Can tenant simply leave once s.21 Notice received?

[roger_roger]

I've just been dealing through a new letting agent who tell me that as I've received a S.21 from my current landlord's agent giving me 2 months notice on my present property which is periodic, I can walk away without having to pay any more rent and take up my new property immediately.

The agent has referred this to a barrister just to check and he has agreed with them that this situation is correct.

As I only received the S.21 Notice the day before the rent was due, it didn't give me time to serve one month's counter notice on the landlord.

Is the agent right?

[dazalock]

Erm, no. A s21 is served by the landlord to get possession of the accomodation back. This can be served two months before the end of a AST or at any time giving 2 month notice if the tenancy has fallen into a periodic tenancy, i.e. a new AST has not been drawn up. If you are still bound by the AST, i.e. the end date is 2 months away, you are still liable for the rent to that date, you can give notice within the tenancy, which the landlord must accept, but you may be liable for rent whilst he looks to replace you. If you are now in a periodic tenancy you should be able to give a months notice and leave on a specified date, no matter if the landlord has served a S21.

At least thats how I understand the situation.

[Paul_f]

I happen to think the barrister is right here!

The landlord has to give a minimum 2 months notice to say he wants his property back, fine! If the tenant, realising he has to seek alternative accommodation, finds something immediately, the new landlord will want him to take possessison as soon as possible.

Why the tenant is able to walk-away from the old agreement is that his landlord cannot give less than 2 months notice, that is not to say he wouldn't want it sooner because he has made up his mind he wants the property back anyway. The landlord therefore can't have it both ways; he is restricted by the statutory requirement of serving a S.21 Notice saying he wants his property back but has to wait up to 2 months. There is nothing in the law that states the tenant must wait that length of time.

Dazalock should consider a barrister is likely to know more than any of us posting here. :rolleyes:

[P.Pilcher]

Aha! there was me writing a post in support of Dazlock but querying why our opinion should disagree with somebody who knows so much more about such things than us when Paul F posts the answer!

P.P.

[dazalock]

OK, but I thought I had said that, to summarise my points:

If the tenancy is within the confines of the AST and the LL has given the S21 2 months before the end of the AST, then the tenant needs to run to the end of the AST and then MUST leave.

If the tenancy is now periodic, and a S21 is served, the tenant could counter with a months notice.

In both cases leaving earlier would allow the LL to sue for unpaid rent and expenses if a replacement is not found.

Paul, are you saying he does not even have to give a months notice? and how do you know Im not a barrister, or at least a barrack room lawyer.

[davidjohnbutton]

But presuming this "walk away" situation would not be the same if the notice was served within the fixed period. (i.e. 12 months tenancy with no break clause and landlord serves 2 months notice under S21 at the 10 month point)
I assume that the tenant would still be bound for the full 12 months in my example? Correct Paul? Your assertion posted above only applies to a periodic tenancy where the tenant is given 2 months notice OUTSIDE the fixed term which has by then become a periodic one?

[zoe]

dazalock

paul is saying that the LL and tenant COULD agree to terminate the tenancy on any day they please by mutual agreement.

Zoe

[zoe]

roger roger

you can only walk away if the LL agrees to let you do this. If he does not agree an early termination (and it is not clear from your post that this is the case - despite what paul has posted) then you have to pay rent until the 2 months expire.

Zoe

[dazalock]

Zoe, not sure if thats true, having thought about this, I think I see Paul's Point. Basically the LL wants possession, but by law HAS to give 2 months. Now if the Tenant says ok squire im off tomorrow, the courts would consider that the LL has got what he wants only faster. Also, with the Tenant having to find somewhere else to live because the LL has decided to evict, the court will side on the side of fairness.

See, thats what this forum is for, a good discussion

[Jennifer_M]

Can you imagine a tenant who's been asked to find a new home within two month trying to find another property where he can move in exactly on the day the 2 months expire ?

[Andy Parker]

I think the agent has outwitted all of you (some of them will say anything for their commission).The temant still has to give a month's notice.If I wanted my tenant to leave today I would have served the s21 over two months ago.If I want the tenant to leave in two months I would have issued the s21 some time ago.If I want my tenant to leave in six months I might well issue the s21 now.This does not mean the tenant can leave whenever he feels like it without notice.

[Jennifer_M]

I'm not sure I agree there.. If I remember correctly a s21 says that the LL requires possession on or before x date. So if the tenant moves out before and hands the keys back that should be it. You can't expect a tenant to find a property were he can move in exactly at the end of the 2 months and it would be rather unfair for tenants to have to pay double rent for any period of time just because the LL has decided to move on.

I don't know the legality of this but you either want your property back or not.

Would be interesting to know for sure what the law would say.

[Andy Parker]

The expiry date on a s21 is an AFTER date.The legal position is that a month's notice is required from the tenant.There is no reason why an s21 notice should change that.The fact that the tenant regards LL notice of two months insufficient is irrelevant to the law.I think the agent is 'mistaken' in this case (we all have to earn a living).

[dazalock]

Its not that it insufficient, its a case of the tenant losing a alternate home because he has found somewhere to live before the 2 months are up, or may even have to pay double rent for that time. If the LL chased that in court, would the judge not say, well the LL has got what he wanted, a empty flat?

Not saying I know, just try to interperate what Paul said.

[Andy Parker]

The logic is flawed.The LL does not want possession until the expiry date.The tenant can give a month's notice if he finds this more convenient.It is likely that no date will be ideal for both LL AND tenant.I am a LL and wherever possible give as much notice as possible out of courtesy.If I issue a s21 for possession in six month's time I do not expect the tenant to leave without any notice (nor would it be contractually correct for the tenant to do so).I do not want an empty property until the expiry date but accept that the tenant may give a month's notice earlier than this.I can't see any serious objection to this system - being expected to work around fixed dates seems usual to me.

[Paul_f]

I see Roger has opened a can of worms here but I will now come back.

Please note that I have answered the poster's question quite straightforwardly, and he gave the facts very well. There is really no need to go into the ifs , buts, whys, and wherefores, as there aren't any. DJB has said that if the notice was served within the fixed period...........but it wasn't, but he is quite correct in that the tenant has to remain there within any fixed term if the landlord requires it.

Andy Parker!!! No, you're not thinking this through as you will not be able to find anything within the Housing Acts to say the tenant MUST remain at the property during the two months notice period in respect of a periodic tenancy only when a S.21 is served by the landlord on him and pay the full rent for that period! If you re-read my first post the logic is there. The tenant is only obliged to give a month's notice on a periodic tenancy if he serves one on the landlord to say he wants to leave by choice. The counter notice to which you refer is therefore superfluous and not required to be served by the tenant.

I have checked this with an eminent lawyer who specialises and teaches the subject on behalf of ARLA/NAEA. There is nothing about which to argue. The reasoning is based on lawful interpretation and not emotion.

I might add that the agent to which Roger referred did in fact repay his rent for the unused portion of the notice period on advice from their own solicitors. How do I know? Just say I had inside information! (Actually I know the agent).

[Andy Parker]

If the tenant has left early he has left by choice.The LL wanted him to stay and pay rent.I have asked my mother about this who agrees with me.

[clangnuts]

We found ourselves in this exact situation - where the LL issued a s21, and then when we found a house to move to, we needed to complete on the new house quickly as it was all we could find and afford in the area.

The LL seemed shocked and very unhappy that we weren't willing to stay on until the exact date of the end of the periodic tenancy as stated in the s21. They wanted to sell the house AND still get 2 months more rent out of us, something which we could not afford to do.

The solution - we moved into the new house, did not pay the last 2 months rent wrote to the LL instructing them to keep the deposit and posted the keys back to them.

I didn't want to end the tenancy like this, but we had little choice. The LL was being greedy - wanting us out to sell, but still wanting £800 in rent in the meantime!

Clangnuts

[Jennifer_M]

If the tenant has left early he has left by choice.

Not exactly.. He left because the LL told him to find a house within 2 months to move out, and he found a house.

Andy, are you saying that if your tenant loses an opportunity of renting another property because the new LL is asking him to start the tenancy 3 weeks before the end of your 2 months (and he can't aford 2 rents for 3 weeks) and then can't find another house you'll gladly accept for your tenant to stay longer so he can find a house ?

I think not...

So basically you are saying that because YOU want your tenant to move out, causing HIM inconvenience and moving cost, it should cost HIM double rent if he manages to find a new home before it's convenient for YOU because you want to squeeze ever last penny out of HIM ?
Nice...

[zoe]

clangnuts

how is that greedy. It is the nature of renting. The notice given by each party is to terminate the contract, giving notice of a forthcoming termination is NOT the same as terminating early.

I do not agree with Paul I beleive that the tenant should be liable for rent until the end of the AST. I personally have been in this situation more than once and have paid the rent until the last day.

Zoe

[dazalock]

"The reasoning is based on lawful interpretation and not emotion."

So its not wether you agree or not, its about the law. I however dont agree with you Zoe, Glangnuts is right, it was gready, the LL wanted to sell, fair enough, but he also wanted the extra few quid in addition to the money made from the sell. Im no soft touch, but, I feel for the tenant who, through no fault of his own, is now in a position where he could be paying double rent, or face being homeless becasue he couldnt find a place on the exact day he was supposed to move. Its no wonder that people find it hard to afford to live, and whats more, this is why LL's have got a very bad image. :mad:

[Andy Parker]

Paul - Do you have any case law to support your interpretation?The only case law I have seen seems to contradict this despite your implacability.

Jennifer,dazalock - I agree with Zoe the tenant is only being asked to respect the notice period.The tenant has the opportunity to halve the period by giving notice themselves at the outset.I don't think it is reasonable for the LL to have to work around a date anytime within the 2 months without notice and bear the brunt of the costs involved.It is not about greed just fairness (the LL cannot suddenly throw out a tenant who has given notice because he (the LL) has found another tenant so why should it be ok the other way around?).

[Paul_f]

If the tenant has left early he has left by choice.The LL wanted him to stay and pay rent.I have asked my mother about this who agrees with me.

At the risk of repeating myself Andy..............

By serving the S.21 notice the landlord does in fact want the tenant to leave; he is not saying he wants him to leave in two months time - that's where your misinterpretation kicks-in. It's just that he can't ask the tenant to leave earlier by law. It is not a conditional notice; all it does is give the tenant two months if he needs it to find alternative accommodation or to leave at the expiry of the notice. If a tenant finds somewhere else quickly it would be a breach of his rights to deny him that right, as you as landlord have asked him to leave. It's unfortunate on the landlord that he could well lose some rental income, but it enables him to either find another tenant or have his property back sooner rather than later. Remember it doesn't mean to say what happens is necessarily fair, as it often isn't.

Is your mother in the legal profession? The ruling I have is from an eminent solicitor who specialises in L & T & housing law who I trust to know these things. I also have access to academics within NAEA & ARLA who do this for a living and nothing else. As I have said, there is nothing within the Housing Acts that states the tenant must honour the time factor in the S.21 notice when the recipient of such notice from the landlord.

Your argument doesn't stand up. You say in your post that the case law you've seen supports your case, but I hope it isn't the Arundel v Khokher case where the tenant failed to give a month's notice on a periodic tenancy and the judge ruled that they had to (the landlord had not required possession in the first place!). I'm familiar with that one.

[dazalock]

Yeah but no but yeah but no ........

Law is Law, morality we are going to have to agree to disagree.

[Andy Parker]

What has been posted by Paul as law has no authority without supporting case law - it is just opinion.

[Paul_f]

I agree - it's only an opinion.................but it isn't just mine......and
It's based on sound lawful procedures according to a barrister & solicitor...............and
Case Law doesn't support every opinion as in most instances it doesn't exist, it only occurs when a dispute is settled in court. The test of reasonableness will also apply, so is it reasonable to make the tenant pay rent for two months if he has found alternative accommodation.....no!......and there's nothing to say he must!


I would also ask again where does it state in any of the Housing Acts that the tenant must honour the landlord's notice period in the S.21 notice? It ain't there I can tell you!

I can see I'm not getting anywhere, you might not want to believe me but you seem to be ignoring legal opinion.

[orph]

I am currently in this exact situation, except I have overpaid rent (2 weeks).

I am preparign a small claims form against the landlord for this amount - has anyone got any good templates etc?

Thanks

[Poppy35]

Orph - sorry i cant answer your query.

Just read this post from start to end (not spotted it before) and when reading it initially it made me doubt my own thoughts on the process.

Therefore delighted to read Paul F post which i totally agree with. We frequently have landlords ask us to give tenants S21 notice and very often the tenants then give one months notice within that period as they have managed to secure alternative accommodation. The landlord cant have his cake and eat it and if selling the property it means yes he has no rental income coming in but does have possession before the end of the S21 so happy happy all around!!

[Miffy]

I was surprised to read the opinion that the T can move out without notice once the S21 is served, as the S21 states "I require possesion AFTER..." (not "as soon as possible but not later than....").

However, if I was serving an S21 on a T I would not care if they left sooner rather than later as I would want them to leave for a reason!

Presumably the T would still have to inform me when they were moving out and make arrangements to hand back keys etc, so I would always have a small amount of notice. What would be likely to be reasonable notice by the T? Surely they couldn't just post me the keys one day and say "hey, we've gone-please refund unused notice rent money from yesterday"?

Or could they?

[Bel]

Sounds like they could just do that!