View Full Version : Notice Period
09-04-2006, 18:14 PM
Having had problems with a new tenant, I served a section 21 some three months into the initial term, the repossession date has now passed. The problems cleared and I was happy to let the tenancy continue into a periodic one but now, other problems have surfaced and I have asked them to leave, pointing out that I have already served notice. They stayed on and I have now sent the paperwork to the court. The fourteen day period for them to respond is not yet up so I don't know if they are going to reply to this or not.
My question is, have I missed anything? I have no problems with the paperwork but from reading some posts it seems that a further notice period may be required as I did not act immediately after the date on the S21. Also, I believe the only defence they may have is hardship, is this correct, there are plenty of similar houses to let in my area so in theory at least, they should not have a problem getting a new place.
09-04-2006, 19:11 PM
My question is, have I missed anything? I have no problems with the paperwork but from reading some posts it seems that a further notice period may be required as I did not act immediately after the date on the S21.
The S.21 in valid indefinitely.
Also, I believe the only defence they may have is hardship,
That's not a defence, but the judge may give a little more than the usual 2 weeks before repossession date.
is this correct, there are plenty of similar houses to let in my area so in theory at least, they should not have a problem getting a new place.
09-04-2006, 20:00 PM
There might be difficulties if the tenants can prove they had been allowed to stay at the property after th end of the fixed term. If Mr Woof issues proceedings then a court might decide the action of agreeing to a periodic tenancy was tantamount to withdrawing the S.21 Notice. You can't serve a S.21 Notice and then say, it's okay I'm not going to take steps to evict you yet and you can stay on, but I might in the future. L & T law doesn't work like that!
09-04-2006, 23:30 PM
You can't serve a S.21 Notice and then say, it's okay I'm not going to take steps to evict you yet and you can stay on, but I might in the future. L & T law doesn't work like that!
Eh :confused: I thought that's exactly what landlords do, see MrSheds comments in this thread and those in the housepricecrash thread he links to.
It is common practice with many letting agents(indeed some would say good practice, myself included) to issue a Section 21 at the beginning of the tenancy to prevent delays at the end SHOULD the landlord wish to evict ASAP after the fixed term. However, if a S21 is issued in this way it should usually be explained to the tenant that this is exactly what it is for....a safety net, rather than guaranteeing to evict at the end of the fixed term. It does reduce the potential security of tenure for a tenant, but not massively, and if explained properly there is no reason for panic with tenants.
This S21 will remain valid indefinitely after the fixed term(the true indefinite time allowed has never been tested thoroughly in the courts, but there is no reason in law, or practically in the courts, why such a notice could not remain valid for many years after the fixed term has expired).
There is nothing to say that a S21 must be acted upon at the end of the fixed term of an AST(and before a SPT has begun) for it to remain valid. Saying they can stay on is simply extending the current tenancy into a statutory periodic one, and as such the S21 would remain valid for the duration of the SPT. Had the landlord offered a new 6 month fixed term however, the notice would be invalidated.
09-04-2006, 23:47 PM
I must say that is what I thought. However, I would probably be more inclined to takes Paul's advice than mine, he knows what he is talking about a lot better than me!
10-04-2006, 11:14 AM
Just to clarify. If a landlord informs a tenant that at determination, as specified within the S.21, he has decided not to "action" the Notice, then a tenant might feel extremely insecure if the S.21 Notice was to be invoked at anytime thereafter at an unknown date.
Courts will expect a landlord to take action within a reasonable period of it becoming effective, and certainly not by contacting the tenant to say that he is going to "leave it for the time being". It would be a credible defence by the tenant to ask the court to void the S.21 Notice as it would be tantamount to making the tenant feel insecure, and that would be potential harassment under the Protection from Eviciton Act 1977.
Landlords must be clear if they want to evict a tenant, as the Notice must be without reservation and unequivocal. Any move by the landlord to suggest to the tenant that he might not do so, is within the parameters of possibly voiding the Notice.
I appreciate a S.21 has no time limit but courts expect landlords to abide by the spirit of the law as well as the letter!
10-04-2006, 12:25 PM
This does seem to be contradictory;
Last week the ARLA/NAEA joint exam board met and I ran this scenario past three of them who were:
Adrian Turner CEO - ARLA
Pauline Makepeace - Senior Lecturer in Housing Law - Reading University
Judienne Wood - ex Bradford & Bingley Lettings & Management Training Officer
They were quite adamant there was no time limit on a S.21 being valid (Law Student's correct assertion), and if a judge had decided a S.21 should be acted upon within a reasonable time (Andy Parker's opinion), then the judge was wrong; they also went on to say that judges often lacked knowledge of the subject on which they were presiding so left any such incorrect ruling open to appeal. As judges can more often than not be pompous and arrogant this didn't help matters; also they are not known for admitting mistakes.
I hope this clarifies the opinions posted!
P.S. Oaktree clearly had a sense of humour failure, but never mind!
For an S21 notice served during the fixed term it does not matter what date it ends on provided it is not during the fixed term and gives at least 2 months notice. So your original notice will not be struck out. Also, the tenancy automatically continues after the notice has expired if the tenant stays in place, and it continues until a court grants possession, so what you are accepting continues to be rent, not mesne profits (although it doesn't matter what you call it).
And no court would criticise you for giving your tenant a reasonable time to comply with the notice before taking legal action, so the fact that the notice expired 6 months ago does not matter. After all, as you will remember from the story Aesop wrote about you, there's no point haring around when it's slow and sure that wins the race. :)
Andy is wrong. There is no time limit on issuing proceedings. I know of one case where possession was granted under the accelerated procedure on the basis of a notice that had expired several years before.
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