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digital
22-03-2009, 12:17 PM
I've issued the tenant with a Section 21 and it's due to take effect on the 9th of next month: 18 days time.

Other than reminding the tenant (who currently owes 4 months rent) that he will need to move himself, his family and all his belongings from the property before midnight on the 9th/10th, is there anything else I should do to make the process as painless and trouble free as possible?

TIA

TaxationPete
22-03-2009, 12:26 PM
What about the inspection of the property, contents check and key hand over. Regards Peter

digital
22-03-2009, 12:57 PM
Thanks Peter.

Is that before they've got everything out or after (when any deficiencies may well be more apparent)?

Beeber
22-03-2009, 13:20 PM
Why not S8? Has he found new accommodation?

Other than that query, hope for the best but prepare for the worst (namely, that the tenant doesn't leave and that you will have to gain possession through the courts).

A tenant in arrears in extremely unattractive to landlords and he will struggle to find accommodation to move into, or perhaps he will ask his local council for advice about his imminent homelessness and be instructed to remain in the property until the landlord gains a court order.

PaulF
22-03-2009, 16:37 PM
I have a strong feeling your tenant will still be there on 10th April.

mind the gap
22-03-2009, 16:57 PM
I have a strong feeling your tenant will still be there on 10th April.

For once I agree with you.

OP, why not issue a s 8 now by hand, (get evidence of service) then a fortnight later, apply for a possession order and payment order at the same time.

agent46
22-03-2009, 17:04 PM
I have a strong feeling your tenant will still be there on 10th April.

Through the mists of time Mystic Agent46 has a strong feeling you're not going to answer the arguments raised in the thread which discusses whether or not a tenant who has been served a s.21 notice can lawfully give up possession without serving a counter-notice.

digital
22-03-2009, 19:20 PM
Why not S8?
I previously served an S8 but then realised that, although the rent is/was paid monthly, the esate agents who found the tenant (actually, I did, but they still charged me) and provided the contract had written the rent as £xxxx *quarterly*. The tenant also made a payment of just over one month's rent after I had issued the notice. On that basis I assumed that the S8 would fail.

We have just got to the stage where a new S8 would be possible but, as I had issued an S21 at the same time as the S8 I believe that the already issued S21 would have the same effect as a new S8?


Has he found new accommodation?
No.

mind the gap
22-03-2009, 20:02 PM
The advantage of a s8 (I think) is that you can try to get some money out of him at the same time as the court order for possession. But the standard advice is to issue both as a belt and braces job.

Have you protected his deposit in a scheme?

lorenzo
22-03-2009, 20:24 PM
Through the mists of time Mystic Agent46 has a strong feeling you're not going to answer the arguments raised in the thread which discusses whether or not a tenant who has been served a s.21 notice can lawfully give up possession without serving a counter-notice.

Let's say that L has issued s21 during a periodic tenancy:


T moves out on expiry of S21.
L, who is of the opinion that T must serve NTQ to end tenancy, sues T for ongoing rent in lieu of notice.



Can anyone imagine a judge awarding against T?
Has there ever been an instance where this has actually happened?
Can someone please get voted in to parliament to fix this pig of a legislation?

agent46
22-03-2009, 20:43 PM
Let's say that L has issued s21 during a periodic tenancy:


T moves out on expiry of S21.
L, who is of the opinion that T must serve NTQ to end tenancy, sues T for ongoing rent in lieu of notice.


To avoid confusing OP it is probably best that you repost your question in the other thread.

However, that's not the issue to which I was referring. I was referring to the situation when a LL serves a s.21 notice but T gives up possession before the expiry of the said notice.

bunny
22-03-2009, 20:48 PM
This is a rather tricky move and I don't want to get flamed here but it has worked for me. I have removed a number of unwanted individuals I inherited and I haven't had to go to court once.

It was particularly attractive for the tenant when I agreed to return their bond/deposit if they vacated on an arranged date.

The deal was, they got the deposit in cash if they surrendered on the agreed date, the property was in the condition I last saw it (a dump but he hadn't taken a sledge hammer to it), it was cleared of his stuff, he surrendered his keys and signed my paperwork.

He complied with everything except clearing the place with his stuff and left EVERYTHING (I can't begin to describe) but it was far cheaper than court (it cost £190 probably for the next fix of drugs) but there were irregulaties preventing me from obtaining possession any time soon through the courts which were nothing to do with me. The tenant didn't know about the irregulaties but it worked for me and I thank myself lucky that it did.

Is this an option for you? I'd use this method again if a tenant was hanging on and needed a deposit to be able to move on somewhere else. However, it would need to be handled carefeully.

lorenzo
22-03-2009, 20:54 PM
To avoid confusing OP it is probably best that you repost your question in the other thread.

However, that's not the issue to which I was referring. I was referring to the situation when a LL serves a s.21 notice but T gives up possession before the expiry of the said notice.
I've tried in the past, but it never seems to get answered. :confused:

Preston
22-03-2009, 21:10 PM
Through the mists of time Mystic Agent46 has a strong feeling you're not going to answer the arguments raised in the thread which discusses whether or not a tenant who has been served a s.21 notice can lawfully give up possession without serving a counter-notice.

Hi

I wondered in other threads whether a section 21 notice might differ in its effect from other types of notice (such as a notice of intention to seek possession of a secure tenancy) because, although it does not of itself determine the tenancy, it is a clear statement on the part of the landlord that possession is "required" by a certain date. It might be considered reasonable for a tenant to act on this "requirement" - namely to give up possession - and that in these circumstances the landlord might subsequently be estopped from claiming a continuation of the tenancy after the date stated in the notice.

I certainly think that many landlords, tenants (and County Courts for that matter) act on this basis, although I am not aware of a specific authority to support the argument.

A bit of along shot possibly, but do you think that Aylward v Fawaz might be helpful? As you know, in that case, the Court found that the section 21 notice "was clear and unambiguous. It indicated in terms that possession of the premises was required" and it was held that the notice was sufficient to activate a break clause in a fixed term tenancy. The case might be seen to give weight to the argument that a section 21 notice is more than a simple administrative precursor to possession action, but is rather a real statement of the landlord's wishes with regard to the tenancy - namely that it should end.

Preston

digital
22-03-2009, 21:45 PM
Have you protected his deposit in a scheme?

Yes. Unlike the tenant, and despite the problems caused by the numpties I employed to find a tenant, I've tried hard to do things as they should be done...

It would seem from the responses so far (and my thanks to all of you) there's nothing formal I can do until the said date when he and his family either leave or I have to ask the Court to get them to leave?

If that's the case, is there anything I should do or understand about the Court process in the meantime? Forms? Costs? Timing?

agent46
22-03-2009, 22:01 PM
Hi
..... it is a clear statement on the part of the landlord that possession is "required" by a certain date.

Just to clear up a (probably inadvertant) error - a s.21(4)(a) notice states that possession is required after not by a certain date.



It might be considered reasonable for a tenant to act on this "requirement" - namely to give up possession - and that in these circumstances the landlord might subsequently be estopped from claiming a continuation of the tenancy after the date stated in the notice. (my emphasis)

Yes, that's what I think. I believe Lawcruncher and I came to that conclusion in a discussion we had on the subject a few months ago and before you joined LLZ.



A bit of along shot possibly, but do you think that Aylward v Fawaz might be helpful? As you know, in that case, the Court found that the section 21 notice "was clear and unambiguous. It indicated in terms that possession of the premises was required" and it was held that the notice was sufficient to activate a break clause in a fixed term tenancy. The case might be seen to give weight to the argument that a section 21 notice is more than a simple administrative precursor to possession action, but is rather a real statement of the landlord's wishes with regard to the tenancy - namely that it should end.

Preston

I know the case you mean, but I don't think that it can be stretched quite as far as you wish. A break clause notice can end a fixed term tenancy because by s.5(1) it would count as an "exercise of a power to determine a fixed term tenancy". Therefore, whilst a s.21 notice can act as a break clause notice, it is the break clause notice which terminates the tenancy, not the s.21 notice itself.

Also, the rules for periodic tenancies are different to those in fixed term tenancies, and s.5(2) makes it clear that the only way a periodic tenancy ends is by order of the court, or by surrender, or some other act by the tenant (ie: service of their own valid NTQ, and, see below).

In short, I prefer the analysis that once a s.21 has expired, the LL would be estopped from requiring the T to serve a NTQ. That scenario would also comply with the "some other act of the tenant" wording of s.5(2).

Just for the avoidance of doubt, this estoppel would only arise after the expiration of the s.21 notice. If the tenant wishes to give up possession prior to that date, then they must serve their own NTQ.



I've tried in the past, but it never seems to get answered.

I'm pretty sure someone posted the answer in the current live thread on the issue, and also, either I or Lawcruncher definitely came to the "estoppel" conclusion in the older thread to which I have referred above. However, Preston has again flagged up the estoppel point in his post just above this one, which is (or are all) the answer to the question you asked. :)

lorenzo
22-03-2009, 22:39 PM
I'm pretty sure someone posted the answer in the current live thread on the issue, and also, either I or Lawcruncher definitely came to the "estoppel" conclusion in the older thread to which I have referred above. However, Preston has again flagged up the estoppel point in his post just above this one, which is (or are all) the answer to the question you asked. :)

I guess I have a little trouble with Legalese.

Estoppel?

I am not clear what this word means in this context. (or any context for that matter)

agent46
22-03-2009, 22:49 PM
I guess I have a little trouble with Legalese.

Estoppel?

I am not clear what this word means in this context. (or any context for that matter)

In this context "the LL is estopped" basically means "the LL is barred from enforcing their strict legal rights because of a prior representation made by them which is inconsistent with the exercise of those rights even though that inconsistent representation did not grant the tenant any formal, enforceable, free-standing legal rights against the LL".

See, that just proves my point (made elsewhere) that putting legalese into Plain English merely makes things more verbose!

lorenzo
22-03-2009, 22:54 PM
In this context "the LL is estopped" basically means "the LL is barred from enforcing their strict legal rights because of a prior representation made by them which is inconsistent with the exercise of those rights even though that inconsistent representation did not grant the tenant any formal, enforceable, free-standing legal rights against the LL".

See, that just proves my point (made elsewhere) that putting legalese into Plain English merely makes things more verbose!

Excellent, thanks.

agent46
22-03-2009, 23:16 PM
Excellent, thanks.


Here's a link which goes into more depth: http://en.wikipedia.org/wiki/Estoppel

Ruth Less
22-03-2009, 23:54 PM
Also, the rules for periodic tenancies are different to those in fixed term tenancies, and s.5(2) makes it clear that the only way a periodic tenancy ends is by order of the court, or by surrender, or some other act by the tenant (ie: service of their own valid NTQ, and, see below).

In short, I prefer the analysis that once a s.21 has expired, the LL would be estopped from requiring the T to serve a NTQ. That scenario would also comply with the "some other act of the tenant" wording of s.5(2).

Just for the avoidance of doubt, this estoppel would only arise after the expiration of the s.21 notice. If the tenant wishes to give up possession prior to that date, then they must serve their own NTQ.
Right so when can T leave without serving a NTQ or being liable for more rent?

Say the S21 states the LL requires possession after 24th March 2009.

Presumably T can vacate on 24th March paying rent up to and including that date.

But what if T is still there on 25th March and pays another months rent, can he then leave on 24th April without having to serve a NTQ? Having paid the rent up till 24th April does he owe any more for not having given a NTQ?

What if T is still there on 25th March but has only paid rent up till 24th March, can T leave on 30th March and pay just the extra six days rent again without serving a NTQ? What extra rent if any does T now owe?

agent46
23-03-2009, 00:31 AM
Right so when can T leave without serving a NTQ or being liable for more rent?

Say the S21 states the LL requires possession after 24th March 2009.

Presumably T can vacate on 24th March paying rent up to and including that date.

Correct (probably).



But what if T is still there on 25th March and pays another months rent, can he then leave on 24th April without having to serve a NTQ? Having paid the rent up till 24th April does he owe any more for not having given a NTQ?

What if T is still there on 25th March but has only paid rent up till 24th March, can T leave on 30th March and pay just the extra six days rent again without serving a NTQ? What extra rent if any does T now owe?

Strictly speaking, by s.5(3) a periodic tenancy will have arisen, which would require T to perform all attendant obligations, including serving a NTQ. However, because the s.21 notice stated "I require possession after 24th March", after 24th March the LL may be estopped from requiring the T to serve a NTQ and so T may be able to leave at any point without further liability.

I say may, because I'm arguing from principle and not citing binding authority (case law). Also, estoppel is an equitable remedy and therefore discretionary, and whether the T can assert the estoppel or not depends to some extent their actions and anything they may have said to the LL which could lead the court to deny them the protection of the estoppel (ie: if the tenant is seen to be acting capriciously). Also, if the T stayed in possession for a longer period than one month, that may be evidence which leads the court to the conclusion that T is not entitled to the estoppel; this is because LL may be able to plead that an equity (specifically laches ie: delay) has arisen in his favour, and thus the tenant cannot raise the estoppel against him.

Lawcruncher
23-03-2009, 09:48 AM
Let's say that L has issued s21 during a periodic tenancy:


T moves out on expiry of S21.
L, who is of the opinion that T must serve NTQ to end tenancy, sues T for ongoing rent in lieu of notice.



Can anyone imagine a judge awarding against T? Not at all difficult to imagine.
Has there ever been an instance where this has actually happened? If there is it does not seem to have been reported.
Can someone please get voted in to parliament to fix this pig of a legislation? If there is a change of government you will only get back in the party that introduced the legislation.


As to the last point it needs to be borne in mind that legal drafting is not easy. First you need to cover all the angles and secondly when you have decided what you want to say you have to get the words right.

No lawyer, however smart, always covers all the angles. If you cover 20 possibilities the 21st you did not think of will come up.

When you get down to the drafting, however many times you check you do not always spot ambiguities, inconsistencies and the like.

The fact that the drafting of legislation, which is surely far more scrutinised than anything going between lawyers, often falls short of perfection rather proves the points. Even so, it is surprising how the process sometimes produces clearly defective legislation.

The drafting of the HA 1988 is in many places opaque. The problem we have here is not though really one of drafting in the sense of getting the right words. I hope I have shown in other threads that there is no legal basis for the proposition that the service of a section 21 notice removes the need for a tenant to serve a notice to quit - nothing in the Act changed the law. However, the draftsman, no doubt inadvertently, sowed confusion because on the one hand he quite clearly provided that assured tenancies could not be brought to an end by the landlord other than by a court order, and thus there can be no doubt that a S.21 notice does not bring an AST to an end, but on the other hand required the S.21 notice to be in such a form that it can look awfully like a notice to quit.

The estoppel argument is one I would like to believe in. I am sure it may convince some county court judges who are too busy to think the matter through in the absence of closely reasoned legal argument. A no nonsense "you said you wanted the property back and the tenant gave it back" approach has its attractions. The problem I have with the estoppel argument is that if it is to apply in every straightforward case (and by that I mean where the only communication between the parties as to the tenancy coming to an end is the notice) it creates uncertainty because once a landlord has served the notice he will not know when the tenancy is going to end if the tenant can simply up and leave without notice.

We know that a S. 21 notice does not bring a tenancy to an end. The estoppel argument seems really to be saying that it does not bring it to an end so far as the landlord is concerned, but that the tenant can effectively choose to maintain the tenancy until lawfully brought to an end or end it without notice. Whilst my natural sympathies are with tenants rather than landlords, I cannot help feeling that that cannot be right, quite apart from such an arrangement being incompatible with any species of tenancy with which I am familiar.

lorenzo
23-03-2009, 10:58 AM
If this is the absolute legal reality, and you've certainly made a great case that it is, then it seems that Ts are woefully under-informed of what their legal responsibilities are.

I'm sure the tenantry could live under this reality quite easily, if they are aware of it. The real reality is that 99% of both L & T are a least partially confused. For the life of me, the S21 looks like a notice that terminates a tenancy (even if additional steps are required to execute it) and I'm sure most people believe the same.

In fact the normal wording used by those in the industry (but not legally qualified) supports this incorrect view.

I'm wondering whether tenants should somehow be officially informed of these and other rights and responsibilities.

In Australia, each tenant must by law be given a gu'mint booklet that outlines all this for them, as it is unreasonable that Ts should dredge through the impenetrable legalese of legislation. Something like this would seem a good (and relatively low cost) idea.

As a further point, the Protection from Eviction Act 1977 states:


5 Validity of notices to quit

(1)[F1Subject to subsection (1B) below] no notice by a landlord or a tenant to quit any premises let (whether before or after the commencement of this Act) as a dwelling shall be valid unless—

(a)it is in writing and contains such information as may be prescribed, and

(b)it is given not less than 4 weeks before the date on which it is to take effect.etc etc, which supports your point.

How does this tie in with Ls notice obligations. It seems that s21 is not an unequivocal statement of when L actually does want T out, and T may be faced with a court order with no effective notice (eg SoD use of s21). It doesn't seem right.

lorenzo
23-03-2009, 12:04 PM
I'm sure the tenantry could live under this reality quite easily, if they are aware of it. The real reality is that 99% of both L & T are a least partially confused. For the life of me, the S21 looks like a notice that terminates a tenancy (even if additional steps are required to execute it) and I'm sure most people believe the same.

eq (arising from another thread from today) many tenants view, and refer to s21 as a NTQ.

Ruth Less
23-03-2009, 15:02 PM
Correct (probably).




Strictly speaking, by s.5(3) a periodic tenancy will have arisen, which would require T to perform all attendant obligations, including serving a NTQ. However, because the s.21 notice stated "I require possession after 24th March", after 24th March the LL may be estopped from requiring the T to serve a NTQ and so T may be able to leave at any point without further liability.

I say may, because I'm arguing from principle and not citing binding authority (case law). Also, estoppel is an equitable remedy and therefore discretionary, and whether the T can assert the estoppel or not depends to some extent their actions and anything they may have said to the LL which could lead the court to deny them the protection of the estoppel (ie: if the tenant is seen to be acting capriciously). Also, if the T stayed in possession for a longer period than one month, that may be evidence which leads the court to the conclusion that T is not entitled to the estoppel; this is because LL may be able to plead that an equity (specifically laches ie: delay) has arisen in his favour, and thus the tenant cannot raise the estoppel against him.
That all makes sense to me except that by the T delaying he then can't use the estoppel. I say this because L can still action the S21 so I'd think T can go. It would seem sensible that T can go unless both L and T clearly make arrangements for T to stay such that L cannot action the S21 any more. As the S21 is pretty indestructible L and T would probably need to sign a new contract to make the S21 go away. In other words if L is free to action the S21 then how can he not be estopped from asking T for a NTQ?

Ruth Less
23-03-2009, 15:12 PM
As to the last point it needs to be borne in mind that legal drafting is not easy. First you need to cover all the angles and secondly when you have decided what you want to say you have to get the words right.

No lawyer, however smart, always covers all the angles. If you cover 20 possibilities the 21st you did not think of will come up.

When you get down to the drafting, however many times you check you do not always spot ambiguities, inconsistencies and the like.

The fact that the drafting of legislation, which is surely far more scrutinised than anything going between lawyers, often falls short of perfection rather proves the points. Even so, it is surprising how the process sometimes produces clearly defective legislation.

The drafting of the HA 1988 is in many places opaque. The problem we have here is not though really one of drafting in the sense of getting the right words. I hope I have shown in other threads that there is no legal basis for the proposition that the service of a section 21 notice removes the need for a tenant to serve a notice to quit - nothing in the Act changed the law. However, the draftsman, no doubt inadvertently, sowed confusion because on the one hand he quite clearly provided that assured tenancies could not be brought to an end by the landlord other than by a court order, and thus there can be no doubt that a S.21 notice does not bring an AST to an end, but on the other hand required the S.21 notice to be in such a form that it can look awfully like a notice to quit.

The estoppel argument is one I would like to believe in. I am sure it may convince some county court judges who are too busy to think the matter through in the absence of closely reasoned legal argument. A no nonsense "you said you wanted the property back and the tenant gave it back" approach has its attractions. The problem I have with the estoppel argument is that if it is to apply in every straightforward case (and by that I mean where the only communication between the parties as to the tenancy coming to an end is the notice) it creates uncertainty because once a landlord has served the notice he will not know when the tenancy is going to end if the tenant can simply up and leave without notice.

We know that a S. 21 notice does not bring a tenancy to an end. The estoppel argument seems really to be saying that it does not bring it to an end so far as the landlord is concerned, but that the tenant can effectively choose to maintain the tenancy until lawfully brought to an end or end it without notice. Whilst my natural sympathies are with tenants rather than landlords, I cannot help feeling that that cannot be right, quite apart from such an arrangement being incompatible with any species of tenancy with which I am familiar.
Maybe you can explain how it would be right for T to on the one day be taken to court with L requesting possession while on the day before the L insisted that T can't leave without serving a months NTQ ending at the end of the next period which may well be in nearly two months time?

agent46
23-03-2009, 15:42 PM
That all makes sense to me except that by the T delaying he then can't use the estoppel. I say this because L can still action the S21 so I'd think T can go. It would seem sensible that T can go unless both L and T clearly make arrangements for T to stay such that L cannot action the S21 any more. As the S21 is pretty indestructible L and T would probably need to sign a new contract to make the S21 go away. In other words if L is free to action the S21 then how can he not be estopped from asking T for a NTQ?

It's not a bad argument, and it seems to restore an element of harmony to the landlord and tenant cosmos, however it's not as simple as that.......

The T's "right" to leave without notice arises in equity, therefore it is different to and, for want of a better word, less powerful than the landlord's legal right to rely on a s.21 notice.

Because one right arises at law and the other in equity, the two rights are not equal and although it may, as you put it 'seem sensible', it is, I believe, a mistake to believe that because the LL can rely on a "stale" s.21 notice, the T can also rely on an equally stale estoppel.

In a single sentence - unless there is a rule of law to the contrary (eg: a limitation period, or "use by date" as in the case of a s.8 notice) a legal right such as a s.21 notice cannot be defeated by delay or capriciousness of intent in enforcing the right, whereas an equity such as an estoppel can be extinguished in such a manner (and, can also wither as a result of other factors).

I know it is difficult to get one's head around, but if you're struggling to understand the interplay of the two doctrines then you are not on your own! I was lucky because I really enjoyed the topic but law students spend a whole year studying equity, and many of them have trouble grasping the subject yet somehow manage to pass their exams with only a very hazy idea of how it all works. Just take comfort in the fact that in just a couple of months' time, thousands of them will be scratching their heads trying make sense of and reconcile unfeasibly complicated and inconsistent cases like Vandervell v. IRC (Nos: 1 & 2) and Re:Oughtred.

Have a read of this: http://en.wikipedia.org/wiki/Equity_(law)

mind the gap
23-03-2009, 16:08 PM
Just take comfort in the fact that in just a couple of months' time, thousands of them will be scratching their heads trying make sense of and reconcile unfeasibly complicated and inconsistent cases like Vandervell v. IRC (Nos: 1 & 2) and Re:Oughtred.

;)So... if you throw out a few veiled hints at what the exam question might look like for that case, and we put on funny clothing and reflect upon it...then send you by special delivery private message by owl, what we think might be the answer, in code, with a funny handshake embroidered into it, will you send us a pm back giving us a non-committal hint as to how far off the real answer we are - or might be - without prejudice, you understand?

Then, irrespective of how far off we are, can we pay you a lot of money to come and hear the right answer and get our s'tifficates so we can be lawyers an' all?

Cor, thanks agent!

Ruth Less
23-03-2009, 16:09 PM
It's not a bad argument, and it seems to restore an element of harmony to the landlord and tenant cosmos, however it's not as simple as that.......

The T's "right" to leave without notice arises in equity, therefore it is different to and, for want of a better word, less powerful than the landlord's legal right to rely on a s.21 notice.

Because one right arises at law and the other in equity, the two rights are not equal and although it may, as you put it 'seem sensible', it is, I believe, a mistake to believe that because the LL can rely on a "stale" s.21 notice, the T can also rely on an equally stale estoppel.

In a single sentence - unless there is a rule of law to the contrary (eg: a limitation period, or "use by date" as in the case of a s.8 notice) a legal right such as a s.21 notice cannot be defeated by delay or capriciousness of intent in enforcing the right, whereas an equity such as an estoppel can be extinguished in such a manner (and, can also wither as a result of other factors).

I know it is difficult to get one's head around, but if you're struggling to understand the interplay of the two doctrines then you are not on your own! I was lucky because I really enjoyed the topic but law students spend a whole year studying equity, and many of them have trouble grasping the subject yet somehow manage to pass their exams with only a very hazy idea of how it all works. Just take comfort in the fact that in just a couple of months' time, thousands of them will be scratching their heads trying make sense of and reconcile unfeasibly complicated and inconsistent cases like Vandervell v. IRC (Nos: 1 & 2) and Re:Oughtred.

Have a read of this: http://en.wikipedia.org/wiki/Equity_(law)
Right so if L insists on a NTQ from T then T's departure is delayed. Meanwhile L's court date for possession could roll up. So what would the court make of on the one hand L asking for possession and on the other insisting T owes rent of up to two months (the time taken for a months NTQ to end at the end of a period).

T could argue that without the need to serve his own NTQ he could have gone by now and thus not have been liable for L's court fee.

While all this is happening T needs to find a suitable alternate property available on the right date. Again in not letting T go L is making it harder for T to comply with the S21.

All this further compounded by the "Sword of Damocles" that is Ls serving S21 notices that they don't intend to action right away and where L gives T the impression the S21 is just routine and nothing to worry about.

Then when L finally decides to action the S21 T gets no notice of this and yet is still supposed to serve his own NTQ before he can leave even though the court date to action the old S21 may now be imminent?

Lawcruncher
23-03-2009, 19:05 PM
Right so if L insists on a NTQ from T then T's departure is delayed. Meanwhile L's court date for possession could roll up. So what would the court make of on the one hand L asking for possession and on the other insisting T owes rent of up to two months (the time taken for a months NTQ to end at the end of a period).

T could argue that without the need to serve his own NTQ he could have gone by now and thus not have been liable for L's court fee.

While all this is happening T needs to find a suitable alternate property available on the right date. Again in not letting T go L is making it harder for T to comply with the S21.

All this further compounded by the "Sword of Damocles" that is Ls serving S21 notices that they don't intend to action right away and where L gives T the impression the S21 is just routine and nothing to worry about.

Then when L finally decides to action the S21 T gets no notice of this and yet is still supposed to serve his own NTQ before he can leave even though the court date to action the old S21 may now be imminent?

All this sounds fine, but the point I think you are missing is this: a tenant's position is what it always was - he has to give a notice to quit to end the tenancy. The HA 1988 did nothing to make the tenant's position more difficult to bring a periodic tenancy to an end by notice to quit. What the Act did do was to set out a procedure a landlord has to follow to bring a tenancy to an end. The way this procedure is set up can make it look as if the tenant's position so far as bringing the tenancy to an end has been in some way prejudiced, but really it has not. The real prejudice of the Act is that it does away with security of tenure!

agent46
23-03-2009, 19:26 PM
Right so if L insists on a NTQ from T then T's departure is delayed. Meanwhile L's court date for possession could roll up. So what would the court make of on the one hand L asking for possession and on the other insisting T owes rent of up to two months (the time taken for a months NTQ to end at the end of a period).

T could argue that without the need to serve his own NTQ he could have gone by now and thus not have been liable for L's court fee.

etc

I presume you are referring to the situation where the LL has instigated possession proceedings?

Firstly, it's highly unlikely that this would ever crop up, simply because a LL who issues proceedings is usually going to be offering burnt offerings in thanks that the tenant has cleared off before a court hearing became necessary.

Truth is, I don't know for certain what the court would make of it, but my best guess is that the LL would be estopped from requiring T to serve a NTQ upon issue of the claim form.



While all this is happening T needs to find a suitable alternate property available on the right date. Again in not letting T go L is making it harder for T to comply with the S21.

All this further compounded by the "Sword of Damocles" that is Ls serving S21 notices that they don't intend to action right away and where L gives T the impression the S21 is just routine and nothing to worry about.

Then when L finally decides to action the S21 T gets no notice of this and yet is still supposed to serve his own NTQ before he can leave even though the court date to action the old S21 may now be imminent?


All of the above may be true, but that doesn't affect the effect of the law as it is passed by Parliament or the position at common law. There are many instances of legislative provisions bringing about unintended yet highly inconvenient and unfair outcomes. If you want an example which also doubles up as a cheap and non-addictive alternative to Mogadon, read the Vandervell cases I mentioned earlier. In summary, Mr Vandervell tried to avoid stamp duty on some shares by way of a hare-brained scheme involving, amongst other things, the endowment of a Chair at the Royal College of Surgeons with gifted shares subject to a buy-back option. The tax avoidance scheme went spectacularly awry when it fell foul of legal requirements for certain types of dispositions to be in writing, and poor old Mr Vandervell ended up in litigation with the Inland Revenue for the rest of his life (once to the House of Lords and twice to the Court of Appeal, IIRC), was virtually ruined by all the tax he kept inadvertantly accruing on these shares and the costs associated with the legal battles, and just to put the icing on the cake, as a direct result of the legal implications of his ill-thought out enterprise, after he died, his children ended up in a nasty battle with his widow over ownership of money and shares, and that mess also had to be sorted out by the Court of Appeal.


Back to the s.21/NTQ issue. The fact that we have gone 20 years without the point being litigated suggests that it is of little practical importance. Looking at it realistically,

(1) Most LLs are only too glad to see the back of tenants who they have issued with a s.21 notice, so, for the most part it is a non-issue.

(2) It would only be a tiny minority of tenants that would have the ability or motivation to reason this issue through to the conclusion that they may need to serve a NTQ once a s.21 has expired. Even if they had done so, they are not likely to tell the LL about this rather inconvenient fact.

(3) The vast majority of LLs are even more ignorant of the law than are tenants, and so they are highly unlikely to have arrived at these conclusions themselves and would probably assume the tenant did not need to give notice.

(4) Even if a LL wasn't happy that his tenant had scarpered without issuing a NTQ AND even if he took professional advice on the matter (and by professional I don't mean a quick chat with a generalist High St solicitor, I mean seeking an opinion from specialist (ie: expensive) counsel) AND if that opinion reached identical conclusions to those reached by Lawcruncher and I, then there is still the practical difficulty of suing and enforcing judgment against a tenant who has, efffectively, absconded. Even supposing the LL decided to progress the matter to a hearing, he would require the services of counsel to argue the law on his behalf (more expense). And even then, the court's decision may well remain unreported unless it went to appeal. So taking into account all the expense, inconvenience and the remote possibility of a LL ever seeing their money, litigation on this point is extremely unlikely.

Ruth Less
23-03-2009, 21:24 PM
I presume you are referring to the situation where the LL has instigated possession proceedings?

Yes.


Firstly, it's highly unlikely that this would ever crop up, simply because a LL who issues proceedings is usually going to be offering burnt offerings in thanks that the tenant has cleared off before a court hearing became necessary.

Yes but if he can sting the T for another months rent in lieu of notice after the T has vacated then why not? I have seen a LL who had served a S21 early on in the tenancy ask for exactly this.


Truth is, I don't know for certain what the court would make of it, but my best guess is that the LL would be estopped from requiring T to serve a NTQ upon issue of the claim form.

No good to a T who doesn't know if or when the claim form will be issued.


Back to the s.21/NTQ issue. The fact that we have gone 20 years without the point being litigated suggests that it is of little practical importance. Looking at it realistically,

(1) Most LLs are only too glad to see the back of tenants who they have issued with a s.21 notice, so, for the most part it is a non-issue.

Sorry but this isn't true, especially renting through an agent where often serving the S21 to all tenants as a precaution is routine.

Therefore the tenant does not know if the S21 is going to be actioned or not, the decision to action it may be taken late on if say the tenant refuses to agree to a rent increase or bizarrely a friend has just been asked to leave as the LL wants to sell which has come as a shock given the state of the market.

In the case of a S21 served as routine (SoD) from what you write the T does face both having to serve a NTQ and at the same time not knowing if or when the old S21 may be actioned. Not that I was challenging your legal reasoning, I'm just observing that it does seem so bizarre that I wanted to make sure that is what you are saying.


(2) It would only be a tiny minority of tenants that would have the ability or motivation to reason this issue through to the conclusion that they may need to serve a NTQ once a s.21 has expired. Even if they had done so, they are not likely to tell the LL about this rather inconvenient fact.

Agreed, I had no idea till reading on this forum that I needed to serve a NTQ if the LL has served me a S21.


(3) The vast majority of LLs are even more ignorant of the law than are tenants, and so they are highly unlikely to have arrived at these conclusions themselves and would probably assume the tenant did not need to give notice.

Well I hope so but not that reassuring when up to two months rent is at stake.


(4) Even if a LL wasn't happy that his tenant had scarpered without issuing a NTQ AND even if he took professional advice on the matter (and by professional I don't mean a quick chat with a generalist High St solicitor, I mean seeking an opinion from specialist (ie: expensive) counsel) AND if that opinion reached identical conclusions to those reached by Lawcruncher and I, then there is still the practical difficulty of suing and enforcing judgment against a tenant who has, efffectively, absconded. Even supposing the LL decided to progress the matter to a hearing, he would require the services of counsel to argue the law on his behalf (more expense). And even then, the court's decision may well remain unreported unless it went to appeal. So taking into account all the expense, inconvenience and the remote possibility of a LL ever seeing their money, litigation on this point is extremely unlikely.

While I agree with this point my reason for asking is to fully understand how the need for T to serve a NTQ interacts with the so called Sword of Damocles, the routine serving of S21s to all tenants as a precaution which if you search these forums is quite common even recommended by the NLA I think. It is a wheeze to have dispensed with the two months notice period early on so it's not in the way later if possession is then required.

I'd still just leave in that case, if there is a S21 whose notice period is expired I'd not bother with a NTQ.

Ruth Less
23-03-2009, 22:02 PM
(1) Most LLs are only too glad to see the back of tenants who they have issued with a s.21 notice, so, for the most part it is a non-issue.

Some examples (there are many others) of the routine serving of the S21 by landlords/agents who do not as yet intend T to leave:

s21 at the start of tennacy
http://www.landlordzone.co.uk/forums/showthread.php?t=13114&highlight=damocles

Serving a Section 21 Notice immediately
http://www.landlordzone.co.uk/forums/showthread.php?t=16096&highlight=damocles

Notice Requiring Possession
http://www.landlordzone.co.uk/forums/showthread.php?t=17220&highlight=damocles

s.21 - Optional SoD?
http://www.landlordzone.co.uk/forums/showthread.php?t=16346&highlight=damocles

Can landlord serve annual s.21 Notices routinely?
http://www.landlordzone.co.uk/forums/showthread.php?t=11930&highlight=damocles

Sequence of Tenancy Agreement, Deposit taking, receipt, S21..
http://www.landlordzone.co.uk/forums/showthread.php?t=17443&highlight=damocles

When fixed-term AST expires, should I ask for another?
http://www.landlordzone.co.uk/forums/showthread.php?t=17388&highlight=damocles

Received s. 21 Notice issued as routine by Agents
http://www.landlordzone.co.uk/forums/showthread.php?t=8938&highlight=damocles

Can accompanying letter make s.21 Notice invalid?
http://www.landlordzone.co.uk/forums/showthread.php?t=8506&highlight=damocles

Section 21 Query
http://www.landlordzone.co.uk/forums/showthread.php?t=2852&highlight=damocles

So it's not a non-issue. Certainly if I was served a Sword of Damocles S21 I'd be wanting to know what my leaving rights are and what my obligations to serve a NTQ are! I would not just sit about fretting to see if the LL was going to issue a claim form to instigate possession proceedings or not.

agent46
23-03-2009, 22:36 PM
I did start to answer all your points in turn, but then I realised that they could be all rolled up into one general answer, which is: "Just because lots of people are all acting under a set of assumptions about the legal position doesn't mean that those assumptions are correct."

I think Lawcruncher and I have pretty much done this topic to death now. We've reasoned it through quite thoroughly with close references to the specific provisions of the statute which governs the matter (HA 1988 s.5 and s.21), the common law on NTQs and the principles of equity which might be applied by the court when resolving a hypothetical case.

I'd agree that the combined effect of s.5 and s.21 the Act and the common misunderstandings of the nature of a s.21 notice (which are shared by the majority of agents and landlords and which informs their practice) rather leads to confusion and uncertainty, but that doesn't change my view on the law. In short, LC and I have analysed the law as we believe it would be applied to a hypothetical set of facts by a judge and have not looked at what landlords and agents think the law either is or should be on the matter.

For the record, I'm more than happy for someone with greater knowledge or legal reasoning skills to demonstrate by way of legal argument where we have gone wrong and, in fact, I/we would welcome such a counter-argument.

Ruth Less
23-03-2009, 23:23 PM
I did start to answer all your points in turn, but then I realised that they could be all rolled up into one general answer, which is: "Just because lots of people are all acting under a set of assumptions about the legal position doesn't mean that those assumptions are correct."

I think Lawcruncher and I have pretty much done this topic to death now. We've reasoned it through quite thoroughly with close references to the specific provisions of the statute which governs the matter (HA 1988 s.5 and s.21), the common law on NTQs and the principles of equity which might be applied by the court when resolving a hypothetical case.

I'd agree that the combined effect of s.5 and s.21 the Act and the common misunderstandings of the nature of a s.21 notice (which are shared by the majority of agents and landlords and which informs their practice) rather leads to confusion and uncertainty, but that doesn't change my view on the law. In short, LC and I have analysed the law as we believe it would be applied to a hypothetical set of facts by a judge and have not looked at what landlords and agents think the law either is or should be on the matter.

For the record, I'm more than happy for someone with greater knowledge or legal reasoning skills to demonstrate by way of legal argument where we have gone wrong and, in fact, I/we would welcome such a counter-argument.
I think it is you who has just missed my point, I wasn't challenging your legal arguments, I even wrote "Not that I was challenging your legal reasoning"!

What I'm challenging you about in my last two posts is this:

"(1) Most LLs are only too glad to see the back of tenants who they have issued with a s.21 notice, so, for the most part it is a non-issue."

and explaining why it isn't a non-issue - due to the SoD S21. Those links were not to explain what agents/landlords/uncle tom cobley thinks the law is but simply to illustrate that many S21s are served where the LL would not as yet be "only too glad to see the back of tenant". Therefore the tenant needs to know if he should still serve a NTQ or not. That is I was explaining why I was asking about it in the first place, ie why it isn't non-issue.

So why you are writing about not changing your view on the law in reply to that is beyond me as your legal point of view hasn't just been challenged.

All I did was explain why it mattered to the T in the face of it being called a non-issue. Geez.

agent46
23-03-2009, 23:53 PM
I think it is you who has just missed my last point, I wasn't challenging your legal arguments, I even wrote Not that I was challenging your legal reasoning!

What I'm challenging you about in my last post is this:

"(1) Most LLs are only too glad to see the back of tenants who they have issued with a s.21 notice, so, for the most part it is a non-issue."

and explaining why it isn't a non-issue - due to the SoD S21. Those links were not to explain what agents think the law is but simply to illustrate that many S21s are served where the LL would not as yet be "only too glad to see the back of tenant". Therefore the tenant needs to know if he should still serve a NTQ or not. That is not challenging your view of the law but explaining why I was asking about it in the first place, ie why it isn't non-issue.

.

The points I made were not intended to all be taken as necessary conditions which led to a situation where the s.21/NTQ issue had not been litigated. I merely postulated a list of non-exhaustive reasons why I think that is the case. I may have gone a bit far by claiming that most LLs are only too glad to see the back of a tenant they have served with a s.21 notice, but that does not detract from the other points in the list.

With reference to the SoD issue: the SoD situation is somewhat different from the scenario which causes the controversy under discussion in this thread, namely the question of whether a tenant on a periodic tenancy where a s.21 notice has expried is then required to serve their own NTQ. For the reasons advanced elsewhere in this thread and others, a SoD s.21 notice does not entitle a T to simply walk away from a fixed term tenancy before the expiration date of the notice, although there are situations where it could be interpreted as a break clause notice which might entitle the T to consider the tenancy has been brought to an end at that point (but that is a separate matter altogether). If a SoD s.21 has been expired many months beforehand, as I have explained elsewhere in the thread, the T may well need to serve a NTQ because their delay in giving up possession leads to them 'losing' the right to claim the LL is estopped.

In summary, whilst the arguments advanced by LC and I attempt to clarify the issue, as a result of the widespread misunderstanding of the nature of a s.21 notice (most LAs and LLs tend to speak of such notices as if they were NTQs when they are not), confusion remains and, if push comes to shove, few LAs, LLs and Ts know where they stand. That, I have to say, seems to be more to do with a failure of the organisations which represent and advise LLs, LAs and Ts to take legal advice which fully works through the implications of the interplay between HA 1988 s.5 and s.21, the common law on NTQ and the principles of equity which may be in play, rather than any substantial defect in the law (although I accept the relevant provisions in HA 1988 could have been drafted less opaquely). If one or all of those bodies had taken such advice, then guidance may have been issued which made matters clear for everyone involved. However, it seems to me that bodies like NLA, ARLA, NAEA etc, being lay bodies (without, it seems, in-house legal teams) have a tendency to either fail to recognise the existence of such difficulties, or they simply ignore the issue, or else they have a crack at interpreting the law themselves without recourse to professional legal advice.

Nevertheless, as to my point that it is a 'non-issue' (at the present time, at any rate), the facts speak for themselves. Although the Act is 20 years old, I know of no case law which deals with the matter, nor have I ever heard, anecdotally, of a case where a LL has sued a T who left before the expiration of a s.21 notice for unpaid rent. As I suggested, this may be because LLs may not realise the T is required to serve a NTQ, or it may be because a number of them want the tenant to move out asap, or it may be because a cost/benefit assessment of the potential litigation makes pursuing the matter futile. It may well be that in the recession LLs become more litigious when faced with the situation where a T has walked away without notice from a tenancy when a s.21 notice (SoD or otherwise) has expired, but given that the matter is far from simple, the legal costs will be large (likely to be in the several thousands, potentially tens of thousands if it goes to appeal), and the tenant probably impecunious and untraceable, it will continue to be hardly ever worth pressing the issue.

Again, my reference to Vandervell serves as a good example of how the absence of litigation on a point is not a reliable indication that the common practice operated within a particular professsional discipline demonstrates that the law which governs the practice is being interpreted correctly by those professionals. The legal provision which was under review in that case (LPA 1925 s.53) had been on the statute books in one form or another for, IIRC, 289 years without ever being litigated, and then all of a sudden within about 5 years there were 3 or 4 cases all dealing with the same or simiilar issues involving s.53. The reasons for the sudden rash of cases are not at all mysterious - it was simply that the Inland Revenue decided to clamp down on what they viewed as a misuse of informal dispositions of beneficial interests subject to a trust in an attempt to avoid paying tax. The sums of money involved were substantial and thus worth fighting about and the litigants were wealthy companies or individuals who were worth suing and who could also affford to take cases all the way up to the House of Lords.

Ruth Less
24-03-2009, 00:22 AM
The points I made were not intended to all be taken as necessary conditions which led to a situation where the s.21/NTQ issue had not been litigated. I merely postulated a list of non-exhaustive reasons why I think that is the case. I may have gone a bit far by claiming that most LLs are only too glad to see the back of a tenant they have served with a s.21 notice, but that does not detract from the other points in the list.

With reference to the SoD issue: the SoD situation is different altogether from the scenario which causes the controversy under discussion in this thread, namely the question of whether a tenant on a periodic tenancy where a s.21 notice has expried is then required to serve their own NTQ. For the reasons advanced elsewhere in this thread and others, a SoD s.21 notice does not entitle a T to simply walk away from a fixed term tenancy before the expiration date of the notice, although there are situations where it could be interpreted as a break clause notice which might entitle the T to consider the tenancy has been brought to an end at that point (but that is a separate matter altogether).

Nevertheless, as to my point that it is a 'non-issue', the facts speak for themselves. Although the Act is 20 years old, I know of no case law which deals with the matter, nor have I ever heard, anecdotally, of a case where a LL has sued a T who left before the expiration of a s.21 notice for unpaid rent. As I suggested, this may be because LLs may not realise the T is required to serve a NTQ, or it may be because a number of them want the tenant to move out asap, or it may be because a cost/benefit assessment of the potential litigation makes pursuing the matter futile.

Again, my reference to Vandervell serves as a good example of how the absence of litigation on a point is not a reliable indication that the common practice operated within a particular professsional discipline demonstrates that the law which governs the practice is being interpreted correctly by those professionals. The legal provision which was under review in that case (LPA 1925 s.53) had been on the statute books in one form or another for, IIRC, 289 years without ever being litigated, and then all of a sudden within about 5 years there were 3 or 4 cases all dealing with the same or simiilar issues involving s.53. The reasons for the sudden rash of cases are not at all mysterious - it was simply that the Inland Revenue decided to clamp down on what they viewed as a misuse of informal dispositions of beneficial interests subject to a trust in an attempt to avoid paying tax. The sums of money involved were substantial and thus worth fighting about and the litigants were wealthy companies or individuals who were worth suing and who could also affford to take cases all the way up to the House of Lords.
I am not talking about the T walking away before the expiration date of the notice.

My points are relevant to the thread namely:

L serves a S21 as a precaution that he doesn't as yet intend to action - this is the SoD. L hints S21 is nothing to worry about just routine etc.

S21 notice period expires. Tenancy is now periodic.

T is left in position of uncertainty as to if S21 is to be actioned or not.

This puts T in a position of wanting to know if he can just leave as he sees his right to notice from L is gone. A question that this thread has been answering.

Totally on topic for "the controversy under discussion in this thread, namely the question of whether a tenant on a periodic tenancy where a s.21 notice has expried is then required to serve their own NTQ"

My point is if it's a SoD S21 then L is more likely to hold T to to giving a NTQ as he didn't really want T to leave. Unlike a S21 just served on a bad T that L wants out asap no messing about. I mentioned the SoD at length to explain why it isn't a non issue and why I was interested in the answers about NTQ. Indeed I do know of an instance where after T had left L went after T for a months rent in lieu of a NTQ, in this case T didn't serve the NTQ because of the SoD S21 which had been served soon after the tenancy started and which expired two weeks before T left. (T left two weeks after the fixed term finished). Thing is it went to arbitration at one of the deposit schemes so the ruling was of no use for other cases but the point is this situation does happen.

Lawcruncher
24-03-2009, 00:47 AM
Is the point not that the law is uncertain, but that the tenant is uncertain of the law and the landlord's intentions?

Ruth Less
24-03-2009, 02:13 AM
In summary, whilst the arguments advanced by LC and I attempt to clarify the issue, as a result of the widespread misunderstanding of the nature of a s.21 notice (most LAs and LLs tend to speak of such notices as if they were NTQs when they are not), confusion remains and, if push comes to shove, few LAs, LLs and Ts know where they stand. That, I have to say, seems to be more to do with a failure of the organisations which represent and advise LLs, LAs and Ts to take legal advice which fully works through the implications of the interplay between HA 1988 s.5 and s.21, the common law on NTQ and the principles of equity which may be in play, rather than any substantial defect in the law (although I accept the relevant provisions in HA 1988 could have been drafted less opaquely). If one or all of those bodies had taken such advice, then guidance may have been issued which made matters clear for everyone involved. However, it seems to me that bodies like NLA, ARLA, NAEA etc, being lay bodies (without, it seems, in-house legal teams) have a tendency to either fail to recognise the existence of such difficulties, or they simply ignore the issue, or else they have a crack at interpreting the law themselves without recourse to professional legal advice.

Maybe we could have a whip round and buy NLA, ARLA, NAEA etc some legal advice :D

digital
26-03-2009, 10:54 AM
Back to the original query...

I'm going to write to the tenant to remind him of the date he should be out by and to arrange to see him that morning to collect keys and check inventory. Any problems with doing that?

I've also had a look at what might happen if he declines to take any notice of the S21 and stays on. Could someone have a look at the following alternatives scenarios please:

- I can go for Accelerated Possession by completing a Form N5B and submitting it to the County Court for the area in which the property is located. If I take this route I cannot ask for rent arrears and the process does not involve attendance at Court as the judge works wholly from the paperwork. I'm not clear, however, how long this takes from submission of the form on the day I discover they're not gone until the judge tells them to go. I'm also not clear on whether or not I can claim arrears and penalty charges (as per AST contract) by another route having foregone the opportunity by virtue of using the N5B.

- If I want to claim for rent arrears and penalty charges I need to complete Forms N5 and N119. This takes longer (how long?) and may involve a personal appearance in front of the judge.

Am I correct in believing that, whichever route I take, should the tenant decide to ignore the judge I would then have to go back to Court and ask for bailiffs to be sent in to move them out?

TIA

Paul Gibbs
26-03-2009, 11:32 AM
Back to the original query...

I'm going to write to the tenant to remind him of the date he should be out by and to arrange to see him that morning to collect keys and check inventory. Any problems with doing that? no

I've also had a look at what might happen if he declines to take any notice of the S21 and stays on. Could someone have a look at the following alternatives scenarios please:

- I can go for Accelerated Possession by completing a Form N5B and submitting it to the County Court for the area in which the property is located. If I take this route I cannot ask for rent arrears and the process does not involve attendance at Court as the judge works wholly from the paperwork. I'm not clear, however, how long this takes from submission of the form on the day I discover they're not gone until the judge tells them to go. I'm also not clear on whether or not I can claim arrears and penalty charges (as per AST contract) by another route having foregone the opportunity by virtue of using the N5B. Under the accelerated procedure there will usually be no hearing, however, if the judge is not satisfied with your paper application then they can list a hearing. This will usually be when the paperwork is wrong or unclear, or if T raises some unusual defence eg claims is a rent act tenant. Usually the court will issue the possession order within say 2 weeks of receiving the papers. The possession date sould then be 14 days from then, however T can apply for more time. Using the accelerated possession route does not prevent you suing for arrears and damage after T vacates
- If I want to claim for rent arrears and penalty charges I need to complete Forms N5 and N119. This takes longer (how long?) and may involve a personal appearance in front of the judge. Usually the form will be issued within say a week, but a hearing could be around 6 weeks away. you will need to attend the hearing and you will get a possession order plus a money judgment.

Am I correct in believing that, whichever route I take, should the tenant decide to ignore the judge I would then have to go back to Court and ask for bailiffs to be sent in to move them out? Yes you just lodge a form with the court and pay a fee of £95

TIA


see above...

digital
26-03-2009, 11:50 AM
Thanks, that's brilliant!

Just one question: is the slower route in front of the judge more likely to get me the arrears and charges back, or will I have just as much chance doing it separately through Money Claim Online?

agent46
26-03-2009, 13:20 PM
- If I want to claim for rent arrears and penalty charges I need to complete Forms N5 and N119. This takes longer (how long?) and may involve a personal appearance in front of the judge.


I would strongly advise you against describing any monies claimed as "penalty charges". This is because penalty charges are unenforceable at common law. The judge is already going to be looking at any monies claimed for late rent payments, arrears letters and so on with a beady eye, so don't give them the excuse they are looking for to disallow those sums.

digital
26-03-2009, 14:30 PM
Thanks. Is there an acceptable phrase?

jeffrey
26-03-2009, 14:58 PM
Thanks. Is there an acceptable phrase?
Well, on what basis are you claiming these 'extras'? Are they specified in the Tenancy Agreement?

lorenzo
26-03-2009, 15:19 PM
Back to the original query...

I'm going to write to the tenant to remind him of the date he should be out by and to arrange to see him that morning to collect keys and check inventory. Any problems with doing that? no

I've also had a look at what might happen if he declines to take any notice of the S21 and stays on.... etc

After all the recent discussion regarding S21, this poster and the subsequent advice seem to regard in practice that s21 notice is a NTQ. :confused:

Is there some cognitive dissonance here?

On another point: The T obviously has not served NTQ on LL. The fact that L has written to tenant indicating when he wants T out by would surely invoke the estoppel argument? Even if T thumbs his nose at LL and moves out at some later date without notice?

digital
26-03-2009, 16:26 PM
Well, on what basis are you claiming these 'extras'? Are they specified in the Tenancy Agreement?
Yes.

£25 for each letter regarding rent arrears (I've kept it down to just two over the whole five months), Nat West base rate + 2% on the arrears and, once they are 10 days in arrears, £10 per day for each day they remain so (and they've been in arrears since November last).

jeffrey
26-03-2009, 16:44 PM
Yes.

£25 for each letter regarding rent arrears (I've kept it down to just two over the whole five months), Nat West base rate + 2% on the arrears and, once they are 10 days in arrears, £10 per day for each day they remain so (and they've been in arrears since November last).
Well, that does help. As long as the sums are reasonable estimates of L's extra costs, they're not penalties as such. I'm not too sure, though, that '£10 per day' is cost-related, so that bit might fail.

Ruth Less
26-03-2009, 19:45 PM
After all the recent discussion regarding S21, this poster and the subsequent advice seem to regard in practice that s21 notice is a NTQ. :confused:

Is there some cognitive dissonance here?

On another point: The T obviously has not served NTQ on LL. The fact that L has written to tenant indicating when he wants T out by would surely invoke the estoppel argument? Even if T thumbs his nose at LL and moves out at some later date without notice?
It seems to me that on receipt of a S21 the tenant should pack his bags or not depending on what the landlord says should happen and that L is free to chop and change his mind as much as he wises. If T does leave without serving a NTQ then L can go after T for more rent in lieu of the lack of NTQ. It seems the exception to this is if L has issued the claim forum to start court proceedings against T in which case some estoppel may apply and T may leave but I'm not exactly sure when, perhaps at the end of the the current paid for period as I'm pretty sure T can't claim back paid rent if he leaves "early". Meanwhile T's references hit the gutter for having ignored the S21 and he will owe L's court fees. But that's all OK as the law is clear except with bodies like NLA, ARLA, NAEA without, it seems, in-house legal teams.

T serving a NTQ to end at the end of a period is tricky at the best of times so if he can't get a new place lined up to fit L's schedule it gets harder to leave, this is why L being a bit flexible about when T can leave after (or even before) S21 notice period expiry helps a lot. A different kettle of fish to when T is leaving through is own choice as then he has time to plan the move and make sure it isn't in the middle of his holiday etc.

Finally T doesn't have to worry about the above as hopefully his landlord and the agent don't have legal teams either.

Maybe.

Lawcruncher
26-03-2009, 20:31 PM
£25 for each letter regarding rent arrears (I've kept it down to just two over the whole five months), Nat West base rate + 2% on the arrears and, once they are 10 days in arrears, £10 per day for each day they remain so (and they've been in arrears since November last).


The £25 for each letter regarding rent arrears and the £10 per day are almost certainly going to be contractual penalties and irrecoverable. The latter certainly is. As to the former, I do not think that landlords can charge tenants for any admin they carry out and if they do I think it has to be restricted to the actual cost i.e. the notepaper, envelope and stamp; they cannot charge for their time.

Ruth Less
26-03-2009, 22:47 PM
The drafting of the HA 1988 is in many places opaque. The problem we have here is not though really one of drafting in the sense of getting the right words. I hope I have shown in other threads that there is no legal basis for the proposition that the service of a section 21 notice removes the need for a tenant to serve a notice to quit - nothing in the Act changed the law. However, the draftsman, no doubt inadvertently, sowed confusion because on the one hand he quite clearly provided that assured tenancies could not be brought to an end by the landlord other than by a court order, and thus there can be no doubt that a S.21 notice does not bring an AST to an end, but on the other hand required the S.21 notice to be in such a form that it can look awfully like a notice to quit.


After all the recent discussion regarding S21, this poster and the subsequent advice seem to regard in practice that s21 notice is a NTQ. :confused:

Is there some cognitive dissonance here?

On another point: The T obviously has not served NTQ on LL. The fact that L has written to tenant indicating when he wants T out by would surely invoke the estoppel argument? Even if T thumbs his nose at LL and moves out at some later date without notice?

Oh and one more thing, what about a Section 8 notice, presumably that doesn't bring the tenancy to an end either as L still needs to go via the courts if T doesn't leave. So does T need to serve a months NTQ then too? Cos that really would be bizarre especially considering that for some grounds S8 gives two weeks notice ... S8 must be different as it allows the tenancy to be finished during the fixed term which obviously a T's NTQ cannot do. So why does the court order argument not apply to S8 or does it?

Ericthelobster
27-03-2009, 06:57 AM
The £25 for each letter regarding rent arrears and the £10 per day are almost certainly going to be contractual penalties and irrecoverable. The latter certainly is. As to the former, I do not think that landlords can charge tenants for any admin they carry out and if they do I think it has to be restricted to the actual cost i.e. the notepaper, envelope and stamp; they cannot charge for their time.I've argued the toss with LC over this in the past; suffice it to say that my agreement states "...you must... pay our reasonable costs for sending reminder letters. These will be £15 for each reminder" and this hasn't been questioned by a judge who's found in my favour.

agent46
27-03-2009, 09:27 AM
Oh and one more thing, what about a Section 8 notice, presumably that doesn't bring the tenancy to an end either as L still needs to go via the courts if T doesn't leave. So does T need to serve a months NTQ then too? Cos that really would be bizarre especially considering that for some grounds S8 gives two weeks notice ... S8 must be different as it allows the tenancy to be finished during the fixed term which obviously a T's NTQ cannot do. So why does the court order argument not apply to S8 or does it?

I'll summarise:

(1) A s.21 notice does not end an AST.

(2) A s.8 notice does not end an AST.

(3) An AST can only be ended by a break clause notice (in a fixed term tenancy), or a court order, or surrender, or some other act of the tenant (ie: service of NTQ). (HA 1988 s.5)

(4) Upon expiry of a s.21 notice, a T will probably be entitled to leave immediately without needing to serve a NTQ because the LL will be estopped from requiring the T's NTQ. However, the AST continues beyond the expiry of the s.21 notice, and the longer the T leaves it after expiry, the less likely they are to be able to assert the estoppel (because estoppel is an equitable remedy and delay can lead to the equity being lost), or putting it the other way round, the more likely it is that they need to serve NTQ.

(5) If the LL commences possession proceedings, the T can leave after the date of issue of the claim form without needing to serve NTQ.


I hope that condenses the discussions in this thread into a user-friendly format.

jeffrey
27-03-2009, 09:52 AM
I'll summarise:

(1) A s.21 notice does not end an AST.

(2) A s.8 notice does not end an AST.

(3) An AST can only be ended by a break clause notice (in a fixed term tenancy), or a court order, or surrender, or some other act of the tenant (ie: service of NTQ). (HA 1988 s.5)

(4) Upon expiry of a s.21 notice, a T will probably be entitled to leave immediately without needing to serve a NTQ because the LL will be estopped from requiring the T's NTQ. However, the AST continues beyond the expiry of the s.21 notice, and the longer the T leaves it after expiry, the less likely they are to be able to assert the estoppel (because estoppel is an equitable remedy and delay can lead to the equity being lost), or putting it the other way round, the more likely it is that they need to serve NTQ.

(5) If the LL commences possession proceedings, the T can leave after the date of issue of the claim form without needing to serve NTQ.


I hope that condenses the discussions in this thread into a user-friendly format.
That's very good. Well done!

lorenzo
27-03-2009, 15:45 PM
I'll summarise:

(1) A s.21 notice does not end an AST.

(2) A s.8 notice does not end an AST.

(3) An AST can only be ended by a break clause notice (in a fixed term tenancy), or a court order, or surrender, or some other act of the tenant (ie: service of NTQ). (HA 1988 s.5)

(4) Upon expiry of a s.21 notice, a T will probably be entitled to leave immediately without needing to serve a NTQ because the LL will be estopped from requiring the T's NTQ. However, the AST continues beyond the expiry of the s.21 notice, and the longer the T leaves it after expiry, the less likely they are to be able to assert the estoppel (because estoppel is an equitable remedy and delay can lead to the equity being lost), or putting it the other way round, the more likely it is that they need to serve NTQ.

(5) If the LL commences possession proceedings, the T can leave after the date of issue of the claim form without needing to serve NTQ.


I hope that condenses the discussions in this thread into a user-friendly format.

Yes, I think it does. Unless someone comes along and confuses us non-legal types with something else.

Ruth Less
27-03-2009, 17:20 PM
I'll summarise:

(1) A s.21 notice does not end an AST.

(2) A s.8 notice does not end an AST.

(3) An AST can only be ended by a break clause notice (in a fixed term tenancy), or a court order, or surrender, or some other act of the tenant (ie: service of NTQ). (HA 1988 s.5)

(4) Upon expiry of a s.21 notice, a T will probably be entitled to leave immediately without needing to serve a NTQ because the LL will be estopped from requiring the T's NTQ. However, the AST continues beyond the expiry of the s.21 notice, and the longer the T leaves it after expiry, the less likely they are to be able to assert the estoppel (because estoppel is an equitable remedy and delay can lead to the equity being lost), or putting it the other way round, the more likely it is that they need to serve NTQ.

(5) If the LL commences possession proceedings, the T can leave after the date of issue of the claim form without needing to serve NTQ.


I hope that condenses the discussions in this thread into a user-friendly format.
Indeed it does, so thank you for that but it doesn't quite cover the S8 query.

If T doesn't leave pretty sharpish after the notice period in the S21 or S8 expires and L doesn't get on with possession proceedings (which he is under no obligation to do) then T needs to be serving a NTQ as he can't rely on estoppel for longer than a month.


Also, estoppel is an equitable remedy and therefore discretionary, and whether the T can assert the estoppel or not depends to some extent their actions and anything they may have said to the LL which could lead the court to deny them the protection of the estoppel (ie: if the tenant is seen to be acting capriciously). Also, if the T stayed in possession for a longer period than one month, that may be evidence which leads the court to the conclusion that T is not entitled to the estoppel; this is because LL may be able to plead that an equity (specifically laches ie: delay) has arisen in his favour, and thus the tenant cannot raise the estoppel against him.

All fine in the case of a S21 as T will no longer be in the fixed term so can end the uncertainty with his own NTQ. But not fine for an S8 as there may be months of a fixed term yet to run so T cannot serve a NTQ. So if in the fixed term T gets (say two weeks) notice under S8 and doesn't move out sharpish then it looks like he has to sit about waiting for L to issue the claim form or risk being asked for all rent up till the end of the fixed term. In this case T needs to know now long he can rely on the estoppel, and as that comes with a maybe up to a month should T best stay put and await the claim form?

I guess the problem for T comes down to not being able to reply upon the estoppel for very long and if he is not sure he can get out in time to rely on it then he may as well wait for the claim form if he can't serve a NTQ.

Ruth Less
27-03-2009, 17:52 PM
Also I may be reading post 23 wrongly but it doesn't sound like Lawcruncher agreed with the estoppel argument in the first place or has that changed now? Post 23:


As to the last point it needs to be borne in mind that legal drafting is not easy. First you need to cover all the angles and secondly when you have decided what you want to say you have to get the words right.

No lawyer, however smart, always covers all the angles. If you cover 20 possibilities the 21st you did not think of will come up.

When you get down to the drafting, however many times you check you do not always spot ambiguities, inconsistencies and the like.

The fact that the drafting of legislation, which is surely far more scrutinised than anything going between lawyers, often falls short of perfection rather proves the points. Even so, it is surprising how the process sometimes produces clearly defective legislation.

The drafting of the HA 1988 is in many places opaque. The problem we have here is not though really one of drafting in the sense of getting the right words. I hope I have shown in other threads that there is no legal basis for the proposition that the service of a section 21 notice removes the need for a tenant to serve a notice to quit - nothing in the Act changed the law. However, the draftsman, no doubt inadvertently, sowed confusion because on the one hand he quite clearly provided that assured tenancies could not be brought to an end by the landlord other than by a court order, and thus there can be no doubt that a S.21 notice does not bring an AST to an end, but on the other hand required the S.21 notice to be in such a form that it can look awfully like a notice to quit.

The estoppel argument is one I would like to believe in. I am sure it may convince some county court judges who are too busy to think the matter through in the absence of closely reasoned legal argument. A no nonsense "you said you wanted the property back and the tenant gave it back" approach has its attractions. The problem I have with the estoppel argument is that if it is to apply in every straightforward case (and by that I mean where the only communication between the parties as to the tenancy coming to an end is the notice) it creates uncertainty because once a landlord has served the notice he will not know when the tenancy is going to end if the tenant can simply up and leave without notice.

We know that a S. 21 notice does not bring a tenancy to an end. The estoppel argument seems really to be saying that it does not bring it to an end so far as the landlord is concerned, but that the tenant can effectively choose to maintain the tenancy until lawfully brought to an end or end it without notice. Whilst my natural sympathies are with tenants rather than landlords, I cannot help feeling that that cannot be right, quite apart from such an arrangement being incompatible with any species of tenancy with which I am familiar.

mind the gap
27-03-2009, 18:27 PM
agent46 - please clear some space in your message box

agent46
27-03-2009, 18:29 PM
Indeed it does, so thank you for that but it doesn't quite cover the S8 query.

If T doesn't leave pretty sharpish after the notice period in the S21 or S8 expires and L doesn't get on with possession proceedings (which he is under no obligation to do) then T needs to be serving a NTQ as he can't rely on estoppel for longer than a month.

All fine in the case of a S21 as T will no longer be in the fixed term so can end the uncertainty with his own NTQ. But not fine for an S8 as there may be months of a fixed term yet to run so T cannot serve a NTQ. So if in the fixed term T gets (say two weeks) notice under S8 and doesn't move out sharpish then it looks like he has to sit about waiting for L to issue the claim form or risk being asked for all rent up till the end of the fixed term. In this case T needs to know now long he can rely on the estoppel, and as that comes with a maybe up to a month should T best stay put and await the claim form?

I guess the problem for T comes down to not being able to reply upon the estoppel for very long and if he is not sure he can get out in time to rely on it then he may as well wait for the claim form if he can't serve a NTQ.

I don't think the estoppel would operate in the case of a s.8 notice.

You clearly have a real bee in your bonnet about this issue and, it seems, you just don't seem to be able to accept that what I have written is a correct statement of the law (but please tell me if I have misunderstood you). Unfortunately you don't actually formulate a reasoned counter-argument, or articulate where you think my legal reasoning has taken a wrong turn and instead just keep coming up with a seemingly endless list of "yeah, but" points, almost all of which can be answered with the rejoinder "so what".

In terms of legal argument, I have nothing to add to what I have written in my posts, above.

Re: Lawcruncher's opinion on estoppel etc: You seem to misunderstand the nature of an estoppel. As I have already stated several times, estoppel is an equitable and therefore discretionary and somewhat nebulous remedy, and so there is likely to be disgreement as to exactly how it will operate (nevertheless, LC clearly agrees that the argument has legs). However, it seems he doubts the likelihood of the T being able an open-ended estoppel, but then so do I, so we actually agree on that point.

Perhaps he will elaborate.

Ruth Less
27-03-2009, 20:44 PM
I don't think the estoppel would operate in the case of a s.8 notice.

You clearly have a real bee in your bonnet about this issue and, it seems, you just don't seem to be able to accept that what I have written is a correct statement of the law (but please tell me if I have misunderstood you). Unfortunately you don't actually formulate a reasoned counter-argument, or articulate where you think my legal reasoning has taken a wrong turn and instead just keep coming up with a seemingly endless list of "yeah, but" points, almost all of which can be answered with the rejoinder "so what".

In terms of legal argument, I have nothing to add to what I have written in my posts, above.

Re: Lawcruncher's opinion on estoppel etc: You seem to misunderstand the nature of an estoppel. As I have already stated several times, estoppel is an equitable and therefore discretionary and somewhat nebulous remedy, and so there is likely to be disgreement as to exactly how it will operate (nevertheless, LC clearly agrees that the argument has legs). However, it seems he doubts the likelihood of the T being able an open-ended estoppel, but then so do I, so we actually agree on that point.

Perhaps he will elaborate.
You misunderstand I'm not being argumentative and I'm not trying to formulate a counter argument. In the light of this new to me NTQ information, I'm seeking clarity on when T can leave without further rent owed which you insist we have yet:

1. lawcruncher doesn't seem to agree with estoppel for S21 (he hasn't commented for S8) and I hope he will clarify if he now agrees with circa a months estoppel having seen the further discussion.

2. You saying estoppel doesn't apply to S8 doesn't make clear if that means T can always reply upon leaving after a S8 even over a month after notice expiry or not. It seems from what you said before S8 goes like the S21, neither bring the tenancy to an end, so what is the import of no estoppel for S8 where T isn't in a position to serve his NTQ and why is there no estoppel for S8? For the S8 can T leave without an NTQ and without rent owed past his leaving date and if so why is this different to the S21 case and how long after notice expiry can T go without incurring more rent owed past his leaving date?

I know S21 and S8 have their differences but they also have similarities as you pointed out, neither bring the tenancy to an end, so I would expect them to work in a similar way over the ending of the tenancy needing a court order or other as you listed above.

As you seem to think all is clear then perhaps you could explain how this works for the S8 as that isn't clear to me ATM having read carefully all the posts here.

agent46
27-03-2009, 21:19 PM
You misunderstand I'm not being argumentative, I'm seeking clarity on when T can leave without further rent owed which you insist we have yet:

1. lawcruncher doesn't seem to agree with estoppel for S21 (he hasn't commented for S8) and I hope he will clarify if he now agrees with circa a months estoppel having seen the further discussion.

I have set out my arguments, and LC has reached very similar conclusions. I think the disagreement between LC and I on the estoppel point is really a matter of degree rather than a significant difference on the applicability of the doctrine to this situation.

However, rather than you or I speculating or reading between the lines, I think we should wait to hear from LC himself.



2. You saying estoppel doesn't apply to S8 doesn't make clear if that means T can always reply upon leaving after a S8 even over a month after notice expiry or not. It seems from what you said before S8 goes like the S21, neither bring the tenancy to an end, so what is the import of no estoppel for S8 where T isn't in a position to serve his NTQ and why is there no estoppel for S8? For the S8 can T leave without an NTQ and without rent owed past his leaving date and if so why is this different to the S21 case and how long after notice expiry can T go without incurring more rent owed past his leaving date?

That's very garbled. I think I know what you're driving at, but if you want me to answer, please could you re-write it a bit more grammatically (but perhaps the paragraphs below answer your questions).


I know S21 and S8 have their differences but they also have similarities as you pointed out, neither bring the tenancy to an end, so I would expect them to work in a similar way over the ending of the tenancy needing a court order or other as you listed above.


OK. V. quickly.

A s.21 notice states that the LL requires possession of the property after a certain date.

A s.8 notice is a notice to the T that the LL intends to take the T to court to seek possession of the property on the grounds that there has been a breach of tenancy.

In short, the s.21 notice could amount to a representation on the part of the LL that the tenant is no longer bound to remain in possession of the property after the expiry date of the notice, and on that basis, if the tenant relies on that representation, the landlord may well (subject to the caveats I have set out elsewhere) be estopped from relying on his strict legal rights to require the T to serve NTQ. A s.8 notice, on the other hand, makes no such specific representations which the T could interpret as releasing him from the tenancy. In effect, a s.8 notice merely reserves the LL's position and acts as a warning to the T that the LL may institute possession proceedings against them after a certain period, and not as a get out of jail free card which releases them from the obligation to serve NTQ.


IN CONCLUSION

I'm sorry I/we cannot offer you the certainty you are seeking. We are simply trying to work the issues through from first principles, applying the law to a hypothetical set of facts, in order to reach the conclusion a judge is likely to reach if such a case were to come before the court. What's more, I/we are doing it at great length (and for free), so a little less of a demanding, badgering tone would be appreciated (again, apologies if I have misunderstood your 'tone').

mind the gap
27-03-2009, 21:26 PM
agent, you have constructed and explained your argument as clearly as humanly possible, but I don't think you will convince this member.

What's the phrase ...'shouting up a drainpipe'?!

Ruth Less
27-03-2009, 21:42 PM
I have set out my arguments, and LC has reached very similar conclusions. I think the disagreement between LC and I on the estoppel point is really a matter of degree rather than a significant difference on the applicability of the doctrine to this situation.

However, rather than you or I speculating or reading between the lines, I think we should wait to hear from LC himself.




That's very garbled. I think I know what you're driving at, but if you want me to answer, please could you re-write it a bit more grammatically (but perhaps the paragraphs below answer your questions).



OK. V. quickly.

A s.21 notice states that the LL requires possession of the property after a certain date.

A s.8 notice is a notice to the T that the LL intends to take the T to court to seek possession of the property on the grounds that there has been a breach of tenancy.

In short, the s.21 notice could amount to a representation on the part of the LL that the tenant is no longer bound to remain in possession of the property after the expiry date of the notice, and on that basis, if the tenant relies on that representation, the landlord may well be estopped from relying on his strict legal rights to require the T to serve NTQ. A s.8 notice, on the other hand, makes no such specific representations which the T could interpret as releasing him from the tenancy. In effect, a s.8 notice merely reserves the LL's position and acts as a warning to the T that the LL may institute possession proceedings against them after a certain period, and not as a get out of jail free card which releases them from the obligation to serve NTQ.


IN CONCLUSION

I'm sorry I/we cannot offer you the certainty you are seeking. We are simply trying to work the issues through from first principles, applying the law to a hypothetical set of facts, in order to reach the conclusion a judge is likely to reach if such a case were to come before the court. What's more, I/we are doing it at great length (and for free), so a little less of a demanding, badgering tone would be appreciated (again, apologies if I have misunderstood your 'tone').
First allow me to apologise for any bad "tone", it was me trying to be clear.

I had thought, before this NTQ discussion, that with both S21 and S8 T leaving upon (or asap after) notice expiry was doing the "right" thing. The S21 position is now clear as you have explained it. But S8 is still a bit unclear to me.

So when served with an S8 T isn't free to leave on expiry of the notice period but should await court proceedings if he isn't in a position to serve his own NTQ (e.g. due to being in the fixed term), is that what you're saying? My origional thought was that in leaving T is sparing L the bother of going to court which at first glance seemed a good thing.

Ruth Less
27-03-2009, 21:57 PM
agent, you have constructed and explained your argument as clearly as humanly possible, but I don't think you will convince this member.

What's the phrase ...'shouting up a drainpipe'?!
I don't think forum members should be criticised for not understanding all ramifications of a new idea at once. As just posted before this thread I thought T should be leaving on S21 and S8 notice expiry, which is still maybe OK for S21 (via estoppel) but not it seems for S8. Feel free to explain what T should do on expiry of the S8 notice period as being clear on this is of benefit to all sides IMO.

agent46
27-03-2009, 22:00 PM
First allow me to apologise for any bad "tone", it was me trying to be clear.

Okey doke. :)



I had thought, before this NTQ discussion, that with both S21 and S8 T leaving upon (or asap after) notice expiry was doing the "right" thing. The S21 position is now clear as you have explained it. But S8 is still a bit unclear to me.

So when served with an S8 T isn't free to leave on expiry of the notice period but should await court proceedings if he isn't in a position to serve his own NTQ (e.g. due to being in the fixed term), is that what you're saying? My origional thought was that in leaving T is sparing L the bother of going to court which at first glance seemed a good thing.

As argued elsewhere, once a claim form for possession has been issued (on either s.21 or s.8 grounds), I would think the LL cannot require the T to serve NTQ, because to do so would be at variance with the relief he is claiming from the court.


I should emphasise that throughout this thread I have been arguing from principle and with reference to the relevant sections of HA 1988 but without looking into the issue in any real depth. My arguments 'feel' pretty sound, but they may be flawed. Also, I have not researched the matter thoroughly by looking for authorities (ie: case law) which support or undermine my opinion. Although I am not aware of any cases that deal with this issue, I may be mistaken. Please bear the above caveat in mind!

Ruth Less
27-03-2009, 22:20 PM
Okey doke. :)




As argued elsewhere, once a claim form for possession has been issued (on either s.21 or s.8 grounds), I would think the LL cannot require the T to serve NTQ, because to do so would be at variance with the relief he is claiming from the court.


I should emphasise that throughout this thread I have been arguing from principle and with reference to the relevant sections of HA 1988 but without looking into the issue in any real depth. My arguments 'feel' pretty sound, but they may be flawed. Also, I have not researched the matter thoroughly by looking for authorities (ie: case law) which support or undermine my opinion. Although I am not aware of any cases that deal with this issue, I may be mistaken. Please bear the above caveat in mind!
OK, so for S8 it seems T is best to either serve his own NTQ or, especially if in the fixed term, wait for the claim form for possession. Getting out on notice expiry (which is I guess the knee jerk reaction) is too soon and could produce a big rent liability.

agent46
27-03-2009, 22:25 PM
OK, so for S8 it seems T is best to either serve his own NTQ or, especially if in the fixed term, wait for the claim form for possession. Getting out on notice expiry (which is I guess the knee jerk reaction) is too soon and could produce a big rent liability.

Yes, I think that is the correct approach.

Ruth Less
27-03-2009, 22:31 PM
Yes, I think that is the correct approach.
Yes especially as there could be a lot of rent owed if a T who is still in the fixed term goes on S8 notice expiry. If T owes all rent in lieu of a NTQ, presumably that is up till the end of the fixed term which could be several months away. So waiting for the claim form for possession could save T those months rent.

Preston
27-03-2009, 23:04 PM
A s.21 notice states that the LL requires possession of the property after a certain date.

A s.8 notice is a notice to the T that the LL intends to take the T to court to seek possession of the property on the grounds that there has been a breach of tenancy.

In short, the s.21 notice could amount to a representation on the part of the LL that the tenant is no longer bound to remain in possession of the property after the expiry date of the notice, and on that basis, if the tenant relies on that representation, the landlord may well (subject to the caveats I have set out elsewhere) be estopped from relying on his strict legal rights to require the T to serve NTQ.A s.8 notice, on the other hand, makes no such specific representations which the T could interpret as releasing him from the tenancy. In effect, a s.8 notice merely reserves the LL's position and acts as a warning to the T that the LL may institute possession proceedings against them after a certain period, and not as a get out of jail free card which releases them from the obligation to serve NTQ.


Hi

I understand agent's argument. The case for estoppel seems clearer in relation to a section 21 notice than a section 8, for the reasons he has given. But with reference to the highlighted section in the quote reproduced above, the following is an extract from the prescribed form for a section 8 notice:

"Your landlord cannot make you leave your home without an order for possession issued by a court. By issuing this notice your landlord is informing you that he intends to seek such an order. If you are willing to give up possession without a court order, you should tell the person who signed this notice as soon as possible and say when you are prepared to leave."

(My emphasis).

Why did the Instrument not say "if you are willing to give up possession without a court order, you should serve a valid notice to quit on your landlord or contact your landlord to agree a date on which you will give up possession" (or words to that effect)? The wording employed does seem introduce the possibility that the tenant would be entitled to leave without such formalities.

Preston

Ruth Less
27-03-2009, 23:12 PM
Hi

I understand agent's argument. The case for estoppel seems clearer in relation to a section 21 notice than a section 8, for the reasons he has given. But with reference to the highlighted section in the quote reproduced above, the following is an extract from the prescribed form for a section 8 notice:

"Your landlord cannot make you leave your home without an order for possession issued by a court. By issuing this notice your landlord is informing you that he intends to seek such an order. If you are willing to give up possession without a court order, you should tell the person who signed this notice as soon as possible and say when you are prepared to leave."

(My emphasis).

Why did the Instrument not say "if you are willing to give up possession without a court order, you should serve a valid notice to quit on your landlord or contact your landlord to agree a date on which you will give up possession" (or words to that effect)? The wording employed does seem introduce the possibility that the tenant would be entitled to leave without such formalities.

Preston
Yes this is why I was asking in the first place, the warnings to tenants of their rent liabilities from the various bodies etc are not good enough IMO.

Best for T to get the end of their rent liability in writing from L before agreeing to leave, or for T to serve NTQ or wait for the claim form for possession.

Certainly I would have easily got caught out before now even after reading this forum on and off for some years, I hope the above recommendations will become the standard advice given out here now for S8 especially.

And perhaps a few Ls reading this can claim a bit more rent than they first thought too.

agent46
28-03-2009, 00:33 AM
Hi

I understand agent's argument. The case for estoppel seems clearer in relation to a section 21 notice than a section 8, for the reasons he has given. But with reference to the highlighted section in the quote reproduced above, the following is an extract from the prescribed form for a section 8 notice:

"Your landlord cannot make you leave your home without an order for possession issued by a court. By issuing this notice your landlord is informing you that he intends to seek such an order. If you are willing to give up possession without a court order, you should tell the person who signed this notice as soon as possible and say when you are prepared to leave."

(My emphasis).

Why did the Instrument not say "if you are willing to give up possession without a court order, you should serve a valid notice to quit on your landlord or contact your landlord to agree a date on which you will give up possession" (or words to that effect)? The wording employed does seem introduce the possibility that the tenant would be entitled to leave without such formalities.

Preston

I must confess I posted the arguments about s.8 notices without having one in front of me at the time. However, I don't think that wording in bold materially alters the position.

Rather than considering what it could be interpreted as, or what, in an ideal world, it should say, lets just look at what it is - it is simply advice to the tenant to discuss the situation with the LL in order that further legal action can be avoided if both the LL and the T are willing to agree a surrender. It is eminently sensible advice because there will be lots of cases where the LL is only too glad to allow the T to leave early in order to avoid the expense and inconvenience of legal action, and that could by way of the T agreeing to serve NTQ (if it is a periodic tenancy), or agreeing a surrender (if it is either fixed term or periodic). Equally however, there will be lots of cases where the LL wants the tenancy to continue if the T remedies the breach, or simply changes his mind about taking possession (a s.8 notice does not set in motion an unstoppable chain of events which inevitably lead to claim for possession).

The wording anticipates the possibility of the LL and the T coming to an agreement to terminate the tenancy without the need for a court order and might even be taken to encourage such an agreement, but I don't think it can be stretched so far as to be interpeted as to make the s.8 notice an unconditional invitation by the LL to release the T from the tenancy, nor for that matter is it capable of raising an estoppel against the LL.

digital
31-03-2009, 11:25 AM
The tenant has contacted me today and, among other things, has told me that he has had some advice from a solicitor that he should claim squatters rights when the Section 21 takes effect. Does this sound like sensible advice?

He's also talking about going to the local authority and claiming Housing Benefit in the hope that they'll pay the rent from now on along with the arrears. Again, does this sound right?

TIA

jeffrey
31-03-2009, 12:28 PM
The tenant has contacted me today and, among other things, has told me that he has had some advice from a solicitor that he should claim squatters rights when the Section 21 takes effect. Does this sound like sensible advice?

He's also talking about going to the local authority and claiming Housing Benefit in the hope that they'll pay the rent from now on along with the arrears. Again, does this sound right?
No (para. 1) and yes (para. 2).

digital
31-03-2009, 12:38 PM
No (para. 1) and yes (para. 2).

Thanks, jeffrey. The LA will pay his arrears? Some good news on this letting at last!

jeffrey
31-03-2009, 12:41 PM
The LA will pay his arrears? Some good news on this letting at last!
No, I didn't say that they will. I said merely that T can ask them if they will!

digital
31-03-2009, 12:45 PM
Ah! Cancel that smile!

A different question then: have LAs been known to pay arrears?