the tenant did so? If this would be effective as a surrender, why not also for an assured shorthold? Sure section 21 notices perform a specific statutory purpose in that they are a necessary precursor to an application for possession under the acclerated procedure. But there is no prescribed form for such a notice, so they come in many forms, generally do not contain a great deal of explanatory information and certainly do not make clear the point you are making - namely that the tenant must still give notice if he or she wishes to leave. I do wonder, then, why the tenant is not entitled to read the notice in its simplest sense, namely, as a request to leave?

As for the issue of certainty, most section 21s are quite clear; they give a date on or after which the landlord requires possession.

As I've mentioned before I am unsure on this issue and it would be really helpful if someone could come up with some relevant case law. In the absence of such precedents, though, I do wonder whether the Ruth Less position is actually the most likely.

Preston

Lawcruncher
24-01-2009, 20:40 PM
I do not think that, without more, a section 21 notice can be taken as an offer by the landlord to accept a surrender. There is certainly nothing in the Act that justifies such a view. Its purpose is clear - it is a prerequisite to applying for an order for possession. If it is an offer to surrender it can surely only be an offer to surrender on or possibly after the date or specified in it. We also have the problem that the landlord would need to know that the offer has been accepted other than simply by discovering that the tenant had up and left. As soon as landlord and tenant start talking to each other the opportunity arises for a surrender to be agreed.

Ruth Less
24-01-2009, 21:11 PM
I do not think that, without more, a section 21 notice can be taken as an offer by the landlord to accept a surrender. There is certainly nothing in the Act that justifies such a view. Its purpose is clear - it is a prerequisite to applying for an order for possession. If it is an offer to surrender it can surely only be an offer to surrender on or possibly after the date or specified in it.
Well a barrister quoted here, it's only a newspaper article about councils telling tenants to ignore the S21 but I thought these couple of points relevant:

'This is a very, very common practice employed by local authorities across the country,' says Mark Loveday, a barrister who specialises in property law at Tanfield Chambers in London. 'A Section 21 should be enough notice for most tenants to move out, but councils have the discretion to advise them to stay for longer and many are doing so.'

and later on the NLA citing government guidance:

The National Landlords Association says that 'gatekeeping' is not unusual. 'In some cases local authorities are advising tenants to stay until bailiffs throw them out. This would then make the tenants unintentionally homeless and qualify them for council assistance,' says Elizabeth Brogan, senior policy officer at the association.

'This whole practice is absolutely abhorrent. The government clearly does not agree with this practice. In its guidance to local authorities, it clearly states that where someone is in rented accommodation and there would be no reasonable defence for them to stay, "it is unlikely to be reasonable for the tenant to continue to occupy the accommodation beyond the date given in the Section 21 notice".'

Certainly gives me the impression that the S21 is asking T to leave although he doesn't have to yet as the whole thing is being critical of councils who force T to stay.

Full article: http://www.guardian.co.uk/money/2008/aug/31/debt.renting

Ruth Less
25-01-2009, 03:20 AM
If it is argued that the service of a notice gives the tenant the right to leave that must involve some argument that the notice brings the tenant to an end in some way, and if it did that would undermine the protection afforded to tenants that an assured tenancy can only be brought to an end unilaterally by a landlord by a court order.

There is also this from shelter:

"Your landlord must give you the correct written notice then get a possession order from the court before you will have to leave.

If you are an assured shorthold tenant and your landlord has followed the correct procedure there is no way you can avoid having to leave. If your landlord has to take you to court to force you to leave you will probably have to pay the landlord's court costs. Most tenants leave before the notice ends if they are able to."

http://england.shelter.org.uk/get_advice/advice_topics/eviction/eviction_of_private_tenants/the_rules_by_tenancy_type/assured_shorthold_tenants#0

So most tenants leave before the notice ends and no mention of a tenant needing to have to serve notice to do this. If you are right I wonder why there is no much material out there that's "wrong".

Lawcruncher
25-01-2009, 13:48 PM
The material posted by Ruth Less does not address the specific point I am dealing with. Rather it concentrates on such questions as whether a tenant should do the decent thing and leave if he gets a section 21 notice and whether LAs should be dastardly enough to inform tenants that they have no need to leave until an order for possession is made.

Let me approach the question from a different angle.

No one would I think argue that the service of a section 21 notice affects the ability of a tenant to serve a notice to quit. So it is possible for a tenant to serve a notice to quit that expires before the date for possession specified in a section 21 notice. If one accepts that then one accepts that the service of a section 21 notice does not interfere with the common law relating to the service of notices to quit. If the common law relating to the service of notices to quit is not affected by the service of a section 21 notice it must be the case that the service of a section 21 notice does not affect the need for a tenant to give a notice to quit to bring the tenancy to an end.

The problem is that, quite understandably and entirely reasonably, there is a feeling that if a landlord serves a section 21 notice the tenant ought to be able to walk away without giving notice. However, just because people think that something ought to be the case does not mean it is the case.

Preston
25-01-2009, 16:34 PM
However, just because people think that something ought to be the case does not mean it is the case.

Hi

Yes, but I don't think this is what the various contributors are saying. The argument, for me, seems to come down to whether a valid surrender can come about by a landlord serving a section 21 notice requiring possession and the tenant subsequently giving up possession; and of course whether the landlord could be estopped from denying the surrender.

In fact, I think we have all agreed that this "can" happen - Lawcruncher gave a few examples earlier. I guess the question is whether this could be the routine consequence. And in asnwering this question one of the problems, as I see it, is that there is no such thing as "a section 21 notice", because there is no prescribed form. A trawl of the internet will throw up several different styles and wordings.

As I have said earlier, I am also intrigued why this issue doesn't present itself more often in the courts. I think - though I cannot prove - that this is because landlord's generally accept the section 21 as a request for the tenant to leave and when requested, that's what most tenants do.

The exception, of course, is the sword of damocles style notice and I do wonder why the consequences have not been more fully tested, not for the landlord (because it is clear that the section 21 remains valid indefinitely, provided it is poperly drated and served in the first place) but for the tenant (it seems to raise the possibility that tenants may be able to up and leave without notice during statutory periodic tenancy).

Anyway, I guess the answer to the question I posed earlier is going to remain as "it depends" unless someone can come up with some more authority on the issue.

Preston

Ruth Less
25-01-2009, 23:39 PM
No one would I think argue that the service of a section 21 notice affects the ability of a tenant to serve a notice to quit. So it is possible for a tenant to serve a notice to quit that expires before the date for possession specified in a section 21 notice.

Unlikely, I'd expect in most cases the best the tenant can do is his own notice expiring on the same day as that of the S21. To achieve a date before that the tenant would have to be on a periodic tenancy or near the end of the fixed term and get his notice in by return of post if there is even time for that. How would a tenant know he could get the new place lined up that quickly? If the S21 is served early in fixed term to expire at the end of or soon after the fixed term, the tenant may have only restricted dates available before the date in the S21, probably just the end of the fixed term.


Secondly, where a tenant says to a landlord: "I got your notice. So you want me to leave then?" and the landlord replies: "Yes, please."

So what happens in the case where the landlord says No? T then stays on and next thing he gets notice from the courts that L is seeking possession yet T can't leave as he didn't serve notice? So all T has done is believe L's "No" and he is now facing having to serve his own notice whist waiting on being taken to court and having to pay L's court fees as T is bound to lose while at the same time T is trying to move house. Yet meanwhile despite this legislation having been in place 20 years not a whiff of this situation gets to Shelter or government guidance who all seem to think it hunky dory T can unilaterally leave by virtue of the S21?

Lawcruncher
26-01-2009, 10:52 AM
I shall formulate the question I am trying to answer in more precise terms:

If a landlord has served a section 21 notice can the tenant, without serving a notice to quit or agreeing a surrender, bring the tenancy to an end simply by vacating the premises?

I think the answer to that question is "No" and I have advanced various legal arguments as to why I think the answer is "No". If someone can refute my arguments I shall be more than happy as I am with the tenants on this. My arguments are not refuted by an appeal to the majority view, or perceived majority view.

The argument that if a tenant receives a section 21 notice and leaves all he is doing is complying with the landlord's request is seductive, but, for the reasons I have set out above, I do not think that it is legally tenable.

jeffrey
26-01-2009, 11:05 AM
Do you therefore think that T can leave (in those circumstances) on fixed-term expiry, without Notice to L?

Lawcruncher
26-01-2009, 11:25 AM
Do you therefore think that T can leave (in those circumstances) on fixed-term expiry, without Notice to L?

Yes.

The parties have agreed a fixed term. There is certainty as to when it ends.

If the tenant leaves before the fixed term expires section 5 (2) HA 1988 does not kick in and there is therefore no question of the tenant needing to serve a notice to quit.

jeffrey
26-01-2009, 11:42 AM
Yes.

The parties have agreed a fixed term. There is certainty as to when it ends.

If the tenant leaves before the fixed term expires section 5 (2) HA 1988 does not kick in and there is therefore no question of the tenant needing to serve a notice to quit.
Good. I agree, so that must be right!

Lawcruncher
26-01-2009, 12:08 PM
Good. I agree, so that must be right!

How can we both be wrong?

(Lawcruncher cowers awaiting thunderbolt from Zeus as divine retribution for his hubris.)

Ruth Less
26-01-2009, 18:17 PM
I shall formulate the question I am trying to answer in more precise terms:

If a landlord has served a section 21 notice can the tenant, without serving a notice to quit or agreeing a surrender, bring the tenancy to an end simply by vacating the premises?

I think the answer to that question is "No" and I have advanced various legal arguments as to why I think the answer is "No". If someone can refute my arguments I shall be more than happy as I am with the tenants on this. My arguments are not refuted by an appeal to the majority view, or perceived majority view.

The argument that if a tenant receives a section 21 notice and leaves all he is doing is complying with the landlord's request is seductive, but, for the reasons I have set out above, I do not think that it is legally tenable.
I do understand what you are saying. The problem I have is not being a legal bod I can't provide a legal answer. As a mere layman I simply point out that if the tenant was required to serve his own notice when acting upon an S21 then Shelter et al would be giving that advice.

It's not as if we are talking about some obscure event here, tenants leaving due the S21 is extremely common. So common that Shelter say most tenants leave before S21 notice ends.

Could it be that case law has since been established to change the way the original legislation is interpreted?

Perhaps we could turn your question round, are there cases where the tenant has been charged a months rent for leaving on the S21 "date" without having given their own notice?

I do realise you are with the tenants on this so I am not arguing with you personally, I think what we all really want is clarity. That's what I want anyway. After 20 odd years and goodness knows now many tenancies I'm surprised this is proving so difficult.

Lawcruncher
26-01-2009, 23:24 PM
After 20 odd years and goodness knows now many tenancies I'm surprised this is proving so difficult.

Several points:

1. There are many unresolved legal questions that lawyers argue about. They do not all get litigated.

2. If this particular point has not been litigated at High Court level or above so as to give guidance, I think it is because, at least in part, the sums involved (we are only likely to be talking about something like a month's rent and the most that can be under an AST is £2083.33 and in many cases it is going to be a lot less) do not warrant an appeal to the High Court if you lose in the County Court.

3. A similar question arising under Part ll of the Landlord and Tenant Act 1954 was not litigated until something like 40 years after the Act was passed and I remember thinking at the time that it was surprising that the point had not come up before.

4. I cannot explain why Shelter have not covered the point. Perhaps it has not occurred to them. Perhaps I should send them an email!

5. Until very recently I though the law was different. It was only when I sat down and thought it through that I came to the conclusion I have.

6. Lawyers are regularly surprised to find that the law is not what they thought it was. The thing about the law is that while a point can be argued, in the end the law is what the court says it is - even if we do not agree with the reasoning.

Preston
27-01-2009, 20:42 PM
I shall formulate the question I am trying to answer in more precise terms:

If a landlord has served a section 21 notice can the tenant, without serving a notice to quit or agreeing a surrender, bring the tenancy to an end simply by vacating the premises?

I think the answer to that question is "No" and I have advanced various legal arguments as to why I think the answer is "No". If someone can refute my arguments I shall be more than happy as I am with the tenants on this. My arguments are not refuted by an appeal to the majority view, or perceived majority view.

The argument that if a tenant receives a section 21 notice and leaves all he is doing is complying with the landlord's request is seductive, but, for the reasons I have set out above, I do not think that it is legally tenable.

I don't think that what you have said, particularly the highlighted bit, is what is being argued - or least not the argument I am putting forward.

I think it is accepted that a section 21 does not end a tenancy; likewise, a tenant leaving does not of itself end a tenancy. The question is does a section 21 telling the tenant that possession is required, followed by a tenant giving up possession, constitute a valid surrender?

There are many instances in which, in the absence of express agreement, the law will imply a surrender. The key is that the parties must behave in an unequivocal way which is inconsistent with the continuation of the existing tenancy. The basis of any surrender by operation of law is estoppel.

I agree with one of your later posts that not all difficult issues are litigated. In this instance it could be, as you suggest, that the sums of money involved are relatively small – although I don’t agree with you that it would necessarily be limited to one month, (if the tenant is required to give notice and leaves without doing so, it could very easily be a number of months before the landlord actually regains possession).

However, might the absence of litigation also be a result of consensus? In other words, do most landlords and tenants accept that a section 21 entitles the tenant to move out without giving any further notice? I accept, of course, that the majority view is not necessarily right (in fact it often isn’t). But the courts are entitled to give weight to an individual’s reasonable expectations and this is where I do wonder whether it is perfectly reasonable for a tenant to conclude that when a landlord tells him or her that possession is wanted, it really is!

Preston

mind the gap
27-01-2009, 20:47 PM
...I do wonder whether it is perfectly reasonable for a tenant to conclude that when a landlord tells him or her that possession is wanted, it really is! Preston

Now, there's a radical idea! Much too simple for LLZ?

Ruth Less
27-01-2009, 22:06 PM
But the courts are entitled to give weight to an individual’s reasonable expectations and this is where I do wonder whether it is perfectly reasonable for a tenant to conclude that when a landlord tells him or her that possession is wanted, it really is!

I am quite a simple soul and I do try to do the right thing. So when my landlord wrote to me saying he required possession of Apartment 1, Onslow Towers after ddmmyy, I moved out of said flat (he always called it an apartment but it was really a flat) on ddmmyy.

In fact I would find it quite hard not to obey such a direct written instruction, it never occurred to me not to. The fact that the bit of paper he sent said Section 21 at the top just meant it looked rather official and carried more weight in my eyes. It never occurred to me that he may not really want possession, or that I should even ask.

I did know he was thinking of selling but then he'd been doing that for a year and a half. But even if I didn't know that I'd have just thought oh well gotta go, pity I like it here but that's just a tenant's lot. No way would I have said see this letter that says you want possession does it mean you want possession, or that you don't want possession, and are you really sure? After all he wasn't stupid so why assume he can't write expressing what he requires?

I did know I could be a bad tenant and stay making him get a possession order but I didn't want to do that as I don't like being bad and I wanted shiny good references to get my paws on somewhere else nice to rent.

Of course several years reading landlordzone later I'm much better informed but less clear. Good innit :)

Ruth Less
27-01-2009, 23:07 PM
PS: If my landlord wrote me a letter saying he requires I keep chickens in the kitchen can he really complain if when he comes round chickens are actually in the kitchen regardless of the fact that if I don't fancy keeping the chicken indoors I don't have to? If not then why is this different to a request for possession?

lorenzo
19-03-2009, 14:06 PM
I don't think that what you have said, particularly the highlighted bit, is what is being argued - or least not the argument I am putting forward.

I think it is accepted that a section 21 does not end a tenancy; likewise, a tenant leaving does not of itself end a tenancy. The question is does a section 21 telling the tenant that possession is required, followed by a tenant giving up possession, constitute a valid surrender?

There are many instances in which, in the absence of express agreement, the law will imply a surrender. The key is that the parties must behave in an unequivocal way which is inconsistent with the continuation of the existing tenancy. The basis of any surrender by operation of law is estoppel.

I agree with one of your later posts that not all difficult issues are litigated. In this instance it could be, as you suggest, that the sums of money involved are relatively small – although I don’t agree with you that it would necessarily be limited to one month, (if the tenant is required to give notice and leaves without doing so, it could very easily be a number of months before the landlord actually regains possession).

However, might the absence of litigation also be a result of consensus? In other words, do most landlords and tenants accept that a section 21 entitles the tenant to move out without giving any further notice? I accept, of course, that the majority view is not necessarily right (in fact it often isn’t). But the courts are entitled to give weight to an individual’s reasonable expectations and this is where I do wonder whether it is perfectly reasonable for a tenant to conclude that when a landlord tells him or her that possession is wanted, it really is!

Preston

Any further comments on this point of Peston's?

agent46
20-03-2009, 10:50 AM
The reason why I say this is because there is nothing with S.21 of the Housing Act to say the T is obliged to stay for the duration of the Notice period, only to the end of the current rental period; the L is constrained by the timescale in law, but not T. (This only applies to statutory period tenancies arising from an AST)

But s.21 is not directed at the tenant! It is a provision detailing how a landlord must serve a notice.

Also, you seem to be manufacturing provisions out of thin air. Where, in s.21 or elsewhere in HA 2008 (or anywhere else for that matter), does it state that the T is obliged to stay "only to the end of the current rental period"? It states nothing of the sort.


The T I would say has a common law right to leave the premises if they so wish before the expiry of the Notice

If you believe there is a common law right to give up possession before the expiration of the notice, then please cite the case that supports your proposition (that is how the common law works). Taking the other threads on this subject into account, I think this is the 6th time of asking.


(they may well have another property available to move into, and might miss out if they delayed, so would be unfairly penalised by not being allowed to take up new tenancy asap, and having liability for rent on 2 properties), and maintain that they could do so without any further liability to rent at the end of the current rental period for which they had paid in advance.

That rambling passage is completely irrelevant to the legal position.



I feel there is no need for the T to serve any counter Notice as the L has asked for the premises to be returned to him, and the T has complied.

But, for the umpteenth time, the LL has merely notified the tenant that he requires possession of the property after a certain date. There is nothing in the notice which requests that the tenant gives up possession before that date.



Will somebody who disagrees please tell me where it states the tenant must stay for 2+ months unless they serve a counter-notice? L has informed T he wants premises back; T says he will go at the end of current rental period. Why would tenant have further liability to rent for 1 or 2 months more? The S.21 has been complied with by T.

As you well know, I have told you several times and so has Lawcruncher in other threads in which this subject has been done to death. We have also asked you for counter-arguments to support your position numerous times, but you have failed to come up with any, or any coherent points. However, in order to spare your blushes, I will not post the links to those threads in the public forum. If you would like to be reminded, then please PM me and I will forward them to you

jeffrey
20-03-2009, 10:58 AM
If you believe there is a common law right to give up possession before the expiration of the notice, then please cite the case that supports your proposition (that is how the common law works).
To be accurate:
a. T can always leave the let property, at any time; but
b. the Tenancy is not thereby ended unless the departure date = the expiry date of a fixed term AST.

agent46
20-03-2009, 11:27 AM
To be accurate:
a. T can always leave the let property, at any time; but
b. the Tenancy is not thereby ended unless the departure date = the expiry date of a fixed term AST.

Yes, I know, but it serves well enough for the purposes of the discussion.

I'm already frustrated enough at having to go through all these arguments yet again, so please don't ask me to write any more words than are absolutely necessary. ;)

lorenzo
20-03-2009, 13:38 PM
Can someone point out where in the Act does it deal with T's notice to quit please... I've looked but can't find it.

TIA

jeffrey
20-03-2009, 13:44 PM
Can someone point out where in the Act does it deal with T's notice to quit please... I've looked but can't find it.
It's not in the Act; an NtQ is under common-law rules.

lorenzo
20-03-2009, 14:09 PM
It's not in the Act; an NtQ is under common-law rules.

Ahh, no wonder I couldn't find it.

Thanks Jeffrey.

agent46
20-03-2009, 14:57 PM
It's not in the Act; an NtQ is under common-law rules.

"a" NTQ not "an" NTQ, surely?

jeffrey
22-03-2009, 22:34 PM
"a" NTQ not "an" NTQ, surely?
I did think about this conundrum!
'A Notice'.
'An N'.