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View Full Version : Does L lose rights if L allows T week to week notice after section 21?



Conflicted
04-04-2010, 04:54 AM
Hi,

I have a tenant who thinks he might have some trouble finding a suitable place within the two month's notice period.

He has requested that the notice period stand, but that, if he has not found a place in that time, that the situation move to one where he is able to give us a week's notice before he moves.

In theory, I don't have a problem with that, if I add a condition of 'not longer than one month" or something after the notice period. I want the property to move back into myself, but I can be a a little flexible.

But, all the same, this is an unusual request, and I want to make sure I am not walking into any trouble by being accommodating.

Any advice?

C

mind the gap
04-04-2010, 07:21 AM
Hi,

I have a tenant who thinks he might have some trouble finding a suitable place within the two month's notice period.

He has requested that the notice period stand, but that, if he has not found a place in that time, that the situation move to one where he is able to give us a week's notice before he moves.

In theory, I don't have a problem with that, if I add a condition of 'not longer than one month" or something after the notice period. I want the property to move back into myself, but I can be a a little flexible.

But, all the same, this is an unusual request, and I want to make sure I am not walking into any trouble by being accommodating.

Any advice?

C

It is good of you to be accommodating, and if you trust your tenant implicitly, then what I am going to say may not seem relevant to your situtation. However the fact that you seem a little unsure of what to expect from him/her makes me wonder how likely he is to go when you think he should, so please read on!

Put yourself in the place of a T serving out a s21 notice period but struggling/unable/unwilling to find any suitable alternative accommodation. The thought of losing your home can be quite frightening/depressing. When push comes to shove you does not want to be on the streets and that may be why you do not move out when your LL wants you to, however good the LL/T relationship has been up to now. So you could give him an extension past the s21 expiry - and he could still be there at the end of it.

From your perspective as LL, saying 'OK, you can have up to a month after the s21 expires, but no longer' is a little optimistic. If your T does not vacate by 's21 expiry + one month' as he promises, it will take you a further couple of months after that to gain a court order for possession and if need be, instruct bailiffs.

You need to decide at what point you will start that process if T does not leave. My personal advice (unless you think T will definitely find somewhere/move out given just a short extension), would be to say nothing but to start the possession order process when the s21 expires. That will still give him up to eight weeks extra, as explained above.

If you do give him a formal extension (and T has proof of this) then you might muddy the waters a little vis a vis any court order application (not too sure ), however, you do not have to apply for a court order the day the s21 expires - it can be activated at any point thereafter.

Lawcruncher
04-04-2010, 09:12 AM
Hi,

I have a tenant who thinks he might have some trouble finding a suitable place within the two month's notice period. Etc.

Your post is based on the assumption that your section 21 notice has some sort of an effect. It has none. It is nothing more than a necessary step that has to be taken before proceedings for possession can be started. The notice period is of no significance except in determining the earliest date that a court order can be made. The tenancy does not end on the expiry of the notice. Only a court order can end the tenancy. Accordingly both the landlord and tenant's position is the same as it is if no section 21 notice had been served.

You have two choices. You can let the situation bumble long until the tenant finds somewhere and then accept short notice. Alternatively you can take control and start proceedings for possession at the earliest possible date.

For the record, a week's notice to quit would be invalid whether you agreed to accept it in advance or not. You can though accept an invalid notice.

mjbfire
04-04-2010, 09:14 AM
As mind says, It is good of you to be accommodating, but at the moment they need somewhere to live, so they are being nice to you.
But as soon as the tide turns, it's then you may have to worry.
Two months is actually quite a long time, and most people should be able to find another place to live in that time, ok maybe not there dream home, but should you put yourself at risk for that.
Serve him with a legal s21(Deposit and correct type), go though with the court process(Another Month or so). And then if he only needs another week, delay the baliffs stage.
But don't put anything in writting.

The only problem with the above, don't expect the T to be happy about it, and expect problems with viewing etc. So would get all LL duties done before serving it.(Gas Checks, repairs etc), and expect lawyer letters if you do anything wrong, but if he doesn't move out when he says, you could be heading down that road anyway.

You could also get him to give you notice in writing, which could mean that if he doesn't move out when he says, you could sue him for "Distress of Rent" which is double there normal rent. Which could legally encourge him to move.

I was like you, and couldn't do enough for a T, yes don't worry, just let us know how your search is going, and we delay our plans. 3 months later he still there and as soon as he sorted his new place out and moved out, that's when the trouble started, with lawyers etc.

So if you want him out, get him out, no if, no buts just do it.
Or you could get a jackal and hyde T.

I don't know the T, so could be honest(majority Ts are ) and do extractly what he says, but why take the risk.

mind the gap
04-04-2010, 09:21 AM
Only a court order can end the tenancy.

Or, in practice, the tenant voluntarily vacating and returning keys?

Snorkerz
04-04-2010, 09:50 AM
There has been a post on here recently where, iirc, the landlord gave a formal extension to an s21 which invalidated it because the extension formed a new tenancy agreement, not covered by the original s21.

http://www.landlordzone.co.uk/forums/showpost.php?p=202026&postcount=4

Tread carefully

Lawcruncher
04-04-2010, 11:17 AM
Or, in practice, the tenant voluntarily vacating and returning keys?

To be more precise and quoting the words of HA 1988:

An assured tenancy cannot be brought to an end by the landlord except by obtaining an order of the court...

The parties are, as you say, free to agree a surrender and of course a tenant dose not need a court order and can serve a NTQ.

Conflicted
05-04-2010, 04:02 AM
Thank you all very much for your considered responses.

I am sending a section 21 and notice will be served as of Wednesday.

Have a good Bank Holiday Monday, and thanks again,

C

Charles19
05-04-2010, 09:41 AM
There has been a post on here recently where, iirc, the landlord gave a formal extension to an s21 which invalidated it because the extension formed a new tenancy agreement, not covered by the original s21.

http://www.landlordzone.co.uk/forums/showpost.php?p=202026&postcount=4

Tread carefully

Yes agreed ! And dont put any other dates in writing after serving the S21. You can then start an Accelerated Possession Procedure (£150 direct online) if you need to. Dont let that name mis-lead you - it still takes a while though. Courts say 2 weeks to review it but their backlog means 5-6 weeks in reality! Then comes time for tenant to appeal after this ...3 months all in to a possession order IMHO.

Oh, and make sure S21 is correctly written, served and witnessed (or 'receipt of' document signed by T) with all correct terms etc included. Courts love to reject them on any mionor technicality!

Snorkerz
05-04-2010, 10:52 AM
Courts love to reject them on any mionor technicality!The law says things have to be done a certain way. The courts do not have discretion to 'bend the rules' - if it is wrong, it is wrong.

Lawcruncher
05-04-2010, 11:31 AM
The law says things have to be done a certain way. The courts do not have discretion to 'bend the rules' - if it is wrong, it is wrong.

This is especially the case with section 21 notices since the landlord can always serve another one. In other cases they make take the view that if the recipient is not misled then certain errors can be overlooked. Even so, notices should be checked carefully before being sent off. In one firm I worked for notices were always checked by another person however experienced the person who drew them up.

mind the gap
05-04-2010, 11:39 AM
This is especially the case with section 21 notices since the landlord can always serve another one. In other cases they make take the view that if the recipient is not misled then certain errors can be overlooked. Even so, notices should be checked carefully before being sent off. In one firm I worked for notices were always checked by another person however experienced the person who drew them up.
Lawcruncher, would a spelling error in the tenant's name on the s21 notice matter, as in this thread:

http://www.landlordzone.co.uk/forums/showthread.php?t=27377

Lawcruncher
05-04-2010, 11:58 AM
Lawcruncher, would a spelling error in the tenant's name on the s21 notice matter, as in this thread:

http://www.landlordzone.co.uk/forums/showthread.php?t=27377

I assiduously avoided that thread. One would hope not.

Charles19
05-04-2010, 13:11 PM
The law says things have to be done a certain way. The courts do not have discretion to 'bend the rules' - if it is wrong, it is wrong.

Wake up and smell the coffee! This is a tad naive Snorkerz.

Yes rules are rules and its a good thing but there is indeed scope for 'interpretation' with grey areas in a good deal of legal shenanigans. Hence the high fees these clever guys are paid at top end in bigger cases than simple L/T disputes.

But basically what you say is correct - however there are areas that can swing one way or another in a County Court depending on how the Judge feels that morning...its true! Some minor infringements can be 'overlooked' if its a good day and you get along whilst on another day or with another judge, maybe not so. As maybe on simple spelling errors mentioned above.

Snorkerz
05-04-2010, 13:17 PM
Oh yes - I am naive. However, over the last 40 odd years, I have learned that if you do things right there is no need to worry about if the judge liked his coffee this morning.

Still, as there are only 6 of us on the site at present, I'm not going to fall out about it ;)

Charles19
05-04-2010, 13:46 PM
Still, as there are only 6 of us on the site at present, I'm not going to fall out about it ;)

Glad to hear and I echo what you say and appreciate your comments on the site. Sounds a very good policy to follow and I shall try and do the same.
But mistakes happen ... and when I make my next one I hope I don't get the 'hanging judge' !

Snorkerz
05-04-2010, 13:53 PM
But mistakes happen ... and when I make my next one I hope I don't get the 'hanging judge' !But if your tenant makes a mistake - hope he/she does eh? :D As Lawcruncher says, you will get a 2nd attempt to evict, a tenant doesn't get a 2nd attempt to stay in the property. What if you both make a small mistake - what sort of judge would you hope for?

mind the gap
05-04-2010, 13:58 PM
I wonder what judges dream about, what they have for breakfast and what they read on holiday?

Charles19
06-04-2010, 08:05 AM
But if your tenant makes a mistake - hope he/she does eh? :D As Lawcruncher says, you will get a 2nd attempt to evict, a tenant doesn't get a 2nd attempt to stay in the property. What if you both make a small mistake - what sort of judge would you hope for?

Not sure of your points here at all ???

I don't hope my T makes a mistake (?) I simply hope and expect them to follow the AST agreement.

As for 2nd attempts, there are plenty for the T - appeal after appeal, trickety options after trickery options, so Ive no idea what point you try to make here either Snorkerz (?)

As for Judge type - why ask me this?
I would hope for a Judge who knows the law and who properly applies it and when the situation arises (as I stated above before!) that they apply common sense where it is possible to do so around definite legal principles - those grey areas.
Chas.

Snorkerz
06-04-2010, 13:51 PM
I don't hope my T makes a mistake (?) I simply hope and expect them to follow the AST agreement.


But if your tenant makes a mistake - hope he/she does eh? :D

Sorry, I dodn't make myself clear - what I meant was that if your tenant makes a mistake in their court paperwork then you would hope that he/she does get a "hanging judge" who would throw their defence out based on that mistake - handing you victory. My final comment was regarding your preference for having a 'hanging judge' or 'non hanging' if both parties make a mistake.

Conflicted
07-04-2010, 17:12 PM
Oh, and make sure S21 is correctly written, served and witnessed (or 'receipt of' document signed by T) with all correct terms etc included. Courts love to reject them on any mionor technicality!

All excellent advice, thanks so much.