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mjbfire
12-03-2010, 22:44 PM
This is just a general E&W question, as we never had to use an s21, i wonder if anybody can answer these questions.

It's sort of a follow on from another S21 post by somebody else.

When we do an initial 6 month AST, we also serve them with a S21 as a precaution which expires after the initial 6months and then normally allow them just to go SPT. But currently don't serve them another S21, when the initial one goes invalid.

If we do issue another s.21 at the start of the SPT,

1) After 2 months can we go anytime to court to get an order, ie. 2-3 years later, and if not how long after you issue the s21 you must use it?

2) Can the T use the excuse 2-3 years later that you gave them notice and therefore can leave anytime without giving any notice or mid month?

3) Is there any other practical or legal reasons why you shouldn't issue a s21 when a T goes into a SPT, untill you need it.

havensRus
13-03-2010, 06:51 AM
When we do an initial 6 month AST, we also serve them with a S21 as a precaution which expires after the initial 6months and then normally allow them just to go SPT. But currently don't serve them another S21, when the initial one goes invalid.


1. S21 correctly served does not become "invalid" unless and until you issue a new AST. Once properly issue, it stays valid, even during the SPT.

2.do you take a deposit? If so, do you protect the deposit BEFORE issuing the S21?

If the S21 is issued before the deposit is protected, then that S21 is NOT served properly and therefore not valid in the first place.



If we do issue another s.21 at the start of the SPT,

No need to serve S21(4)(a) if the S21(1)(b) was served correctly



1) After 2 months can we go anytime to court to get an order, ie. 2-3 years later, and if not how long after you issue the s21 you must use it?

2) Can the T use the excuse 2-3 years later that you gave them notice and therefore can leave anytime without giving any notice or mid month?

3) Is there any other practical or legal reasons why you shouldn't issue a s21 when a T goes into a SPT, untill you need it.

1. Yes, anytime after it becomes effective (expires being the common term used). But you give them courtesy warning that you wish them to leave.

2. No, T still has to give you notice properly, so long as the notice is at least one month and ends on the last day of a period of the tenancy.

3. There's no requirement to issue another S21 because a tenancy continues into a SPT. If you issue one in the SPT, make sure its a S21(4)(a).

On a practical level, the T may have forgotten about the notice in the first place, if it was served 3 years prior. That doesn't invalidate it though, and you can still ask the court for a possession order based on it.

You could serve another one, if you think there might be trouble.

If you haven't served one before, then dont wait until you need it, before serving, because serving the notice is just the start of possibly 4-6 months of trying to get them out. Serve the notice as soon as you sense there might be trouble ahead. If LL-T relationship has broken down by the time you serve the notice, you are leaving yourself open to stress and possibly serious financial loss in that period.

Mrs Mug
13-03-2010, 06:59 AM
Is there any other practical reasons why you shouldn't issue a s21 when a T goes into a SPT, untill you need it.



If I was a tenant, I would start looking for a new property the instant I was issued with an S21. So if your aim is to have a constant churn of tenants then keep issuing S21’s even when you don’t want the tenant to leave.

If I was told before signing the initial six month fixed term agreement that I would be issued with an S21 as standard, I wouldn’t even bother to take the property in the first place.

Mars Mug
13-03-2010, 11:01 AM
2. No, T still has to give you notice properly, so long as the notice is at least one month and ends on the last day of a period of the tenancy.

Why? If the landlord has issued an S21 requiring possession of the property, why is the tenant then required to give notice?

If I rented a property for six months, while moving house for example, and saw an S21 on day one I would think that’s fine. At the end of the six months I would just quit, because the landlord has already asked for possession six months earlier. I don’t see why I would need to give notice when there’s already a notice been issued by the landlord.

A search of the forums for ‘Sword Of Damocles’ should give you plenty of other opinions. My suggestion is to wait two to three months into the tenancy before deciding to issue an S21 at which point you might decide that one isn’t needed at all.

mjbfire
13-03-2010, 11:28 AM
Haven,

The deposit is always protected well within the 14 days, I even do it via bacs just to make sure. Many thanks for letting me know that the one in the AST would be still valid, as I can't see the reason for changing my procedure to do another one at the start of the PST period.

Mars Mug,

As I say I already give them a S21 a week after they move in, as I do a intial inventory on day one and then a week later add anything else they notice a week later, and at that time serve them a S21 under its "normal procedure". And I have had nobody move out after six months, but anyway they can move out anyway after the fixed term without notice, whether or not I served them a S21.

Lawcruncher
13-03-2010, 11:42 AM
Why? If the landlord has issued an S21 requiring possession of the property, why is the tenant then required to give notice?

Because a section 21 notice does not bring a tenancy to an end.

Mrs Mug
13-03-2010, 12:15 PM
Because a section 21 notice does not bring a tenancy to an end.

So how is the tenant supposed to know whether or not a landlord really wants him to leave on the expiry date of the S21? Is he supposed to wait until he gets a court summons?

From a landlords point of view, what is the purpose of issuing an S21 so soon after the start of the tenancy? Is it not to be able to end the tenancy at the earliest opportunity, i.e., at six months?

Mars Mug
13-03-2010, 12:46 PM
Because a section 21 notice does not bring a tenancy to an end.

No more or less than notice from a tenant does?

Do you know of any cases where a landlord has issued an S21 early such that the tenancy has passed beyond the required possession date, and subsequently taken the tenant to court for unpaid rent where notice to leave was not given by the tenant?


but anyway they can move out anyway after the fixed term without notice, whether or not I served them a S21.

My view is that because the S21 date has passed they can move out at any time after six months with no notice to the landlord, whereas without an S21 in effect they would be required to give one month’s notice.

Lawcruncher
13-03-2010, 13:27 PM
This has been discussed at length in other threads.

As I see it it is like this:

What was the position before the Housing Act 1988 came into force? It was that a tenant on a periodic tenancy had to give notice to bring the tenancy to an end. Is there anything in the Housing Act 1988 that changed this? No.

havensRus
13-03-2010, 13:41 PM
So how is the tenant supposed to know whether or not a landlord really wants him to leave on the expiry date of the S21? Is he supposed to wait until he gets a court summons?


1. By asking the LL.
Most LL will let the tenancy run into a SPT, unless the T has been a problem during the fixed term.

2. not necessarily. T can leave on or before the last day of the fixed term. Once T stays beyond that day, tenancy becomes SPT, and T must give the statutory notice.




From a landlords point of view, what is the purpose of issuing an S21 so soon after the start of the tenancy? Is it not to be able to end the tenancy at the earliest opportunity, i.e., at six months?

Yes. LL is complying with law by giving the required notice. It doesn't have to be effected. But by issuing it well within the fixed term, LL can take action as necessary to remove problem tenants. Its called "being prepared".

Mars Mug
13-03-2010, 13:43 PM
Yes, the particular thread I am thinking of is this;

http://www.landlordzone.co.uk/forums/showthread.php?t=24950&highlight=damocles

Which to me says that a landlord having properly prepared the S21 early, after deposit protection etc. can in effect start court proceedings after the 6 month period has ended to get a tenant out with no further notice. Isn’t that the whole purpose of the ‘early’ S21?

So I wonder if a tenant can simply leave without notice after that period and not be liable for any more rent payments beyond the day they leave. If the landlord takes the tenant to court for lost rent, isn’t the judge simply going to rule for the tenant because they complied with the S21 notice?

havensRus
13-03-2010, 13:48 PM
No more or less than notice from a tenant does?



If a T gives notice, and changes their mind, T must inform LL and come to an agreement, else T will be liable for double rent from the end of that notice period till they leave (under the Distress for Rent Act)



Do you know of any cases where a landlord has issued an S21 early such that the tenancy has passed beyond the required possession date, and subsequently taken the tenant to court for unpaid rent where notice to leave was not given by the tenant?

That would happen only if T did not pay rent.




My view is that because the S21 date has passed they can move out at any time after six months with no notice to the landlord, whereas without an S21 in effect they would be required to give one month’s notice.


Wrong.
Your view and the law are two different things.

The T can leave on or before the last day of the fixed term without notice, but its common courtesy to let LL know that's what is intended. T is contractually bound to pay rent up to last day of fixed term.

If T stays on even one day after, the tenancy becomes SPT, and T MUST give the one month notice to end on the last day of the period (month or week or quarter) of the SPT, irrespective of whether or not the LL has issued a S21.

Mars Mug
13-03-2010, 13:56 PM
Yes. LL is complying with law by giving the required notice. It doesn't have to be effected. But by issuing it well within the fixed term, LL can take action as necessary to remove problem tenants. Its called "being prepared".

There are several reasons why a landlord might want to remove a tenant, good or bad. If for example a landlord wants to sell up after 15 months then they can get the tenant out with no further notice, (but may have to go to court). But it’s suggested here that if the tenant wants to leave after 15 months they are still required to give a month’s notice even though they are living on the ‘borrowed time’ of the S21.

Most tenants on this forum seem to struggle to have any contact with the landlord, and only have dealings with the agent, I would not be satisfied to hear an agent simply say it’s standard practice to protect against bad tenants.


If T stays on even one day after, the tenancy becomes SPT, and T MUST give the one month notice to end on the last day of the period (month or week or quarter) of the SPT, irrespective of whether or not the LL has issued a S21.

So the landlord is not required to give any further notice, but the tenant is?

In the ‘normal’ way an S21 is issued the tenant is told that possession is required after a particular date. When that day arrives and the tenant has not moved out are they still required to give a months notice?

Has any of this been tested in court?

havensRus
13-03-2010, 14:00 PM
Which to me says that a landlord having properly prepared the S21 early, after deposit protection etc. can in effect start court proceedings after the 6 month period has ended to get a tenant out with no further notice. Isn’t that the whole purpose of the ‘early’ S21?

Yes. But you will find that as a matter of courtesy, LL will remind T well beforehand, that possession of property is required, at end of fixed term. Usually, only if T has been a problem during that fixed term.



So I wonder if a tenant can simply leave without notice after that period and not be liable for any more rent payments beyond the day they leave. If the landlord takes the tenant to court for lost rent, isn’t the judge simply going to rule for the tenant because they complied with the S21 notice?

the "after" is the issue. T can leave before or on last day of fixed term. SPT starts next day after fixed term. As I previously pointed out, once T stays on in SPT, the SPT rules apply.

havensRus
13-03-2010, 14:10 PM
But it’s suggested here that if the tenant wants to leave after 15 months they are still required to give a month’s notice even though they are living on the ‘borrowed time’ of the S21.


The S21 is a notice. The contract is the AST, and that's what matters. The terms and conditions of the AST carry on into the SPT - unless varied at the start of the SPT. There's no "borrowed time of S21". The tenancy is in a periodic phase, period being one month, one week or quarter, as defined by the original and still valid AST.


Most tenants on this forum seem to struggle to have any contact with the landlord, and only have dealings with the agent

Unfortunate. T is entitled by law to ask for and be given LL details.
I deal directly with my tenants, and even when I've used A to find tenants, its my AST that is used (in most cases), and even if its theirs, its my contact details on it.



In the ‘normal’ way an S21 is issued the tenant is told that possession is required after a particular date. When that day arrives and the tenant has not moved out are they still required to give a months notice?

Has any of this been tested in court?

1. Yes
2. Dunno. You could try it.

If a T stays on into SPT, I bill them for the month/weeks rent, and expect them to pay for it. If they don't, then I take appropriate action.

I think there's a bit of splitting hairs going on here, but I might be wrong.... ;)

Mars Mug
13-03-2010, 14:11 PM
1. Yes. But you will find that as a matter of courtesy, LL will remind T well beforehand, that possession of property is required, at end of fixed term. Usually, only if T has been a problem during that fixed term.

2. the "after" is the issue. T can leave before or on last day of fixed term. SPT starts next day after fixed term. As I previously pointed out, once T stays on in SPT, the SPT rules apply.

1. I don’t see the ‘Sword Of Damocles’ early S21 as in any way courteous, and we know full well from postings on this forum that a landlord’s intentions are not always made clear to the tenant.

2. In the normal issuing of an S21, say after 15 months and well into the SPT, you are saying than after the S21 is issued, but before it ‘matures’ the tenant is still required to give a month’s notice?

At less than one month from the date stated in the S21 is the tenant still required to give one month's notice? If the tenant gives notice the day before the S21 date can the landlord still take them to court or does he then have to wait until the tenant’s notice has also expired?

tom999
13-03-2010, 14:20 PM
From a landlords point of view, what is the purpose of issuing an S21 so soon after the start of the tenancy? Is it not to be able to end the tenancy at the earliest opportunity, i.e., at six months?Not necessarily; it's sometimes used by LL's to reduce risk, and does not have to be enforced at all. This can be explained to the tenant before the tenancy commences, i.e. if rent is paid and property looked after, then tenancy will continue, but if there are problems, then s.21 will be enforced. It's not advisable for anyone (LL or T) to agree to anything without reading/understanding the agreement/notice first.

For example, for HB/LHA tenants (I know of Housing Associations which serve a s.21 at the start of the tenancy, so it's not just private LL's), who may be seen as greater risk than employed tenants. If they stop paying rent, it can be difficult to recover any losses (property damage/rent arrears).

Mrs Mug
13-03-2010, 14:31 PM
Not necessarily; it's sometimes used by LL's to reduce risk, and does not have to be enforced at all. This can be explained to the tenant before the tenancy commences, i.e. if rent is paid and property looked after, then tenancy will continue, but if there are problems, then s.21 will be enforced.

If an S21 has been served at the start of a tenancy, if a landlord now wants possession for any purpose, does he have to give the tenant any notice or can he proceed straight to court?

tom999
13-03-2010, 14:36 PM
If an S21 has been served at the start of a tenancy, if a landlord now wants possession for any purpose, does he have to give the tenant any notice or can he proceed straight to court?Providing a valid s.21 notice has been served and has subsequently expired, then the LL can apply for a court order.

Mars Mug
13-03-2010, 14:37 PM
Providing a valid s.21 notice has been served and has subsequently expired, then the LL can apply for a court order.

So is the tenant still legally required to give a months notice when the summons arrives?

tom999
13-03-2010, 14:42 PM
So is the tenant still legally required to give a months notice when the summons arrives?No. If the tenant receives a court order to leave on a specific date, then they can just leave, however they may also be liable to pay costs, depending on what exactly the court has ordered.

mjbfire
13-03-2010, 14:45 PM
As I said earlier I have not had to go though the process, but I guess it would take 3/4 weeks to get a court and even then the T can ask the court to give them more time to move out or submit a counter defence.

But if they been a good tennant, to find another place shouldn't be hard and as a LL I would give them enough time to find a place, other than having a fight and have to go to court.
So the S21 is just in case of a bad T, in which case I think it's quite right, to be able to get the P back as quickly as possible, and using the S21 as a backup, as if a bad tennant, I guess I would be submitting a S8 as well.

Also I think the majority(Not all) of T, who walk away because you tell them you be serving a s21 at the beginning, as per people who walk away when they know you are going to do credit/ref checks, they know, you know, the system and less likely to get away with cheating you, and therefore don't go though with the tennancy. Which I guess is why I have only had one bad tennant, who was got from an agency years ago(Now gone), who didn't do this.

So if Mars suggesting it's morally wrong to issuing a S21 before anything goes wrong, i disagree. I now think, it's better to be prepared, than being caught with your trousers down. Which basicily why I started this thread.

Mars Mug
13-03-2010, 15:07 PM
No. If the tenant receives a court order to leave on a specific date, then they can just leave, however they may also be liable to pay costs, depending on what exactly the court has ordered.

Surely the court order is some time after the summons has arrived, when the court has found in favour of the landlord?

So does that mean that where the landlord has not taken the S21 any further then if the tenant chooses to leave they are legally abliged to give a month’s notice, but if the landlord has taken things further and the tenant has resieved a summons then they are no longer required to give a month’s notice?


So if Mars suggesting it's morally wrong to issuing a S21 before anything goes wrong, i disagree. I now think, it's better to be prepared, than being caught with your trousers down. Which basicily why I started this thread.

The only moral issue I see is where the landlord issues an early S21 to avoid a later notice period, but at the same time is still expecting the tenant to abide by a notice period if they choose to leave.

mind the gap
13-03-2010, 15:07 PM
So if Mars suggesting it's morally wrong to issuing a S21 before anything goes wrong, i disagree. I now think, it's better to be prepared, than being caught with your trousers down. Which basicily why I started this thread.

It does not take superhuman powers of organisation validly to issue a s21 two months before the end of the fixed term rather than at the outset and it avoids bad feeling. It is really not that difficult. Any LL or agent who thinks they may not be able to remember to do that, should perhaps consider a career change. They could even have the notice made out ready, then just post it on the appropriate date. Or not, as they see fit. But I'm with Mrs Mug on this one. It's hardly the best 'Welcome to Your New Home', card is it? It just says : 'I am a lazy agent/LL who can't be arsed to treat tenants as human beings or to buy a diary/calendar and put a few reminders in it in advance'. It is not brain surgery (thank God).

Lawcruncher
13-03-2010, 15:08 PM
There are different regimes for landlord and tenant.

A landlord can only end an AST by obtaining a court order. A section 21 notice does not in fact do anything and certainly does not bring the tenancy to an end. A section 21 notice is nothing more than a necessary preliminary before possession can be sought under section 21.

A tenant can only bring an AST to an end in accordance with the common law rules, subject only to the statutory requirement that a notice to quit must be in writing.

Remember that as a matter of law when a fixed term AST ends if all the necessary conditions apply a periodic tenancy arises. It cannot be the case that on the one hand there is a tenancy which the landlord must respect, but on the other that the tenant can argue he can walk away without having regard to the common law rules. That is saying that there is certainty on the tenant's side but uncertainty on the landlord's. At common law it is an essential requirement for a tenancy that at any given moment both landlord and tenant must know its maximum possible duration, a periodic tenancy for this purpose being deemed to be a series of fixed term tenancies.

Mars Mug
13-03-2010, 15:15 PM
That is saying that there is certainty on the tenant's side but uncertainty on the landlord's. At common law it is an essential requirement for a tenancy that at any given moment both landlord and tenant must know its maximum possible duration, a periodic tenancy for this purpose being deemed to be a series of fixed term tenancies.

Fine, but I don’t see the certainty from a tenant’s point of view when a court commons could be the first time they are made aware that a landlord wants them out. Is a tenant still required to give a month’s notice when that summons has arrived?

tom999
13-03-2010, 15:16 PM
Surely the court order is some time after the summons has arrived, when the court has found in favour of the landlord?After the s.21 notice has expired, the landlord may make a claim for possession of the property; the tenant will receive a copy of the claim and they have 14 days to defend.

The s.21 route under the accelerated procedure does not require a court hearing with the Judge, tenant and landlord all in attendance (unless tenant defends or requests a hearing and the Judge accepts), as the Judge will typically make a decision in their private chambers.

Mars Mug
13-03-2010, 15:19 PM
The s.21 route under the accelerated procedure does not require a court hearing with judge, tenant and landlord, as it typically takes place in judge's private chambers (unless tenant defends or requests a hearing and Judge accepts).

The court order cannot be the first way that a tenant is made aware of the situation otherwise how could they possibly defend themselves?

tom999
13-03-2010, 15:29 PM
The court order cannot be the first way that a tenant is made aware of the situation otherwise how could they possibly defend themselves?Please read post #27 again.

Mars Mug
13-03-2010, 15:32 PM
Please read post #27 again.

I see it this time. Don't know why I didn't first time, edited maybe?

The 'Back' button on my browser tells me that you did indeed edit your post after I had already quoted it, but no matter, I'm happy with your edit.

tom999
13-03-2010, 15:36 PM
OK I did, can you please explain how the tenant is first made aware that the landlord is legally enforcing the S21?

Copying and pasting post #27:

"After the s.21 notice has expired, the landlord may make a claim for possession of the property; the tenant will receive a copy of the claim and they have 14 days to defend."

The claim form will have a page entitled 'Notes for the defendant' outlining the procedure if the defendant (tenant) wishes to defend.

Mars Mug
13-03-2010, 15:46 PM
So the tenant receives notification, and has 14 days to decide what to do, and your previous post suggests that at that time they are no longer required to give notice to leave themselves, is that correct?

So does the requirement on the tenant to give notice end with receiving notification that the landlord has made a claim for possession?

It seems to me that people think I am simply arguing on the side of the tenant, which to a certain extent I am, but I do believe that it is in any landlords interest, who issues S21s early, to know if the tenant can at some point in the future up sticks and go without a moments notice. It is also in a tenants interest to know this if they have a particularly bad landlord and they want to get out as quickly as possible, if the landlord has issued an early S21 then answers to these questions could be useful.

Lawcruncher
14-03-2010, 11:59 AM
The rule is this:

The maximum duration of a tenancy must, at its commencement, be fixed or capable of being ascertained.

We know a section 21 notice does not bring a tenancy to an end. If you say that a tenant who has been served with a section 21 notice does not need to give notice to quit but can just up and leave and that the tenancy ends when he does so, the rule would be broken because the tenancy would have ended at a time that was not capable of being ascertained when it started.

The fact that a court order may bring a tenancy to an end at a time that was not capable of being ascertained when it started does not affect the rule. If there is an order ending the tenancy then the tenancy ends because the order says it does. Until there is an order the tenancy continues and with it the need to serve notice. Once the order is made there is no need to give notice because the order ends the tenancy.

Mars Mug
14-03-2010, 12:46 PM
The rule is this:

The maximum duration of a tenancy must, at its commencement, be fixed or capable of being ascertained.

Is that a statement of intent somewhere?

For a tenant who is not served an S21 in the first six months they can be fairly sure of up to 8 months stay before any mention of legal proceedings. Where an S21 is served at the start this reduces to six months and a couple of weeks, and at the end of those two weeks they could find themselves liable for legal costs. Is that correct?


Until there is an order the tenancy continues and with it the need to serve notice.

So even after the tenant receives notification that the landlord has made a claim for possession they are still liable for rent payment up to the point that an order is given in favour of the landlord even if they are able to move to a new place a few days later. I assume they still have to give one months notice just in case the time between the notification arrives and the court order exceeds a month?

Is it true to say that after the initial six months of a tenancy, where an S21 was produced at the start, then tenant could effectively find that they have as little as two weeks (after receiving notification of the landlord’s claim for possession) to leave?

So is it really so discourteous of a tenant to simply leave at the end of six months without any notice at all where the landlord has already served an S21?

Lawcruncher
14-03-2010, 14:19 PM
The problem here really lies with the statute.

A section 21 notice needs to say that the landlord requires possession. Whilst it is not unreasonable to suggest that a tenant who receives a section 21 notice ought to able to say: "You asked for the property back - here it is" there is no legal justification for the view that that is in fact what a tenant can do.

Mars Mug
14-03-2010, 14:30 PM
Thanks, I think I understand what you say, and have just been reading the Rugg Review and some of the suggested changes;

http://www.york.ac.uk/inst/chp/Projects/PRSreview.htm

http://www.communities.gov.uk/news/corporate/1230528

The review considered ‘Retaliatory S21’ issues, but I see this discussion here as something of an extension of that. It seems that there are already proposals to reform this area significantly, and perhaps actions like the ‘early S21’ have helped drive that.

I’ve also been reading through old Sword Of Damocles threads here and in other forums where discussion gets quite heated at times. But I was more interested in the mechanics of the various situations that arise for example how much notice does a tenant have to give if they find a new place to live two days after finding that their landlord has applied for repossession, how soon it might be before they are legally required to leave, and when they could be looking at potential court costs.

havensRus
14-03-2010, 19:49 PM
So the tenant receives notification, and has 14 days to decide what to do, and your previous post suggests that at that time they are no longer required to give notice to leave themselves, is that correct?

Yes. The LL's intention is clear. Unless T wishes to defend the claim, T just needs to tell LL what date the property would be vacated.



So does the requirement on the tenant to give notice end with receiving notification that the landlord has made a claim for possession?

Yes




It seems to me that people think I am simply arguing on the side of the tenant, which to a certain extent I am, but I do believe that it is in any landlords interest, who issues S21s early, to know if the tenant can at some point in the future up sticks and go without a moments notice.

Up to last day of fixed period, T can leave, but is still liable for rent for the full fixed period.
After fixed period, T must give LL notice, even with the S21 in place.



It is also in a tenants interest to know this if they have a particularly bad landlord and they want to get out as quickly as possible, if the landlord has issued an early S21 then answers to these questions could be useful.

If LL bad and T wants to leave, then end of fixed term is earliest, and T can leave without informing LL if they so wish.

havensRus
14-03-2010, 20:08 PM
For a tenant who is not served an S21 in the first six months they can be fairly sure of up to 8 months stay before any mention of legal proceedings.


Yes.




Where an S21 is served at the start this reduces to six months and a couple of weeks, and at the end of those two weeks they could find themselves liable for legal costs. Is that correct?

Yes-qualified.

Basically, if LL issues S21, T can leave anytime up to the date the S21 becomes effective. Look at it as a polite request, which the T may or may not grant. If T grants the request, then no legal costs involved. T becomes liable for legal costs only if LL has to apply for a possession order.
If T and LL can agree on timing etc., and no court involved, no legal costs are incurred.
jaw-jaw better than war-war ....




So even after the tenant receives notification that the landlord has made a claim for possession they are still liable for rent payment up to the point that an order is given in favour of the landlord even if they are able to move to a new place a few days later. I assume they still have to give one months notice just in case the time between the notification arrives and the court order exceeds a month?

1. No need to give one month's notice after court notice received.
2. in a SPT, T is liable to pay rent for each period of tenancy. So, if rent paid monthly, and T was able to find a new place a few days into that month period, T is still liable for the rent for the month, and should have paid rent on due date anyway.




Is it true to say that after the initial six months of a tenancy, where an S21 was produced at the start, then tenant could effectively find that they have as little as two weeks (after receiving notification of the landlord’s claim for possession) to leave?

No, T has at least 4 weeks. 2 weeks to put in defence or not, if no defence, a further 2 weeks from judge.



So is it really so discourteous of a tenant to simply leave at the end of six months without any notice at all where the landlord has already served an S21?
Yes and No.
If relationship between both parties is good, Yes, its discourteous.
If relationship has broken down, No. LL probably expects T to leave anyway.
However, two wrongs never make a right ....

havensRus
14-03-2010, 20:13 PM
ut I was more interested in the mechanics of the various situations that arise for example how much notice does a tenant have to give if they find a new place to live two days after finding that their landlord has applied for repossession, how soon it might be before they are legally required to leave, and when they could be looking at potential court costs.

In the situation you describe, where T receives notification from court of LL request for possession, T can leave as soon as T has found a new place to go, even if its before the court order is issued.
Without a court order that specifically orders the T to pay the LL legal costs, in my view T is not liable for the costs. Unless there is a clause in the AST that makes T liable for costs once the possession request is made.

mind the gap
14-03-2010, 21:03 PM
Basically, if LL issues S21, T can leave anytime up to the date the S21 becomes effective. Look at it as a polite request, which the T may or may not grant.




Are you sure? I thought the whole point of this debate was that T cannot just do that - not without validly giving a month's notice, anyway.

I am however, easily confused.

Lawcruncher
14-03-2010, 21:08 PM
Basically, if LL issues S21, T can leave anytime up to the date the S21 becomes effective.

I do not think this is the case - see my comments above.

In any event:

When and how does a section 21 notice become "effective"?

If the tenant can leave before the date specified on the notice, why not after?

Mars Mug
14-03-2010, 21:11 PM
HavensRus,

Thanks for taking the time to put together all those replies, I appreciate that.

I don’t have a particular problem with the situation of good landlord – good tenant, but still think the process of the ‘early’ S21 is open to abuse by the bad landlords, and in fact those links I gave above question the abuse by some landlords of the standard S21 process.

I also read in a few places a suggestion that if the tenant confirms with the landlord in writing that everything is fine to proceed to SPT after the fixed term, then a positive answer from the landlord is deemed a re-negotiation and the early S21 is invalidated. Is that correct do you think?

havensRus
14-03-2010, 23:26 PM
I don’t have a particular problem with the situation of good landlord – good tenant, but still think the process of the ‘early’ S21 is open to abuse by the bad landlords

true



I also read in a few places a suggestion that if the tenant confirms with the landlord in writing that everything is fine to proceed to SPT after the fixed term, then a positive answer from the landlord is deemed a re-negotiation and the early S21 is invalidated. Is that correct do you think?

No. A S21 notice, issued correctly, is not invalidated until a new AST is signed. Over the years, I've attended landlord courses run by RLA/NLA/EMLAS, and that fact is consistently repeated.

havensRus
14-03-2010, 23:50 PM
When and how does a section 21 notice become "effective"?

If the tenant can leave before the date specified on the notice, why not after?

The T can leave after that effective date, of course. But incur the attendant costs of being removed, and the rent for each tenancy period till T vacates.

The S21 gives a date after which the LL wants possession. That is the effective date of the S21. That is the date by which the LL expects the T to vacate the property, and if T is still in residence the day after, LL can start legal proceedings - n'est ce pas?

If LL has indicated that they wish to enforce the S21, then I don't see that T need give notice to LL.

If LL issued the S21 early, but doesn't efforce it at the time it became effect, and tenancy continues, if T wants to leave thereafter, then notice should be given. that's my understanding.

I issue S21 within the fixed term, always to end on last day of term. I tend to send the S21 with the certificate of registration of the deposit. If not at that time, then I do it toward the end of month 4, when I write to remind them that the initial term will end on such and such a date, and that as required, I give them notice that possession is required. However, if they wished to stay on, then I'm happy to carry on renting to them, and they should confirm their intention by return, and if I don't hear from them, will assume they will be leaving at end of term. And if so, I'll write to them toward the end, to confirm check out process. Always does the trick, as they'll reply or call back and let me know their intention!!

In fact, in some cases where I've slipped up and not verified their intention, they've called to tell me they want to stay.

Unless the T has been bad, I generally just leave them to it, and just write a short letter saying "tenancy is now in SPT etc.etc,".

If they've been bad, I let them know early on that I will not be extending their tenancy beyond the term.

Fair is fair.

Mars Mug
14-03-2010, 23:52 PM
No. A S21 notice, issued correctly, is not invalidated until a new AST is signed. Over the years, I've attended landlord courses run by RLA/NLA/EMLAS, and that fact is consistently repeated.

OK, I read about the S21 being invalidated by re-negotiation in several places including here;

http://www.housepricecrash.co.uk/forum/index.php?showtopic=50262

Which actually had a link back to this forum. I also read in one or two threads on this forum that re-negotiation would invalidate an S21. Re-negotiation in all cases I read was not limited to the issue of a new AST.

havensRus
15-03-2010, 00:07 AM
Which actually had a link back to this forum. I also read in one or two threads on this forum that re-negotiation would invalidate an S21. Re-negotiation in all cases I read was not limited to the issue of a new AST.


No, I don't agree. Until a new contract is signed, the existing one is not invalidated.

I'm sure others will provide their view later on.

Mars Mug
15-03-2010, 00:18 AM
The discussion that I remember from this forum, but cannot find right now, is that an S21 is a notice that possession is required by the landlord, and that any form of negotiation to extend the tenancy effectively means that the intention to regain possession is no longer there. So an S21 that states the landlord requires possession at the end of the six month AST is negated when the landlord agrees with the tenant that the tenancy can become an SPT.

darranu
15-03-2010, 09:51 AM
Sorry to hijack this thread but I’m shortly going to be in the position of applying to the court for possession following the expiry of a section 21 notice.
I registered the deposit within the 14 days and handed the tenant a certificate of registration but she did not sign my copy. This was a significant oversight on my part, as now I do not have proof she received the certificate within 14 days and I notice this is a requirement when applying to the court for possession.
My question is can I still use the section 21 notice to apply for possession or has this oversight now left me in a world of pain and the section 21 void
The tenant is trying to get a council house and the friendly people at the council have advised her that the quickest way to do this is by been evicted thus becoming homeless.
Many thanks in advance for any advise

havensRus
15-03-2010, 10:30 AM
Sorry to hijack this thread but I’m shortly going to be in the position of applying to the court for possession following the expiry of a section 21 notice.
I registered the deposit within the 14 days and handed the tenant a certificate of registration but she did not sign my copy. This was a significant oversight on my part, as now I do not have proof she received the certificate within 14 days and I notice this is a requirement when applying to the court for possession.
My question is can I still use the section 21 notice to apply for possession or has this oversight now left me in a world of pain and the section 21 void
The tenant is trying to get a council house and the friendly people at the council have advised her that the quickest way to do this is by been evicted thus becoming homeless.
Many thanks in advance for any advise

You really should have started your own thread...

As long as you issued the S21 AFTER the deposit was protected, then the S21 is validly served.
Whilst she might not have signed your copy, you do have proof of registration and date of registration - that is sufficient. Just attach the copy to the N5B form.

Yes, you will have to go through the whole process and get possession order and potentially bailiff too.

tom999
15-03-2010, 10:35 AM
So an S21 that states the landlord requires possession at the end of the six month AST is negated when the landlord agrees with the tenant that the tenancy can become an SPT.Incorrect. As havensRus has already mentioned, if a validly served s.21 exists, a LL agreeing with T that the tenancy can continue on as a SPT would not invalidate it; a new valid s.21 would only need to be served after a new AST had been issued.

Lawcruncher
15-03-2010, 10:49 AM
The discussion that I remember from this forum, but cannot find right now, is that an S21 is a notice that possession is required by the landlord, and that any form of negotiation to extend the tenancy effectively means that the intention to regain possession is no longer there. So an S21 that states the landlord requires possession at the end of the six month AST is negated when the landlord agrees with the tenant that the tenancy can become an SPT.

I think the clear wording of section 21 is against any such interpretation:

Subsection (1)....a court shall make an order for possession of the dwelling-house if it is satisfied—
(a) that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than an assured shorthold periodic tenancy (whether statutory or not); and
(b) the landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than two months’ notice in writing stating that he requires possession of the dwelling-house.

There is wording to like effect in subsection (4).

As to notice the court asks the question: was a valid notice served? If the answer is "yes" then that is the end of the matter. The landlord's intentions both at the time he serves the notice and at any point later do not come into it.

Mars Mug
15-03-2010, 12:39 PM
Lawcruncher, thanks for the reply. I was going to post links to old threads, but decided that’s in no one’s interests, I don’t expect to change your view of things and don’t see any need to try.

I did find a slightly heated thread between two or three people where there was one case where an S21 was rejected in court because the required date for possession was quite old, and another contradictory case where the S21 was accepted and the date was several years old. So if two judges can have different interpretations, I see no point in my questioning what you have said.