A tries to dictate letting terms to L on new AST

[tubbs]

hi people

got a new T moving in next week, the agent is doing the usual T find deal and they usually issue a S21 as standard. However I asked if they could not do this as I would like the agreement to go onto a periodic basis after the initial 6 months, then its a case of 30 days from the T or 60 days from me, and if i choose to end after the 6 months I would issue the S21 myself 60 days before the 6 month AST is due to end. My thinking is that should the T become a problem I wont be tied in for a period of 6 months all of the time.

The agent however said that the S21 should still be issued, and even after the 6 months is up I still have to give 60 days notice and the T 30. I thought that if the S21 has been issued, and no new contract signed, then although it becomes periodic as long as rent is paid, are we in a state where the T can basically up sticks with no notice, or even I ask them to leave with no notice, because the S21 date would have passed?

Thanks.

[jeffrey]

You are L. Agent must obey your instructions, not vice-versa! You/they can serve s.21 Notice whenever you like. As a rule, there's not much point serving it earlier than soon before the last two months of a fixed-term AST.

[Ericthelobster]

The agent however said that the S21 should still be issued, and even after the 6 months is up I still have to give 60 days notice and the T 30. I thought that if the S21 has been issued, and no new contract signed, then although it becomes periodic as long as rent is paid, are we in a state where the T can basically up sticks with no notice, or even I ask them to leave with no notice, because the S21 date would have passed?That's my understanding, yes. Plus you may have understandable bad feeling from the tenant when he's issued with the S21 on day 1, too.

This is most likely about the agent wanting his cut at 6 months when he convinces you that "actually it would be best to issue a new agreement now"... make sure the agreement is worded so that is not necessary if your intention is simply for the tenancy to go periodic.

(For my first ever let, back when I was young and green, and used an agent, the tenant and I both got charged firstly for renewing an agreement for a 2nd 6th months, and then subsequently for a 3rd 'agreement' which stated that the tenant was now on an indefinite month-to-month contract... :mad:)

[tubbs]

this seems to be the way this agent works, whereas another i have used does it 2 months before the AST if i want.

yes i agree its probably so they can charge for another contract, which of course i dont want to pay lol. i will instruct them not to do one i think. i did read a while back about sending a letting withdrawing the s21 but maybe the watertight solution is just not to serve one at all.

going back to this agent as they do a rent guarantee in the costs and the other doesnt, which has cost me this time :(

[havensRus]

Jeffrey made valid point - the Agent should obey your instructions, not vice versa.

Besides, S21 should not be issued before the deposit is protected - assuming there is a deposit. Don't forget to ask Agent for proof of protection of the deposit.

[PRS]

Entirely agree that this is poor practice from agent (or anyone in fact). There is a good argument that the S21 is not/cannot be validly served until after the Deposit is protected.

Secondly, if its all being done in the office at the same time it is possible for the tenants to argue (unless the documents are time stamped) that they signed for or were served with the S21 before they signed up to and or the AST was legally executed - so no tenancy existed when it was served so the S21 is invalid.

[tubbs]

thanks for the replies some interesting points learned.

[theartfullodger]

PRW stated

There is a good argument that the S21 is not/cannot be validly served until after the Deposit is protected.

Well, yup Housing Act 2004 Section 215

215 Sanctions for non-compliance

(1) If a tenancy deposit has been paid in connection with a shorthold tenancy, no section 21 notice may be given in relation to the tenancy at a time when—

(a) the deposit is not being held in accordance with an authorised scheme, or

(b) the initial requirements of such a scheme (see section 213(4)) have not been complied with in relation to the deposit.

(2) If section 213(6) is not complied with in relation to a deposit given in connection with a shorthold tenancy, no section 21 notice may be given in relation to the tenancy until such time as section 213(6)(a) is complied with.

(3) If any deposit given in connection with a shorthold tenancy could not be lawfully required as a result of section 213(7), no section 21 notice may be given in relation to the tenancy until such time as the property in question is returned to the person by whom it was given as a deposit.

(4) In subsection (3) “deposit” has the meaning given by section 213(8).

(5) In this section a “section 21 notice” means a notice under section 21(1)(b) or (4)(a) of the Housing Act 1988 (recovery of possession on termination of shorthold tenancy).

Seems fairly clear?? Doh! Silly me, I'm unqualified and cannae see the problems....

Cheers!

Lodger

[tubbs]

bump.....

good point made by the lodger there which i can see easily..... however there has been a bit of a development.

T signed last friday, no s21 was issued as per my instruction, i've heard i've been talk of the agents office lol. they seem concerned about no s21 being issued.

i forgot to quote about the S21 being served until the deposit has been protected but i did say that if the s21 is served but we go onto a periodic then T can walk with no notice at any point after that, and vice versa of course, as well as if they are not time stampted etc etc. however the agent argues that 20 days notice must still be given by the T.

one of the main reasons i went back to this agent is that they have a rent insurance scheme, homelet I think, who they say will not pay out any claim if no s21 was issued, they also say that if the T didnt pay rent i couldnt issue an S8 as no s21 has been issued (that point i dont think is right, u can issue a s8 without s21 surely), anyway the main point is about the insurance scheme, i dont want the company to turn round in a few months an say "ah well no s21 has been issued so we're not paying up" etc.

thoughts please, always appreciated

[jta]

bump.....


one of the main reasons i went back to this agent is that they have a rent insurance scheme, homelet I think, who they say will not pay out any claim if no s21 was issued, they also say that if the T didnt pay rent i couldnt issue an S8 as no s21 has been issued (that point i dont think is right, u can issue a s8 without s21 surely), anyway the main point is about the insurance scheme, i dont want the company to turn round in a few months an say "ah well no s21 has been issued so we're not paying up" etc.

thoughts please, always appreciated

Are you sure about using agents that do not know the basics.

[tubbs]

Are you sure about using agents that do not know the basics.

yes even i see that as basic stuff but the last agent i used really dropped me in it, i think they were negligent with vetting a T who left me out of pocket so i returned to this one. they insist that every AST they issue is also done with a S21.

As much as i think the agent dont seem to have it right its really all about the insurance side of things, i dont want the insurance company to knock back any future potential claim, i am dur to discuss it further with them on wednesday.

[tubbs]

just remembered another thing the agent seems certain of, they insist that an s21 can only be valid or served IF signed by the T, thats why they do it at the beginning, of course this is rubbish isnt it? it can just be served by post i think.

[jeffrey]

No. as long as L can prove service on T, it's unnecessary to show a copy countersigned by T.