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Charles19
30-03-2010, 13:35 PM
Hello all, I served a Section 21 properly for tenant to leave by 12th December. He didnt go and said he would leave in a month if I agreed he could stay. I had no choice but to agree as he said (and did) pay rent. On 14th Dec I wrote to agree his request and allow him to stay til 12th Jan. Right after this he verbally told me he could not now leave as agreed "Sorry". So on 18th Dec I started an Accelerated Possession Procedure myself at local court from online forms (easy to do) . I won and was awarded possession and costs of £150 - although tenant had departed by 20th Jan. But tenant appealed costs and at appeal he won!!! Judge said because I agreed an extra month that my original section 21 was invalidated and I would have needed to start again. Is this right?
Also because I started the APP during the tenancy I was also wrong - started on 18th Dec when extra month given ran until 12th Jan. But he had told me after this 'agreement' it was all changing and he had no date to leave. Advice here welcome for future should it arise again for anyone...at least I only lost court fees and tenant departed, could have been far far worse. Chas

mjbfire
30-03-2010, 13:46 PM
What type of court made this judgement?
Also was it because you did it in writting, and therefore caused a new AST to be created?

Charles19
30-03-2010, 14:03 PM
What type of court made this judgement?
Also was it because you did it in writting, and therefore caused a new AST to be created?

It was a County Court both times.
I like to keep everything formally in writing but this time my efficient approach seems to have hanged myself - according to this judge if correct.
I am not sure if I can 'appeal the appeal' and on what grounds I dont know yet, hence my question.
Chas

Paul_f
31-03-2010, 08:26 AM
A S.21 is served 'without reservation' so if you agree to any variation after service then you do indeed invalidate the Notice, and it does appear you have created a new monthly AST agreement, and might have to wait another 6 months from commencement to seek possession.

Mrs Mug
31-03-2010, 08:37 AM
A S.21 is served 'without reservation' so if you agree to any variation after service then you do indeed invalidate the Notice, and it does appear you have created a new monthly AST agreement, and might have to wait another 6 months from commencement to seek possession.

This contradicts the arguments that were given when we debating the merits of issuing a S21 at the start of a tenancy agreement. The landlords that do this, said that issuing an early S21 didn’t mean it was invalidated if they told the tenant is was just a precaution, and they didn’t have to move out when the S21 expired.

Charles19
31-03-2010, 10:31 AM
A S.21 is served 'without reservation' so if you agree to any variation after service then you do indeed invalidate the Notice, and it does appear you have created a new monthly AST agreement, and might have to wait another 6 months from commencement to seek possession.


They moved out thank goodness. This exercise was about getting my costs of £150 back as I had to go to court through no fault of my own. Seems I lost on a technicality. Live and learn in this business.

Charles19
31-03-2010, 10:35 AM
This contradicts the arguments that were given when we debating the merits of issuing a S21 at the start of a tenancy agreement. The landlords that do this, said that issuing an early S21 didn’t mean it was invalidated if they told the tenant is was just a precaution, and they didn’t have to move out when the S21 expired.

Indeed, my experience shows anything in the entire term that you may send out on dates could invalidate the Section 21 without LL realising. I leave it until 2 months and two weeks of AST left and make a diary note at start of tenancy. Deliver by hand and get it signed by tenant to prove receipt. Discuss options such as staying on into a new AST at this time of signing receipt. Its normal and should not unduly worry tenants, if they are good tenants then say they can write to you to ask about staying on. But as mentioned, be careful here too so as not to invalidate S21.
Chas.

Snorkerz
31-03-2010, 10:39 AM
A S.21 is served 'without reservation' so if you agree to any variation after service then you do indeed invalidate the Notice, and it does appear you have created a new monthly AST agreement, and might have to wait another 6 months from commencement to seek possession.

We have had this disagreement before - the 6 month rule applies to a 'tenancy', not the bit of paper called a 'tenancy agreement'.

If "Mr T" moves in, and after 6 months signs another AST, that is a continuation of the same tenancy. If, on the new AST it becomes "Mr & Mrs T", then that is a new tenancy.

S21(5)(b)

Charles19
31-03-2010, 10:53 AM
We have had this disagreement before - the 6 month rule applies to a 'tenancy', not the bit of paper called a 'tenancy agreement'.

If "Mr T" moves in, and after 6 months signs another AST, that is a continuation of the same tenancy. If, on the new AST it becomes "Mr & Mrs T", then that is a new tenancy.

S21(5)(b)

Could you clarify a little please - are you saying I may have an argument to appeal (if it is possible to appeal). The 12 month AST ended and tenant stayed another month on a periodic basis which I confirmed as being permitted - provided they left on thi sdate. Which they didnt incidentally!
Chas.

mjbfire
31-03-2010, 11:17 AM
The differance is something was given in writting, but it seems very unfair,
for just being reasonable.

T trashes a P, LL starts S21, 6 weeks later T says I will move out in a months time when I find a new place, LL agrees in writting to save having to go to court(And therefore creates a new AST). LL ends up with a bad T for another 6 months or have to go down the S8 route. If it goes down this route it could end up that any discussion or action(Taking rent) creates a new AST(As oral AST can be created now), then you could end up with the situation that if you don't apply to a court for procession the day after the s21 expires, the T agrue that you have given them a new AST, as per any discussion between the T and LL/LA, until the court date.
Which could cause a fairly simply S21 process, into a nightmare, I hope it never happens.


But as previous posts, As a T I be worried about getting the S21 at 4 months than at the beginning of the AST, and could prompt people moving out.
If you happy with T and T happy with P, there nothing stopping a new AST being created of 7/8 months, to create a year. Which would invalidate the old AST and S21.

Lawcruncher
04-04-2010, 11:28 AM
Hello all, I served a Section 21 properly for tenant to leave by 12th December. He didnt go and said he would leave in a month if I agreed he could stay. I had no choice but to agree as he said (and did) pay rent. On 14th Dec I wrote to agree his request and allow him to stay til 12th Jan. Right after this he verbally told me he could not now leave as agreed "Sorry". So on 18th Dec I started an Accelerated Possession Procedure myself at local court from online forms (easy to do) . I won and was awarded possession and costs of £150 - although tenant had departed by 20th Jan. But tenant appealed costs and at appeal he won!!! Judge said because I agreed an extra month that my original section 21 was invalidated and I would have needed to start again. Is this right?
Also because I started the APP during the tenancy I was also wrong - started on 18th Dec when extra month given ran until 12th Jan. But he had told me after this 'agreement' it was all changing and he had no date to leave. Advice here welcome for future should it arise again for anyone...at least I only lost court fees and tenant departed, could have been far far worse. Chas

Without knowing exactly what your letter said, it is difficult to say whether the appeal decision was correct.

What is possible is that everyone (apart from the judge at first instance) has fallen into the error of treating the section 21 as if it ends the tenancy when it does no such thing. The tenant did not in fact need to ask for "the notice to be extended" since it had no effect to bring the tenancy to an end. The landlord's position would not have been prejudiced in any way by the tenant failing to leave on the date the notice expired. The landlord did not need to agree the tenant could stay because he could stay anyway.

Charles19
04-04-2010, 14:39 PM
Without knowing exactly what your letter said, it is difficult to say whether the appeal decision was correct.



Thanks for the reply Lawcruncher which makes sense. So here is what the letter stated (written on 14th December) ...
"Your Tenancy Agreement expired at midday on 12th December 2009. I permitted a one month extension to this agreement upon your request. Therefore, as things stand your final day living at this address is 12th January 2010. You must have vacated the property by midday on this date."

This was taken by Judge (after checking the books for a long time!) that my S21 (served in early October with date of 12th Dec) was thus invalidated and the tenant won her appeal against my order for eviction and £150 expenses. As she had left already, it meant I lost my claim for the money which I could have done with and I had won originally.
Any grounds for me to appeal further?

davidjohnbutton
04-04-2010, 15:13 PM
I think it is abundantly clear by your letter that you intended merely to give the tenant a "right" to live in the property for a month after the tenancy expired by reason of the S21 notice you served.

Howewver, as you have found out, this was in fact a dangerous thing to do because you have in fact over ridden the S21 notice by giving such permission and as such you have lost the right to obtain possession based on THAT s21 notice.

A better way would have been to simply respond to a request for a stay by saying that you will obtain the Warrant of Possession after such and such a date if the tenant is stil resident. In that way you preserve your right to possession and you choose when to enforce.

I personally would say that I think any appeal by you would be unsuccessful and you would be throwing good money away - at the moment you have possession and have only lost the court fee - you will lose a lot more if an appeal fails as well!!

Lawcruncher
04-04-2010, 16:50 PM
Thanks for the reply Lawcruncher which makes sense. So here is what the letter stated (written on 14th December) ...
"Your Tenancy Agreement expired at midday on 12th December 2009. I permitted a one month extension to this agreement upon your request. Therefore, as things stand your final day living at this address is 12th January 2010. You must have vacated the property by midday on this date."

This was taken by Judge (after checking the books for a long time!) that my S21 (served in early October with date of 12th Dec) was thus invalidated and the tenant won her appeal against my order for eviction and £150 expenses. As she had left already, it meant I lost my claim for the money which I could have done with and I had won originally.
Any grounds for me to appeal further?

I think that the decision was correct. What your letter confirmed you had done was not to extend the notice, but to extend the fixed term tenancy. Accordingly, when you applied for possession on 18th December there was in existence a fixed term tenancy and the condition set out in section 21 (1) (a) was not met.

Lawcruncher
04-04-2010, 16:51 PM
I think it is abundantly clear by your letter that you intended merely to give the tenant a "right" to live in the property for a month after the tenancy expired by reason of the S21 notice you served.


This cannot be correct because the section 21 notice did not operate to end the tenancy.

davidjohnbutton
04-04-2010, 17:22 PM
Alright, bad choice of words on my part.

Yes the tenancy is only ended when either the tenant moves out or possession is given following a court order and the tenant complies with that order by "own steam" of bailiff eviction.

But you know what I meant!

Charles19
05-04-2010, 09:45 AM
Alright, bad choice of words on my part.

Yes the tenancy is only ended when either the tenant moves out or possession is given following a court order and the tenant complies with that order by "own steam" of bailiff eviction.

But you know what I meant!

Just to ask, since 'possession' was not the final issue here but 'my costs' - are there any grounds for me to get these back?

Thanks again.

Lawcruncher
05-04-2010, 09:53 AM
Just to ask, since 'possession' was not the final issue here but 'my costs' - are there any grounds for me to get these back?

No, because you "lost".

Remember for the future that it is always best to keep things simple. Every time you put something in writing assume there is a trap for the unwary to fall into.