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Surrey
07-09-2006, 00:48 AM
An interesting little situation for you, looking forward to your responses.

Scenario
A 12-mth fixed term AST is set up. At the beginning of the tenancy the letting agency issues a Section 21 notice for the last day of the tenancy (as a back-up thing as discussed in other threads recently, but without informing the landlord and certainly not on his instruction).

After 10 months the tenants ask the agents for an extension by a month, the request is not passed onto the landlord.

After 11 months the agency issues a further Section 21 notice with the expiry date being after the end of the original fixed term, on instruction from the landlord (probably because they forgot they'd already issued one and as they hadn't told the landlord about the first one he didn't know of its existence).

Tenant stays in the flat an extra week past the end of the original fixed term but moves out before the later date. They pay the rent to the end of the initial period but not for the extra week.

Questions
Q1: As no further tenancy agreement was signed to cover the period after the first expiry date and the tenant stayed longer than allowed to by their initial agreement, what is the status of the tenancy? Is it now a Periodic, does it keep the terms of the original AST or is it something else?

Q2: If it has changed to a Periodic by dint of the tenant staying on, when do the parties' liabilities to each other end? Is the first S21 notice still valid and the tenant can move out when they like, does either the landlord or tenant need to now issue 1 month's notice to the other party, or does the second S21 notice serve the purpose so liabilities end on date of second S21 notice?

Q3: Specifically, up to what date is the tenant liable for rent? One month after the Periodic started (if that is indeed what it was), the date of the second S21 notice or the date they actually moved out?

Q4: If for some reason the second Section 21 notice turns out to be defective so that it effectively was never issued, what is the effect on the answer to Q2, i.e. when do the parties' liabilities to each other end?

Q5: If the second S21 notice was defective, upto what date are the tenants liable for rent? The original date, the date they moved out or one month after the Periodic tenancy commenced?

Sorry to be so long but there are lots of things to consider that might be relevant.

lawstudent
07-09-2006, 06:42 AM
An interesting little situation for you, looking forward to your responses.

Scenario
A 12-mth fixed term AST is set up. At the beginning of the tenancy the letting agency issues a Section 21 notice for the last day of the tenancy (as a back-up thing as discussed in other threads recently, but without informing the landlord and certainly not on his instruction).

After 10 months the tenants ask the agents for an extension by a month, the request is not passed onto the landlord.

After 11 months the agency issues a further Section 21 notice with the expiry date being after the end of the original fixed term, on instruction from the landlord (probably because they forgot they'd already issued one and as they hadn't told the landlord about the first one he didn't know of its existence).

Tenant stays in the flat an extra week past the end of the original fixed term but moves out before the later date. They pay the rent to the end of the initial period but not for the extra week.

Questions
Q1: As no further tenancy agreement was signed to cover the period after the first expiry date and the tenant stayed longer than allowed to by their initial agreement, what is the status of the tenancy? Is it now a Periodic, does it keep the terms of the original AST or is it something else?
It is now a statutory periodic tenancy with all the other terms of the original AST remaining in force

Q2: If it has changed to a Periodic by dint of the tenant staying on, when do the parties' liabilities to each other end? Is the first S21 notice still valid and the tenant can move out when they like, does either the landlord or tenant need to now issue 1 month's notice to the other party, or does the second S21 notice serve the purpose so liabilities end on date of second S21 notice?
The fiirst S21 could still be valid but the second one has added a certain doubt (unless it were stated to be without prejudice to the validity of the first one). Anyway, it seems reasonable for the tenant to rely on the validity of the first one and leave without further notice. The tenant remains liable to pay prorata rent until the tenancy ends which in this case happens when the tenant actually leaves

Q3: Specifically, up to what date is the tenant liable for rent? One month after the Periodic started (if that is indeed what it was), the date of the second S21 notice or the date they actually moved out?
see above

Q4: If for some reason the second Section 21 notice turns out to be defective so that it effectively was never issued, what is the effect on the answer to Q2, i.e. when do the parties' liabilities to each other end?
no change

Q5: If the second S21 notice was defective, upto what date are the tenants liable for rent? The original date, the date they moved out or one month after the Periodic tenancy commenced?
no change

Sorry to be so long but there are lots of things to consider that might be relevant.
no problem
I think it unlikely that a court would find that the tenant had acted unreasonably in relying on the validity of the first notice.

investor68
07-09-2006, 07:04 AM
Hi there,

I read this post which is really interesting.

At the mo, I am buying (hoping to anyway!!) a flat with a tenant in place. As there have been so many delays, (I won't bore you all with the details...) the tenant's current AST expires at the end of October. To safeguard positions the Seller served a notice (not sure which one, but I expect it would have been the s.21 notice - basically saying that she wants the property back at tenancy expiration). Meanwhile all parties have been chatting and the tenant would like to stay and I'm happy to keep her on. She's agreed to pay a small bit extra in rent.

I'm just not sure what I have to do next? I'd like to draw up a new AST to give her but are there any things to watch out for as she won't actually be vacating the property? The plan is I will complete the purchase with her in place and then renew the tenancy.

Also I saw somewhere on this site info. about a form and giving a month's notice about a proposed higher rent. Is this something I need to do in these circumstances?

Am a bit clueless I'm afraid so won't be offended by an idiot's guide/tips!

Many thanks in advance.
Regards,

P.Pilcher
07-09-2006, 13:14 PM
The only thing that you can't do is to issue a new AST until you have completed the purchase. Naturally the contract of sale expressly states that the vendor is not giving you vacant possession due to the occupancy of *****. If nothing is done on either side, then the tenancy agreement becomes statutory periodic. Once you have completed the purchase, you can then issue your own AST and provided the tenant is happy with the terms including your new rent, he signs the AST and you hae him as your tenant for a minimum of six months. If said tenant is not happy, you can give him his two months notice based on his old AST of which your solicitor will have obtained a copy.

Surrey
07-09-2006, 13:28 PM
I think it unlikely that a court would find that the tenant had acted unreasonably in relying on the validity of the first notice.

However, as they stayed on beyond the final date of the AST, does that mean that they should have given me further notice of their intention to leave because it has changed to a periodic? If not, it looks as if once a fixed term is up a tenant can leave whenever they want without giving notice as long as they pay the rent for the days they're there. Seems a bit daft but looks to be the logical conclusion from what you've said.

The problem is not that they wouldn't move out but that they moved out earlier than I expected them to, so I didn't receive any rent for the days I was expecting them to be there. I know this is the other way round to most of the problems I read about and loads of you will just say "lucky you, you got your property back" but it'd be good to know where I stand regarding periodic tenancies. If the initial S21 notice had not been issued, what would the tenant's liability have been? Would they have had to give one month's notice ending on the end of a term (meaning effectively almost two months' notice), or at least pay the rent for their final month after moving out?

MrShed
07-09-2006, 14:57 PM
To my mind, the first S21 is invalidated by the second S21, unless the second one said "without prejudice". With this in mind, IF this is the case, then the tenant was free to leave when he wished. Once you issue the S21, as far as I know, the tenant is free to leave(unless he is in a fixed term). You cannot say on one hand "oh I want you out" but on the other "but you mustnt leave until I say so".

lawstudent
07-09-2006, 16:17 PM
However, as they stayed on beyond the final date of the AST, does that mean that they should have given me further notice of their intention to leave because it has changed to a periodic? If not, it looks as if once a fixed term is up a tenant can leave whenever they want without giving notice as long as they pay the rent for the days they're there. Seems a bit daft but looks to be the logical conclusion from what you've said.
he can only leave without giving notice if the LL has given notice - which, in the case you adumbrate, he has done

davidjohnbutton
07-09-2006, 17:08 PM
adumbrate Show phonetics
verb [T] FORMAL
to give only the main facts and not the details about something, especially something that will happen in the future:
The project's objectives were adumbrated in the report.

adumbration Show phonetics
noun [U] FORMAL


Just in case you were wondering...............!

pippay
07-09-2006, 17:30 PM
mmmmm... its as sad as, if not worse than, Paul_f's "effluxion " ....

If the OFT Guidleines state that terms that are difficult for an ordinary lay person to understand could be deemed unfair, could we (especially the "professionals" ) not set an example and follow those guidleines on this forum ?


he can only leave without giving notice if the LL has given notice - which, in the case you adumbrate, he has done

Ruth Less
07-09-2006, 18:33 PM
The fiirst S21 could still be valid but the second one has added a certain doubt (unless it were stated to be without prejudice to the validity of the first one). Anyway, it seems reasonable for the tenant to rely on the validity of the first one and leave without further notice.

I don't see how a landlord can issue a second S21 and have that invalidate the first S21 regardless of what the second one says. If he could you'd have the case where a tenant receives an S21, makes all the arrangements ready to move out in two months time and then a week before the move receive a new S21 with a later date therefore saying he's got to postpone the move. That can't possibly be right. If it was then tenants would always have to issue their own notice to match the landlords to stop being mucked about.

It seems clear the first S21 remains valid unless both landlord and tenant agree to cancel it.

Interesting to see the Sword of Damocles approach to issuing S21's backfire on the landlord. This approach relies on the tenant forgetting the S21 was issued, but in this case the agent forgot!

MrShed
07-09-2006, 18:36 PM
If he could you'd have the case where a tenant receives an S21, makes all the arrangements ready to move out in two months time and then a week before the move receive a new S21 with a later date therefore saying he's got to postpone the move. That can't possibly be right.


It isn't right, because a second S21 would not result in the situation you describe, because of what lawstudent said above - once a tenant has received an S21 a tenant can leave without notice. So the fact that the S21 date has changed is irrelevant, there is still a S21 issued.

Ruth Less
08-09-2006, 01:54 AM
It isn't right, because a second S21 would not result in the situation you describe, because of what lawstudent said above - once a tenant has received an S21 a tenant can leave without notice. So the fact that the S21 date has changed is irrelevant, there is still a S21 issued.


Are you saying the tenant doesn't have to wait for the S21 notice to expire? So if a tenant gets an S21 that expires in two months time (i.e. they are given two months notice) then they can leave immediately (so long as it's after the end of the fixed term) without having to pay the rent for those two months?

If this is what you are saying then why wasn't the answer to the OP that it doesn't matter which of the two S21 notices is valid as the tenant can leave anyway?

I am not sure lawstudent meant this as he said "I think it unlikely that a court would find that the tenant had acted unreasonably in relying on the validity of the first notice."

If what you say is right then the tenant could leave on the date they did using either of the two S21 notices, they would not have to rely on the first.

investor68
08-09-2006, 06:58 AM
Thank you, P Pilcher for your helpful reply.:)

lawstudent
08-09-2006, 08:03 AM
I don't see how a landlord can issue a second S21 and have that invalidate the first S21 regardless of what the second one says. If he could you'd have the case where a tenant receives an S21, makes all the arrangements ready to move out in two months time and then a week before the move receive a new S21 with a later date therefore saying he's got to postpone the move. That can't possibly be right. If it was then tenants would always have to issue their own notice to match the landlords to stop being mucked about.

It seems clear the first S21 remains valid unless both landlord and tenant agree to cancel it.
I agree with you.

Surrey
08-09-2006, 09:50 AM
My question about whether the tenants are responsible for rent after their fixed term, seeing as they stayed on after the last date of the term, still hasn't really been tackled, partly because I've received copies of the notices and they appear to expire on a set day rather than be open-ended.


I don't see how a landlord can issue a second S21 and have that invalidate the first S21 regardless of what the second one says.As mentioned above, it seems that it wasn't the second notice that invalidated the first, but the first expired so the second then came into play.

here's what we've got:
They both mention Section 21(1)(b) and Section 21(4)(a) in the heading, are addressed to the tenant and give the landlord's name and address.

The first one says:

"I give you notice that I require possession of dwelling house known as [[address of property]]]
Date of Expiry On [[date of expiry of original fixed term - 20th June]] or the day on which a complete period of your tenancy expires next after the end of two months from the service of this notice, if this notice is given after the expiration of the fixed terms.
Signed by agent and dated.

Notes on the back explain the following:
"On or after the coming to an end of a fixed term AST a Court must make an Order for possession of the Landlord has given a notice in this form, even if the AST has becom a Periodic tenancy.
The length of the notice must be at least two months and, if given before or on the day on which the fixed term comes to an end, will expire on the date shown overleaf."

The second one is identical, only that the issue date is 18th May not 3 July 2004 and date of expiry is now 17th July, not 20th June and it isn't signed, though I believe that is not a requirement, (see Section 21 Questions (3) somewhere else in the forums) so that's a possible red herring I will avoid.

Both notices state the specific day possession is required, NOT that it should be any time AFTER that date. The notes also specifically state (as I read them) that the notice expires on the date shown - or have I got that wrong?

QUESTION 1: seeing as the tenant left 7 days AFTER the date specified, has the first notice expired? Even though the first notice was still "active" when the second was issued, once the first one expires, the second notice becomes the "active" notice - or have I got it wrong? And doesn't that mean that the tenants are both allowed possession of the property and responsible for rent, up to that expiry date?

QUESTION 2: If, for some other reason, that second notice turns out to be defective, so effectively it's a periodic tenancy and no notice has been given by either side, how long are the tenants responsible for the rent? Just until the last day they were there or some other date?

Sorry to be persistent on this (or maybe I'm just being blonde - apologies to all other blondes out there!) but I still don't understand what the tenant's responsibilities are regarding their liability to pay the rent, whether they're in the place or not.

pms
08-09-2006, 12:28 PM
I think you've got to bear in mind what S21 NOTICE you are issuing either one to terminate a fixed term or one to terminate a periodic tenancy.Chances are that if you've issued the wrong one then a judge will throw it out.As for responsability for rent if the tenants leave five days after the end of the fixed term and you receive any monies these would need to be accounted for as "mesne" profits.

Ruth Less
08-09-2006, 13:34 PM
Surrey, There are several threads on what happens if a tenant stays on past the expiry date of an S21 (this usually comes up when discussing the Sword of Damocles method of issuing S21's so that gives you a fairly unique thing to search for).

As far as I understand it the answer is, the tenant can leave any time after the S21 expires and be liable for the rent pro-rata for the days they were in occupation. In your case they owe the one weeks rent.

One thought, if you don't understand what the tenants liabilities are in this somewhat muddled situation then how can it be fair on the tenants as they can't be expected to understand it either. The agent and the landlord are supposed to be the professionals that know what they are doing, not the tenant.

lawstudent
08-09-2006, 15:18 PM
The second one is identical, only that the issue date is 18th May not 3 July 2004 and date of expiry is now 17th July
This one is invalid in any event since it gives less than 2 months' notice.

MrShed
08-09-2006, 16:55 PM
Are you saying the tenant doesn't have to wait for the S21 notice to expire? So if a tenant gets an S21 that expires in two months time (i.e. they are given two months notice) then they can leave immediately (so long as it's after the end of the fixed term) without having to pay the rent for those two months?

If this is what you are saying then why wasn't the answer to the OP that it doesn't matter which of the two S21 notices is valid as the tenant can leave anyway?



I suspect you are right here. I don't think it actually matters which S21 is valid.

Surrey
08-09-2006, 17:16 PM
One thought, if you don't understand what the tenants liabilities are in this somewhat muddled situation then how can it be fair on the tenants as they can't be expected to understand it either. The agent and the landlord are supposed to be the professionals that know what they are doing, not the tenant.

Very clear, as usual, thanks Ruth Less, pms and lawstudent.

Thing is, I thought I DID understand the situation but other bits of information that have come to light have added mud to previously clear waters.

I didn't even know of the existence of the first S21 which the agent issued without saying anything. I asked them to give the tenant notice, they said "oh dear, less than 2 months till the end of the tenancy" and then issued the second one, not explaining to me that the tenant could move out at the end of the term - which you would have expected them to know and advise of as I'd said I wanted the place back, seeing as they're the supposed "experts". They then wrote to me telling me they had issued "official notice to quit" but didn't send me a copy of it, just told me what the expiry date was. They did lots of other silly things too, one reason why I'm not using them any more. They were indeed supposed to be the "professionals", that's why they were employed in the first place, but they've made lots of mistakes that I am now having to carry the can for. :mad:

pms, the tenant hasn't actually paid anything for their extra stay, I was wondering what they ought to have paid (and also what they would have paid if the agent had done their job properly). As for what notice was issued, both sections are mentioned in the (agent's standard) S21 notice that was issued. Is this another example of them not doing things properly?

lawstudent, 18th May to 17th July IS 2 months, just like 30th August 2003 to 29th August 2004 is one year. Unless you count 2 months as EXcluding the dates specified but I didn't think that was the case though I totally accept I could be wrong. Or again, is this an example of the agents not doing things properly? Total can of worms or kettle of fish, however you look at it.

Edit: did a search for "sword", found loads of stuff that I hadn't seen when just looking at the forums from the front bit, so thanks for that tip. Some very interesting stuff, but much of it makes reference to a S21 notice that requires possession "AFTER" a date, rather than "ON" a date as in the S21 notices issued in my particular case. I read on... <smiley inserted but not allowed...>

lawstudent
08-09-2006, 19:08 PM
lawstudent, 18th May to 17th July IS 2 months, just like 30th August 2003 to 29th August 2004 is one year. Unless you count 2 months as EXcluding the dates specified but I didn't think that was the case though I totally accept I could be wrong. Or again, is this an example of the agents not doing things properly? Total can of worms or kettle of fish, however you look at it.
2 months' notice has to be 2 clear months - ie excluding the dates of service and expiry. Looks like this can of fish is a dog's breakfast.

Surrey
08-09-2006, 20:01 PM
2 months' notice has to be 2 clear months - ie excluding the dates of service and expiry. Looks like this can of fish is a dog's breakfast.

And it would seem to me (from all those sword of Damocles threads I'm ploughing through! :D) that the correct expression on an S21 is "requires possession on OR AFTER" a given date which is 2 months or more later than the issue date.

As I see it, the S21 notices that my ex-agents issued are very restricted in their power as they state that possession is required "ON" a date, with no mention of "OR AFTER". So as soon as the tenants don't leave on the specified date given on the first S21 notice, that notice becomes invalid and the tenancy turns periodic. After that the tenant either sticks with the second notice (if it had been dated correctly but wasn't, according to lawstudent) and leaves on, and is liable for rent until, the date on 2nd notice or if the second notice is defective (as lawstudent suggests) they have to give one month's notice ending on a date at the end of a period, which might well mean they have to give nearly 2 mths' notice. The more I look at this, the more it appears the letting agents deserve a slap on the wrist.

"What a tangled web they weave, when rubbish letting agents practice to deceive..." apologies to Mr Shakespeare!)

Ruth Less
09-09-2006, 00:28 AM
"I give you notice that I require possession of dwelling house known as [[address of property]]] Date of Expiry On [[date of expiry of original fixed term - 20th June]] or the day on which a complete period of your tenancy expires next after the end of two months from the service of this notice, if this notice is given after the expiration of the fixed terms. Signed by agent and dated.

Reading the dates more closely I don't think the first notice is valid either. If I've read it right then it expires on 20th June which is the date of expiry of the fixed term. This is wrong, it should expire after that date:

http://www.letlink.co.uk/Facts/Lfacts26.htm

"Also, a notice should not be dated to expire on or before the last day of the tenancy as this would be invalid. For example, where the tenancy was due to expire on December 31st, then the section 21 notice could be served on or before October 31st, and the notice dated to expire ‘after December 31st’."

So the agent has served two S21 notices that look OK at first glance but on detailed inspection are both invalid. I don't think the tenants are wrong to rely on the notice to leave though, they are not responsible for the agent's mistakes. They could have challenged the notices if they'd wanted to, but either didn't spot the mistakes or wanted to honour the notice anyway. The question is should they be penalised for that? Anyone know?

lawstudent
09-09-2006, 07:54 AM
And it would seem to me (from all those sword of Damocles threads I'm ploughing through! :D) that the correct expression on an S21 is "requires possession on OR AFTER" a given date which is 2 months or more later than the issue date.

As I see it, the S21 notices that my ex-agents issued are very restricted in their power as they state that possession is required "ON" a date, with no mention of "OR AFTER". So as soon as the tenants don't leave on the specified date given on the first S21 notice, that notice becomes invalid and the tenancy turns periodic.
Not quite so. Your agents might get a lot wrong, but here is something they (presumably inadvertently) got right. As far as S21(1)(b) is concerned there is no specific requirement for the notice to say either "on" or "after" - it simply has to be "not less than two months' notice". If the tenants don't leave on the date specified in the notice, the tenancy does indeed become periodic but the notice does not "become invalid". If I ask somebody to stop hitting me at once, and he goes on hitting me, it does not make my request invalid; it simply makes it ignored.

lawstudent
09-09-2006, 08:01 AM
"Also, a notice should not be dated to expire on or before the last day of the tenancy as this would be invalid. For example, where the tenancy was due to expire on December 31st, then the section 21 notice could be served on or before October 31st, and the notice dated to expire ‘after December 31st’."
It is true that if the last day of the tenancy is 31 December, a notice dated to expire on or before 31 December would be defective. But a notice served on 31 October dated to expire "after 31 December" would not be valid either, because it does not give the required minimum two clear months. It would need either to be served earlier or dated later. This is not a merely academic point, courts regularly throw out cases based on defectively dated notices.

Surrey
09-09-2006, 12:00 PM
It is true that if the last day of the tenancy is 31 December, a notice dated to expire on or before 31 December would be defective. But a notice served on 31 October dated to expire "after 31 December" would not be valid either, because it does not give the required minimum two clear months. It would need either to be served earlier or dated later. This is not a merely academic point, courts regularly throw out cases based on defectively dated notices.Ah, so the whole stuff I wrote in the original post has changed - see what I mean about additional information muddying the water?

From what you say, the original S21 notice would NOT be valid if it was a fixed term AST with no break clause as it gave the expiry date as the SAME date as the date of expiry of the fixed term. However, to add more mud, there WAS a 6mth break clause in the agreement which makes it look like the notice is now valid again because it gave at least 2 months' notice (See information from Pain Smith quoted by paul_f in a thread on S21s at the start of the tenancy http://www.landlordzone.co.uk/forums/showthread.php?t=2137&page=5)

...UNTIL you look at the terms of the break clause, which states: "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..." so does that mean that because the notice was given BEFORE 4 months in it's again not valid? I accept I might be overly picky on this but it could be argued, etc etc...

What I am trying to get out of all of this is two things:
1. What is the tenant's liability IN FACT, and
2. What would her liability have been if the agent had done their job properly.

As for her liability IN FACT, this may depend on which S21 notice is valid if any. As a minimum I assume she is liable to pay for the additional days she was there. Depending on which, if any, of the notices is valid, she may be IN FACT liable for more but it is unlikely that a judge would order this.
a) If the first S21 notice were valid (not sure if it is or isn't), regardless of the validity of the second, I assume she'd be liable to pay for the days she was there and no more.
b) If ONLY the second were valid (though I know already it's not) I'm assuming her liability would have been up to the end of the second notice period, or the date on which I regain possession of the property, whichever is earlier. (Oh god, could I be shot for getting back into the house before that period was up?!?!??)
c) if NEITHER notice is valid, what would her liability be? (To give me notice instead but she didn't, so liable to when?)

I suspect a judge will agree with Ruth Less and say that whichever notices were valid, the tenant's only liable for the days she stayed and she shouldn't have to pay for the agent's mistakes.

The reason I'm asking what would have been the case if the various notices had been properly issued is to see the difference between what was the case IN FACT and what would have been the case if they'd done their job properly and issued the correct notices (or at the very least TOLD me about the first one!) I want to see if I might have any case against the agent, i.e. has them not doing what they were paid to do to an adequate standard, in other words their negligence, caused me further actual loss.

Ruth Less
09-09-2006, 16:00 PM
It is true that if the last day of the tenancy is 31 December, a notice dated to expire on or before 31 December would be defective.

Right. So Surrey's first S21 is defective.


But a notice served on 31 October dated to expire "after 31 December" would not be valid either, because it does not give the required minimum two clear months. It would need either to be served earlier or dated later.

Not so sure on this as the quote (from letlink by the way) is talking about the notice being served not issued as was the case for Surrey's second (also invalid) S21. Issued doesn't allow for time in transit but isn't served when it's actually arrived making letlink correct after all?

Ruth Less
09-09-2006, 16:22 PM
I want to see if I might have any case against the agent, i.e. has them not doing what they were paid to do to an adequate standard, in other words their negligence, caused me further actual loss.

Impossible to say as you haven't told us exactly what you instructed the agents to do other then you wanted your place back.

Surrey
09-09-2006, 16:46 PM
Impossible to say as you haven't told us exactly what you instructed the agents to do other then you wanted your place back.

First and most important, to act in a professional manner. For them to issue a notice (that wasn't valid but they thought it was or they wouldn't have issued it) and not say anything about its existence when I said I needed the tenant to finish (either because they forgot or because they were being arse-y), and then to issue a second one that was also faulty and tell me I wouldn't have my property back until 17th July, is surely not acting in a professional manner. Because of the duff info they gave me, I changed my plans and timings for what happened to the property next, so they were the direct cause of loss of rent.

At the very least I would think I could get my agency fees back, but they led me to believe that I would be paid rent until 17th July. Negligence by omission kinda fing. Don't really know, still digesting all of the previous posts and the millions of words I've read over the last few days about S21 notices!

lawstudent
10-09-2006, 08:30 AM
Not so sure on this as the quote (from letlink by the way) is talking about the notice being served not issued ... but isn't served when it's actually arrived making letlink correct after all?
No, letlink appears to be wrong. Two clear months are required between the date of service and the date of expiry.

Ruth Less
10-09-2006, 13:39 PM
No, letlink appears to be wrong. Two clear months are required between the date of service and the date of expiry.

Letlink:
"Also, a notice should not be dated to expire on or before the last day of the tenancy as this would be invalid. For example, where the tenancy was due to expire on December 31st, then the section 21 notice could be served on or before October 31st, and the notice dated to expire ‘after December 31st’."

I make this served on October 31st (deemed to have arrived).
Clear month 1: 1st Nov to 30th Nov.
Clear month 2: 1st Dec to 31st Dec.
Expires after December 31st.

So it looks like two clear months between the date of service and the date of expiry to me, can you say exactly why it isn't?

Surrey
10-09-2006, 14:41 PM
Letlink:
"Also, a notice should not be dated to expire on or before the last day of the tenancy as this would be invalid. For example, where the tenancy was due to expire on December 31st, then the section 21 notice could be served on or before October 31st, and the notice dated to expire ‘after December 31st’."

I make this served on October 31st (deemed to have arrived).
Clear month 1: 1st Nov to 30th Nov.
Clear month 2: 1st Dec to 31st Dec.
Expires after December 31st.

So it looks like two clear months between the date of service and the date of expiry to me, can you say exactly why it isn't?

In my inexperienced position I agree with Ruth Less. It's that wretched phraseology again. Is it "ON" 31st December, "ON OR AFTER" 31st December of "AFTER" 31st December. As I read it, if it's "AFTER" then it's ok. If it had said "ON OR AFTER" or "ON" then it wouldn't have been.

pms
11-09-2006, 12:48 PM
Very clear, as usual, thanks Ruth Less, pms and lawstudent.



pms, the tenant hasn't actually paid anything for their extra stay, I was wondering what they ought to have paid (and also what they would have paid if the agent had done their job properly). As for what notice was issued, both sections are mentioned in the (agent's standard) S21 notice that was issued. Is this another example of them not doing things properly?

Surrey from what you say above the notice issued with both sections on would in my opinion be defective and would be thrown out.A S21 would need to have one section or the other but not both.As for rent you would be able to claim the days overstayed as "mesne profits" but then you would have to weigh up if what you get in one hand(5days) is worth recovery action or not which you would be well within your rights to claim back but getting the tenant to pay may be another matter.

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2003/1219.html&query=mcdonald&method=all

The above piece of case law may help

Surrey
11-09-2006, 20:05 PM
Thanks pms, will read and inwardly digest that piece of case law. As for action, well the tenant's already started it so there isn't a question of whether it's worth it or not, I'm having to defend myself so put in a counterclaim otherwise I wouldn't get anything at all for the rest of the stuff she didn't do over and above not paying for the last few days. Not so sure you're right on "A S21 would need to have one section or the other but not both". As I read it, if the correct section is mentioned then the notice would be valid. However it's already been discovered that they are both invalid because the dates on them are wrong, so I won't sweat that one...

lawstudent
12-09-2006, 11:38 AM
In my inexperienced position I agree with Ruth Less. It's that wretched phraseology again. Is it "ON" 31st December, "ON OR AFTER" 31st December of "AFTER" 31st December. As I read it, if it's "AFTER" then it's ok. If it had said "ON OR AFTER" or "ON" then it wouldn't have been.
This is correct. And Ruth is correct. And letlink was correct. And I was wrong. Sorry. I shall eat a large slice of humble pie :)

pms - you say: "A S21 would need to have one section or the other but not both". But there is onl;y one relevant section: Section 21 - a notice does not need to state which subsection is being relied on.

pms
12-09-2006, 12:37 PM
This is correct. And Ruth is correct. And letlink was correct. And I was wrong. Sorry. I shall eat a large slice of humble pie :)

pms - you say: "A S21 would need to have one section or the other but not both". But there is onl;y one relevant section: Section 21 - a notice does not need to state which subsection is being relied on.

Thank you for correcting me.The point that I was trying to make was that if a Section 21 notice contains both S21(4)(a) and S21(1)(b) would that not make the notice invalid.There was a post on here a little while back when a poster issued a S21(1)(b) when he should have issued a S21(4)(a) after the tenancy had gone periodic.

lawstudent
12-09-2006, 13:48 PM
Thank you for correcting me.The point that I was trying to make was that if a Section 21 notice contains both S21(4)(a) and S21(1)(b) would that not make the notice invalid.There was a post on here a little while back when a poster issued a S21(1)(b) when he should have issued a S21(4)(a) after the tenancy had gone periodic.
I'm not sure what you mean by the notice "containing" S21(4)(a) and S21(1)(b). Whether a notice is valid or not depends on precisely how it is worded. A notice could validly refer to both subsections, while relying on only one of them.

Surrey
12-09-2006, 21:07 PM
I'm not sure what you mean by the notice "containing" S21(4)(a) and S21(1)(b). Whether a notice is valid or not depends on precisely how it is worded. A notice could validly refer to both subsections, while relying on only one of them.

I suspect a couple of words are missed out and it should read "the notice containing REFERENCE TO S21(4)(1) and S21(1)(b)"
A generic Section 21 notice, as issued by the rather inept (goodness I'm being very polite!) letting agents reads as follows:

"Housing Act 1988
Section 21(1)(b) and Section 21(4)(a)
Assured Shorthold Tenancy - Notice requiring Possession (Notes)

To
(Name and address of tenant)

From
(Name and address of landlord)

I give you notice that I require possession of dewlling-house known as
(address)

On
(date of expiry)

or the day on which a complete period of your tenancy expires next after the end of two months from the service of this notice, if this notice is given after the expiration of the fixed terms.

Dated"

Just triple-checked that second notice I've been whittering on about and the last para as well as accompanying notes do mean that the second notice is invalid, as it was ISSUED before the expiration of the fixed terms but as the date required (17th July) is AFTER the expiration, the date should have been the end of a period, not just any old date that was less than 2 clear months from date of service. Notes accompanying state "The length of the notice must be at least 2 months and, if given before or on the day on which the fixed term comes to an end, will expire on the date shown overleaf".

And that's the sort of service you can get from an ARLA registered letting agent...

Ruth Less
13-09-2006, 00:15 AM
the second notice is invalid, as it was ISSUED before the expiration of the fixed terms but as the date required (17th July) is AFTER the expiration, the date should have been the end of a period, not just any old date that was less than 2 clear months from date of service.

A S21 issued before the end of the fixed term but that expires after the end of the fixed term can end on any old day so long as the notice period is long enough. It doesn't need to expire at the end of a period, that's just for notice issued after the end of the fixed term thats issued once the tenancy has become periodic.

Your second S21 was invalid as lawstudent already explained the notice wasn't long enough.

lawstudent
13-09-2006, 07:05 AM
Surrey - there doesn't seem to be any intrinsic problem with a generic notice referring to the two subsections in this way. The only thing I can see wrong with this one (although I suspect it would not be a fatal defect, provided sufficient notice were given) is that it says "on" (date of expiry) which would be fine for 21(1)(b) ... but 21(4)(a) says that it should be "after". I don't know what a judge would make of it but I don't see the point in tempting fate by straying too far from the wording used in the act. (Ruth is right about notices served before the end of the fixed term)

Surrey
13-09-2006, 09:05 AM
Surrey - there doesn't seem to be any intrinsic problem with a generic notice referring to the two subsections in this way. The only thing I can see wrong with this one (although I suspect it would not be a fatal defect, provided sufficient notice were given) is that it says "on" (date of expiry) which would be fine for 21(1)(b) ... but 21(4)(a) says that it should be "after". I don't know what a judge would make of it but I don't see the point in tempting fate by straying too far from the wording used in the act. (Ruth is right about notices served before the end of the fixed term)

All acknoweledged, thanks again. I only brought it back up as you'd questioned pms's wording about "a notice containing...". As has been generally agreed, neither of the notices in my case is valid because of the dates.

There are several notes in the notice that make it rather unclear for the person receiving it exactly which date is referred to so in practical terms for a tenant receiving it, it's very fuzzy. As for the court, I suspect it'd pass in most cases because of the two notes I mentioned - "I require notice on [[[date]]] or the day on which a complete period of your tenancy expires next after the end of two months from the service of this notice, if this notice is given after the expiration of the fixed terms" and "The length of the notice must be at least 2 months and, if given before or on the day on which the fixed term comes to an end, will expire on the date shown overleaf".

The two notes are a bit contradictory if you were to issue a notice less than 2 months before the end of the fixed term, as it would appear from the first note that the date is the end of a rental period but from the second note that it's the date specified. Wonder what a court would say if those two dates didn't happen to coincide. Would they say a notice was invalid because the date cannot clearly be ascertained?

lawstudent
13-09-2006, 10:04 AM
The two notes are a bit contradictory if you were to issue a notice less than 2 months before the end of the fixed term, as it would appear from the first note that the date is the end of a rental period but from the second note that it's the date specified. Wonder what a court would say if those two dates didn't happen to coincide. Would they say a notice was invalid because the date cannot clearly be ascertained?
There is certainly that risk. This notice does seem a bit self-contradictory and I would not use it myself.

Surrey
13-12-2006, 04:02 AM
This was a very interesting discussion, which I have re-read as I'm back in court with this tenant to see if I can get compensation for stuff she didn't do before she left, and for unpaid rent. I'm asking for the full period up to the last date on the (invalid) second S21, let's see what the judge says.

Thanks again for a very interesting discussion, I only hope it helps me!

Surrey
22-05-2007, 21:38 PM
In case anyone's interested, here's how it turned out.

Both S21 notices were deemed to be invalid, as I had gathered myself before the case.

Tenants were obliged to pay for the additional period they stayed.

However I answered one of the judge's questions a bit vaguely in court so 'lost' the bit of the argument for up to the end of the second S21: tenant said I'd AGREED to them leaving when they did, when in fact I didn't agree - they'd just TOLD me they were doing it. But as I didn't make that clear enough in my answer, the judge took their side and gave them the benefit of his doubt.

Tenant also had to pay what I had been requesting for the cleaning/replacement of locks etc etc that I had been asking for. That money was taken from the deposit along with the initial court fees and awarded to me, the balance was returned to the tenant. As it had been paid into court by the agent there wasn't a problem with getting the deposit money distributed.

However, my costs didn't include my time for the wasted hearing that had to be put off because tenant hadn't followed instructions re serving me with paperwork.

So if you can possibly avoid going to court, do so.