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View Full Version : Tenants want new AST agreement after section 21 notice expires



kadir169
02-12-2010, 22:55 PM
Hi all,

I have a couple on an AST. the fixed term ended on 01/10/2010. I tried to raise rent but they did not agree with this. I served s21 notice 22/10/2010 which expires on 1/1/2011. So tenants have more than two months notice to leave. But now tenants have changed mind and want to stay and they will pay more rent. My question is can i know start a new tenancy agreement for another 6 months with this couple from the end of the s21 notice, i.e. 1/1/2011 ?

And has my procedures for serving notice been legal too?

Thanks in advance for your help!

MrJohnnyB
03-12-2010, 08:43 AM
What date did the lease actually commence?

Ericthelobster
03-12-2010, 09:36 AM
I have a couple on an AST. the fixed term ended on 01/10/2010. I tried to raise rent but they did not agree with this. I served s21 notice 22/10/2010 which expires on 1/1/2011. So tenants have more than two months notice to leave. But now tenants have changed mind and want to stay and they will pay more rent. My question is can i know start a new tenancy agreement for another 6 months with this couple from the end of the s21 notice, i.e. 1/1/2011 ?Do you actually want to give them another 6 month agreement? You're aware there's no obligation on you to do so at the end of a fixed term?; you just let the contract continue on a 'periodic' tenancy with no further paperwork necessary. The S21 you've issued has no effect unless you choose to follow up by applying to the courts for repossession. But it leaves the boot well and truly on your foot in that you could 'action' that S21 whenever you choose. No disadvantage to you per se, but your tenants might not appreciate living under this so-called 'Sword of Damocles'. Maybe you'd consider it their just desserts for messing you about over the rent rise? Maybe they'll quit as a result?

I don't know how you go about legally 'revoking' an already-issued S21 to the satisfaction of the tenants, if that's the preferred way forward.

FYI it's one of the rules for service of an S21 notice that it can only be done after a tenancy has started; therefore presumably if you do choose to issue a new tenancy agreement, then it will negate your current S21 notice which predates it.

mind the gap
03-12-2010, 09:41 AM
Do you actually want to give them another 6 month agreement? You're aware there's no obligation on you to do so at the end of a fixed term?; you just let the contract continue on a 'periodic' tenancy with no further paperwork necessary. The S21 you've issued has no effect unless you choose to follow up by applying to the courts for repossession. But it leaves the boot well and truly on your foot in that you could 'action' that S21 whenever you choose. No disadvantage to you per se, but your tenants might not appreciate living under this so-called 'Sword of Damocles'. Maybe you'd consider it their just desserts for messing you about over the rent rise? Maybe they'll quit as a result?

I don't know how you go about legally 'revoking' an already-issued S21 to the satisfaction of the tenants, if that's the preferred way forward.

FYI it's one of the rules for service of an S21 notice that it can only be done after a tenancy has started; therefore presumably if you do choose to issue a new tenancy agreement, then it will negate your current S21 notice which predates it.

Eric, I do not think there is an established legal procedure for revoking an already issued s21, since (as you have explained) there is no compulsion to act upon such a notice in any case. I think the Ts will just have to take the LL's word for it that he will not act upon it - perhaps a letter to this effect may placate them? If they are that bothered about it, they will sign a new agreement (thus invalidating the s21) and if one/boths sides do not wish to commit to that, then the theoretical uncertainty is part of the price they pay for staying. They don't have to stay, do they?

westminster
03-12-2010, 09:58 AM
You do not have to wait till expiry of the s.21 notice to sign a new contract. If you sign a new contract, this will replace the existing contract and 'cancel' the s.21 with immediate effect.

As regards validity of the s.21 served:


did the fixed term commence on the 2nd of the month?
was the notice expiry date given as "after 1st January 2011"?
if a deposit was paid by T, was it protected and the prescribed info provided to T at the time of service?

kadir169
03-12-2010, 15:28 PM
You do not have to wait till expiry of the s.21 notice to sign a new contract. If you sign a new contract, this will replace the existing contract and 'cancel' the s.21 with immediate effect.

As regards validity of the s.21 served:


did the fixed term commence on the 2nd of the month?
was the notice expiry date given as "after 1st January 2011"?
if a deposit was paid by T, was it protected and the prescribed info provided to T at the time of service?


Hi Westminster

The fixed term started on the 1st of the month, (1/10/2009)
the s21 notice was give as "after 1st january 2011"
the deposit was protected and they were given info as required

Would this be ok? I appreciate everyone's advice.

Cheers
Kadir169

kadir169
03-12-2010, 15:31 PM
What date did the lease actually commence?

Hi MrJohnnyB,

Lease commened on 1/10/2009.

cheers

westminster
03-12-2010, 18:19 PM
The fixed term started on the 1st of the month, (1/10/2009)
Therefore, the last day of the fixed term was 30th September 2010, (not 1st October, because 1st Oct '09 to 1st Oct '10 inclusive = one year + one day; there aren't 2 x 1st Octobers in a year).


the s21 notice was give as "after 1st january 2011"The s.21 notice served on 22nd October 2010 is invalid, because, although it does give T at least two months, it doesn't expire at the end of a tenancy period. The periods in a periodic tenancy begin the day after the fixed term expired, and their length is based on the frequency with which rent is payable. Assuming this is monthly, the periods run 1st - last day of the month, so your notice should have expired "after 31st December 2010".


the deposit was protected and they were given info as requiredYou got this bit right, though.

kadir169
04-12-2010, 20:15 PM
Therefore, the last day of the fixed term was 30th September 2010, (not 1st October, because 1st Oct '09 to 1st Oct '10 inclusive = one year + one day; there aren't 2 x 1st Octobers in a year).
The s.21 notice served on 22nd October 2010 is invalid, because, although it does give T at least two months, it doesn't expire at the end of a tenancy period. The periods in a periodic tenancy begin the day after the fixed term expired, and their length is based on the frequency with which rent is payable. Assuming this is monthly, the periods run 1st - last day of the month, so your notice should have expired "after 31st December 2010".

You got this bit right, though.

Hi Westminster.

Thanks for your considered reply. So my notice is invalid! *****! So i assume the tenancy is legally running as it would have done if i did not issue a notice at all!

Can i give another notice now for another full 2 months i.e. to expire "After 28th february 2011". Will that be ok to remedy my previous mistake?

Thanks Again for your help

kadir169
05-12-2010, 08:33 AM
Therefore, the last day of the fixed term was 30th September 2010, (not 1st October, because 1st Oct '09 to 1st Oct '10 inclusive = one year + one day; there aren't 2 x 1st Octobers in a year).
The s.21 notice served on 22nd October 2010 is invalid, because, although it does give T at least two months, it doesn't expire at the end of a tenancy period. The periods in a periodic tenancy begin the day after the fixed term expired, and their length is based on the frequency with which rent is payable. Assuming this is monthly, the periods run 1st - last day of the month, so your notice should have expired "after 31st December 2010".

You got this bit right, though.

Hi Westminster,

if the notice was invalid, then i assume if i want to give them a new tenancy agreement for another 6 months i can just do that. I mean i dont have to correct the notice to end the current tenancy do i? The new tenancy will automatically end the old one,correct?

Thanks

Ericthelobster
05-12-2010, 09:31 AM
i dont have to correct the notice to end the current tenancy do i? The new tenancy will automatically end the old one,correct?No and yes. It would be very odd an confusing to issue an S21 to terminate an old tenancy, then immediately issue a new tenancy agreement. That's not what an S21 notice is for. As an aside I wouldn't be making a point of advertising to the tenant that you'd screwed up the notice if you don't need to.

See also my post #3 above - you don't actually need to start a new agreement anyway; regardless of S21 notices (whether valid or not) the old tenancy just continues by default regardless.

westminster
05-12-2010, 10:24 AM
So my notice is invalid! *****! So i assume the tenancy is legally running as it would have done if i did not issue a notice at all!
A valid notice, correctly served, entitles the LL to apply to the court for possession after the notice expires, but the notice does not end the tenancy. The statutory periodic tenancy continues to run until the LL obtains, and a bailiff enforces, a possession order (unless the tenancy ends sooner by another method, e.g. if T gives notice to quit).


Can i give another notice now for another full 2 months i.e. to expire "After 28th february 2011". Will that be ok to remedy my previous mistake?

Yes, but as Eric says, there's no point unless you actually want the T to go in the event you can't negotiate a new rent for a new fixed term contract.

If you don't serve a s.21/don't obtain a possession order, or don't sign a new contract, then the tenancy will continue as a periodic AST on the same terms/rent as the expired contract (except provisions relating to notice).

If you do sign a new contract, then it would replace the old contract, and cancel out any s.21 notice previously served.

kadir169
08-12-2010, 23:14 PM
A valid notice, correctly served, entitles the LL to apply to the court for possession after the notice expires, but the notice does not end the tenancy. The statutory periodic tenancy continues to run until the LL obtains, and a bailiff enforces, a possession order (unless the tenancy ends sooner by another method, e.g. if T gives notice to quit).


Yes, but as Eric says, there's no point unless you actually want the T to go in the event you can't negotiate a new rent for a new fixed term contract.

If you don't serve a s.21/don't obtain a possession order, or don't sign a new contract, then the tenancy will continue as a periodic AST on the same terms/rent as the expired contract (except provisions relating to notice).

If you do sign a new contract, then it would replace the old contract, and cancel out any s.21 notice previously served.


Hi Westminster and Eric,

thanks again for your help. I checked my s21 notice and after the posession date there is a few paragraphs that actually correct any monor errors in the posession date! So my error of just one day would be corrected there.

But I have another problem, I have protected the T's deposit but did not give them the "Prescribed information". I assumed that they will get all info they need from the DPS (deposit protection scheme) once the deposit is lodged. If i were to get try to get an eviction order from the courts, how will this affect the case? I mean can the judge let them stay because of this error or not?

Thanks again

Snorkerz
08-12-2010, 23:26 PM
Unfortunately, if you haven't given the 'prescribed information' the s21 will be invalid (!) Back to stage 1 again I'm afraid.

kadir169
09-12-2010, 00:26 AM
Unfortunately, if you haven't given the 'prescribed information' the s21 will be invalid (!) Back to stage 1 again I'm afraid.

Hi Snorkerz, so what can i do now?

Ericthelobster
09-12-2010, 06:45 AM
Hi Snorkerz, so what can i do now?But what are you actually trying to achieve? Your thread is very confusing because earlier you indicated that the tenants had agreed to yout higher rent and would be staying on - is that the case? do you want them to stay? do they want to stay?

kadir169
09-12-2010, 11:46 AM
But what are you actually trying to achieve? Your thread is very confusing because earlier you indicated that the tenants had agreed to yout higher rent and would be staying on - is that the case? do you want them to stay? do they want to stay?

Hi,

I just want the tenants out. As they are not willing to pay the rent that i know i can achieve. What can i do knowing that i did not give the prescribed information and nw my s21 notice may be invalid?

Thanks

westminster
09-12-2010, 17:00 PM
Hi,

I just want the tenants out. As they are not willing to pay the rent that i know i can achieve. What can i do knowing that i did not give the prescribed information and nw my s21 notice may be invalid?

Thanks

Provide T with the prescribed information (there is a template on the DPS' website). Keep copy and obtain proof of posting (you may need this evidence if you apply for possession). Wait a couple of days for T to have received the letter, then serve a new s.21 notice.

kadir169
11-12-2010, 23:56 PM
Provide T with the prescribed information (there is a template on the DPS' website). Keep copy and obtain proof of posting (you may need this evidence if you apply for possession). Wait a couple of days for T to have received the letter, then serve a new s.21 notice.

Hi Westminster,

What if the tenants refuse to sign the prescribed information to indicate that they have received it? And what if they also refuse to sign the new s21 notice to indicate they have received it?

Will proof of posting be enough? I mean how can proof of posting prove i have posted anything relevant?

Cheers

westminster
12-12-2010, 01:15 AM
What if the tenants refuse to sign the prescribed information to indicate that they have received it? And what if they also refuse to sign the new s21 notice to indicate they have received it?

Will proof of posting be enough? I mean how can proof of posting prove i have posted anything relevant?

You don't need the T's cooperation/signature to serve notice on them.

If you want additional evidence of service, then get a witness to observe you putting the notice in the envelope, and going to the post office or posting through the tenant's letterbox.

Edit: We often advise posting two copies from two separate post offices and obtaining two free certificates of posting. Do not use signed-for services as the letter may be returned to sender.

kadir169
12-12-2010, 23:41 PM
You don't need the T's cooperation/signature to serve notice on them.

If you want additional evidence of service, then get a witness to observe you putting the notice in the envelope, and going to the post office or posting through the tenant's letterbox.

Edit: We often advise posting two copies from two separate post offices and obtaining two free certificates of posting. Do not use signed-for services as the letter may be returned to sender.


Hi Westminster,

Thanks for the excellent advice. My s21 notice does not reference the s21(a) or s21 (b). It just says section 21. Is this OK? I bought this from the "Lawpack". Is this ok or does it need to stipulate a or b ? I have seen some s21 notice templates that do this.

Also although my date on the s21 notice was wrong by one day, there are some paragraphs after that to correct any small mistakes made on the date. Will a judge allow these paragraphs do you think?

Thanks again

Ericthelobster
13-12-2010, 07:04 AM
Also although my date on the s21 notice was wrong by one day, there are some paragraphs after that to correct any small mistakes made on the date. Will a judge allow these paragraphs do you think?Sounds highly unlikely - but what exactly do the paragraphs say?

jeffrey
13-12-2010, 09:52 AM
My s21 notice does not reference the s21(a) or s21 (b). It just says section 21. Is this OK? I bought this from the "Lawpack". Is this ok or does it need to stipulate a or b ? I have seen some s21 notice templates that do this.
To be accurate, it's not 'a' or 'b'.
Instead, it's s.21(1)(b) [Notice served during fixed term] or s.21(4)(a) [Notice served after fixed term expiry].

westminster
13-12-2010, 09:55 AM
My s21 notice does not reference the s21(a) or s21 (b). It just says section 21. Is this OK? I bought this from the "Lawpack". Is this ok or does it need to stipulate a or b ? I have seen some s21 notice templates that do this.
There are two sorts of s.21 notices; those served under s.21(1)(b) which is when the tenancy is still within the fixed term, and those served under s.21(4)(a) which is when the tenancy is periodic (as in your case).

Section 21(4)(a) says that the notice must state that LL requires possession "by virtue of this section" - so I think it's okay for it to say "Section 21" just on its own.


Also although my date on the s21 notice was wrong by one day, there are some paragraphs after that to correct any small mistakes made on the date. Will a judge allow these paragraphs do you think?I think you are referring to a 'saving clause'? If so, I have read one case report where this was allowed - see
http://nearlylegal.co.uk/blog/2010/03/permission-1-refused-date-of-notice/
but you are obviously on much surer ground if you just get the date right (i.e. "after [last day] [month] [year]")

Note that your original notice was invalid because the prescribed info hadn't been given at the time of service, so the 'paragraphs' won't mend that mistake.