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zcacmjw
02-09-2006, 18:58 PM
Hi,

I hope someone can clarify where I stand with my landlord. We moved into our current flat on 30th November 2005, taking a fixed term AST expiring on 28th November 2006. We signed a Section 21(1)(b) notice before the tenancy commenced.

Included in the contract is the following phrase:

"That this agreement is intended to create an Assured Shorthold Tenancy within Part 1 Chapter II of the Housing Act 1998 and the provisions for the recovery of possession by the Landlord in Section 21 thereof apply accordingly, save where the Landlord serves a notice under paragraph 2 of Schedule 2A to that Act"

Finally, the contract also states that:

"The Landlord may terminate this Agreement provided that two months written notice is given to the Tenant and that this notice is not served within six months of the commencement date of this Agreement"

A large factor in choosing to rent this flat was that the landlord was apparently looking for someone to stay for several years, so we were somewhat surprised to recieve a letter this morning stating that "the Landlord is excercising the option to terminate the tenancy" - the letter also states that "this decision has no reflection on your performance as tenants". No grounds for the decision are given.

The problem here is that the landlord requires possession on the 4th November. My wife is due to give birth around 1st October, so obviously moving at any time over the next 2 months is near impossible.

Is the landlord acting in a legal manner? My reading of the Housing Act would seem to suggest that S8 notice should be served stating grounds for possession. I don't particularly want to cause a fuss, but I doubt that those three and a half weeks are going to make much difference to the landlord while they'll make a huge difference to us...

P.Pilcher
02-09-2006, 20:13 PM
Sounds O.K. to me: as today is the 2nd. September, you have received the letter in excess of two months before possession is required. Although a "tenant friendly" judge may find that, as the letter does not quote the correct subsection of the act under which notice must be served to terminate a statutory periodic tenancy, it is invalid but don't bank on it! Your landlord can only commence the necessary court action when the notice period has expired so it may take a month before the possession order is issued, and a court appearance by you to plead hardship will delay this further. Once the order has become final, it will then be a further week or three before the bailiffs can be summoned to evict you. You will of course be liable for all court and bailiff costs should you need to take it that far.
A landlord does not have to state a reason when a section 21 notice is served for the return of his property.

P.P.

justaboutsane
02-09-2006, 22:55 PM
OP can you clarify if you have a 12 month AST.. PP as I read it (and I am a little drunk so may be wrong!!) The tenant has a 12 month ASt therefore the tenant has until the end of November to leave.. or it goes to court. At this point the OP then has at least another month until court then about another 4 weeks to bailiffs.. so OP you may be in situ until at least January!

zcacmjw
02-09-2006, 23:35 PM
The term of the tenancy is a year minus 1 day ending on the 28th November (with a S21 notice granting possession to the landlord on that date), which we're willing to go along with although we'd hoped to renew, but the landlord is demanding possession on the 4th November, ie before the expiry of the fixed term.

justaboutsane
03-09-2006, 08:49 AM
OP, you LL cannot ask you to leave before the end of the fixed term, if he tries it he will be illegally evicting you! Contact your LL and inform him that he cannot ask you to leave until the end of the fixed term, and as I said before you can stay put and wait for court and bailiffs etc, but that will cost you as you will have to pay for the court hearing and bailifs so thats not really a route you would want to take but may become essential, especially if you apply for council housing, which you can do as you have a section 21 and a letter informing you of the LL intentions.

P.Pilcher
03-09-2006, 09:51 AM
Sorry - misread the original post. Subsequent posters are totally correct, but you now know where you stand when the landlord gets the notice period right!

P.P.

davidjohnbutton
03-09-2006, 10:53 AM
Additionally, you signing the S21 notice (as a receipt)BEFORE the tenancy commences actually invalidates the notice. Obviously proving this is another thing - is your signature dated earlier than the commencement of the tenancy - if it is, then the landlord will have to give you another S21 notice in the correct format. If he takes possession proceedings on the one you signed, and you are successful in arguing that it was served before the tenancy began, the judge will throw the possession proceedings out of court.

zcacmjw
03-09-2006, 16:42 PM
Additionally, you signing the S21 notice (as a receipt)BEFORE the tenancy commences actually invalidates the notice. Obviously proving this is another thing - is your signature dated earlier than the commencement of the tenancy - if it is, then the landlord will have to give you another S21 notice in the correct format. If he takes possession proceedings on the one you signed, and you are successful in arguing that it was served before the tenancy began, the judge will throw the possession proceedings out of court.

I've just double checked and we signed to S21 on the day after taking possession, not the day before as I'd been thinking, so it's perfectly valid.

It sounds like my best approach is to try and reason with the landlord tomorrow morning. We're happy to move out in complience with the S21 notice at the end of the fixed term (although very disappointed as the prospect of staying for a couple of years was one of the main attractions of this flat), so hopefully they'll accept that without any need to get lawyers involved. Thanks to everyone for the advice.

Does anyone else find their behaviour to be rather odd? Issuing an eviction notice without grounds, to take effect 3 weeks before they get possession anyway seems rather strange to me...

Ericthelobster
03-09-2006, 17:29 PM
signing the S21 notice (as a receipt)BEFORE the tenancy commences actually invalidates the notice. Obviously proving this is another thing - is your signature dated earlier than the commencement of the tenancy - if it is, then the landlord will have to give you another S21 notice in the correct format.I issue my S21 notices immediately after the tenant moves in - ie, I meet them at the property, do the inventory, hand over the keys and then the S21; so the signature on that document (and the tenant's receipt of it) is dated the first day of the AST. Usually, the AST has been signed at least a day or so previously, but certainly on one occasion the tenant and I signed it at the same time as when I hand over the keys (naturally the tenant would still have had the document to peruse beforehand at the leisure, not a case of me sticking it under their nose for immediate signature!).

Would the above scenario - AST signature same date as S21 - be likely to predjudice the S21?

RichieP
03-09-2006, 18:56 PM
We're happy to move out in complience with the S21 notice at the end of the fixed term
..and you're well within your rights to do that. The landlord can't evict you before the end of the fixed term with a Section 21, valid ot not.

Surrey
04-09-2006, 11:04 AM
..and you're well within your rights to do that. The landlord can't evict you before the end of the fixed term with a Section 21, valid ot not.

I think it might not be quite true that the landlord can't ask you to leave, but of course in order to actually evict you he'd have to go to court. (However I would ALWAYS advise that you try to steer clear of the courts - the only people who win in many cases are the solicitors...)

Considering the following from the original post:



Finally, the contract also states that:

"The Landlord may terminate this Agreement provided that two months written notice is given to the Tenant and that this notice is not served within six months of the commencement date of this Agreement"

The way I understand that clause is that, once the first 6 months of the tenancy is up, that the landlord may give 2 months' notice at any time. (I suspect you would find a similar clause that would have allowed YOU to leave with 2 months' notice during the second half of the fixed term). This is a fairly standard term, known as a "break clause" and is included in the standard letting agreements produced by ARLA that many agents use.

It does seem a bit harsh that they have asked you to leave only 3 weeks before you'd be leaving anyhow. I hope your meeting with the landlord went well today, as you have the new baby to consider it would be very harsh of him to get you to leave before the end of the fixed term. I was in the same position as you a couple of years ago when I had to move house 2 weeks before the baby was due so I do sympathise.

zcacmjw
04-09-2006, 11:20 AM
The way I understand that clause is that, once the first 6 months of the tenancy is up, that the landlord may give 2 months' notice at any time. (I suspect you would find a similar clause that would have allowed YOU to leave with 2 months' notice during the second half of the fixed term). This is a fairly standard term, known as a "break clause" and is included in the standard letting agreements produced by ARLA that many agents use.


There's no such clause allowing us to leave without forfeiting our deposit, paying rent until a new tenant is found and paying a proportion of the landlords costs. Reading the OFT guidance it seems clear that the above "break clause" would be found to be unenforcable. (3.61, 3.62 and 3.65)



It does seem a bit harsh that they have asked you to leave only 3 weeks before you'd be leaving anyhow. I hope your meeting with the landlord went well today, as you have the new baby to consider it would be very harsh of him to get you to leave before the end of the fixed term. I was in the same position as you a couple of years ago when I had to move house 2 weeks before the baby was due so I do sympathise.

I spoke to someone from the landlord's company earlier this morning and I'm waiting to hear back - I'll post an update when I do.

justaboutsane
04-09-2006, 14:14 PM
The way I understand that clause is that, once the first 6 months of the tenancy is up, that the landlord may give 2 months' notice at any time. (I suspect you would find a similar clause that would have allowed YOU to leave with 2 months' notice during the second half of the fixed term). This is a fairly standard term, known as a "break clause" and is included in the standard letting agreements produced by ARLA that many agents use.


Can someone please clarify for me, but am I right in thinking that a break clause to the benefit of the LL cannot be enfoced in the fixed term??

P.Pilcher
04-09-2006, 14:30 PM
Yes - I understand that it can provided that on expiry of the notice period the tenancy has been in existence for at least six months and that at least two months notice has been given that the break clause is going to be used to terminate the tenancy. Paul F has posted several times that the use of break clauses is fraught with danger from the landlord's point of view and he recommends not using them at all - just use a six month AST - much safer.

P.P.

zcacmjw
04-09-2006, 15:24 PM
Thanks to everyone for you help and advice.

LL has "generously agreed" that we can stay up until the end of the AST term, which gives us a few weeks breathing space. Time to start flat hunting...

pippay
04-09-2006, 16:08 PM
I quite right too although i can't say I'm surprised - it wouldn't be worth the LL's while to instigate court proceedings just for the sake of 3 weeks.

Also not surpising is how many LL's back down when they get a tenant who halfway knows the law as good as, if not better than, the LL ...


Thanks to everyone for you help and advice.

LL has "generously agreed" that we can stay up until the end of the AST term, which gives us a few weeks breathing space. Time to start flat hunting...

Paul_f
04-09-2006, 22:01 PM
The clause to which you are all referring has many ways of being interpreted - so it's ambiguous and therefore pretty useless to a landlord - it also was without the tenant's prior agreement so potentially unfair and therefore almost certainly unenforceable.

You could even say it might refer to the service of a S.21 Notice!

Surrey
04-09-2006, 22:52 PM
The clause to which you are all referring has many ways of being interpreted - so it's ambiguous and therefore pretty useless to a landlord - it also was without the tenant's prior agreement so potentially unfair and therefore almost certainly unenforceable.

You could even say it might refer to the service of a S.21 Notice!

I have seen a similar clause, but phrased differently, in an ARLA-provided tenancy agreement. I believe the first part of the clause is the most relevant:

"Either party may terminate this agreement by not less than TWO calendar months written notice at any time on or after the expiry of FOUR calendar months from the date of commencement of the term hereof and on the expiry of such notice this agreement shall determine thereon but without any prejudice to any antecedent breach of the terms hereof by either party."

How does that stack up to the "without prior agreement" and "unenforceable" comments you made about the original poster's clause?

I don't see how you can say the clause is without prior agreement either if it was in the original agreement that the tenant signed, or am I just being blonde? (If so, humble apologies!)

RichieP
05-09-2006, 07:31 AM
without any prejudice to any antecedent breach of the terms hereof by either party

That's just jargon BS. Could be seen as unfair. What does it mean in English to your average punter?

Surrey
05-09-2006, 17:13 PM
That's just jargon BS. Could be seen as unfair. What does it mean in English to your average punter?

I class myself as an average punter on this, and for this phrase to make sense you have to take in the context of the entire clause. As I read it, the clause means that both the landlord and the tenant are able to end the lease before the end of the fixed term by giving at least 2 months' notice. Once the notice period has expired, the tenancy "determines" (i.e. comes to an end) but if either the landlord or the tenant have broken any terms of the tenancy before it came to an end, the other party can still seek some remedy under the terms of the contract - just because the tenancy has ended does not mean that any prior breaches disappear.

I don't see that as unfair, I see it as particularly fair, as it applies to both landlord and tenant and both landlord and tenant are equally likely to want to use a break clause.

Paul_f
05-09-2006, 20:43 PM
This clause must be from a very old ARLA agreement as I can't find it in the current one in use; in any event it is as Ritchie states full of legal jargon.

Even if such a clause were to exist it would still need to be agreed with the tenant before the tenancy commenced, you cannot just put in there if the landlord wants to enforce it just because the tenant signed the agreement. It is a fallacy that just because the tenant signs something it's legally enforceable - it ain't. The tenant though could enforce his right as it wouldn't be his mistake. Look! I can't keep arguing the point so just look at the Unfair Terms at the OFT website if you want 127 pages of the full text and several explanations on such terms.

pms
06-09-2006, 15:35 PM
This clause must be from a very old ARLA agreement as I can't find it in the current one in use; in any event it is as Ritchie states full of legal jargon.I cant find it either

It is a fallacy that just because the tenant signs something it's legally enforceable - it ain't. Doe's that include a Section 21 notice.