Help please - Tenancy not AST!

[Scudder]

Dear all,

I'm really worried. I posted a few days ago about what I thought was an invalid Section 21 notice to quit. Today I found out that I've had the wrong tenancy since June - according to the local housing officer anyway. Nobody noticed until now that maybe I had the wrong agreement. The letting agents gave me an AST with the deposit held in a scheme. I would never have agreed to anything else. However, it seems that the level of rent takes it over the limit for an AST. I am extremely worried and upset as the 6 months tenancy is up at Christmas. The agents have been referring all the while to the AST, including serving an invalid notice. That's why I went for advice - to try and get them to serve me with a new, valid one. I need to remain in the house as I've nowhere to go at the moment. The landlord wants the house back.

 

I don't know where I stand with all this, apart from the fact that they have to go to court for possession, which may take 8 weeks. However, I don't want it to go that far because it will have an effect on my child. I feel the lettings agent is guilty of professional misconduct (for lots of other reasons as well). The landlord hasn't signed anything and all my dealings have been through the LA. There are still many outstanding issues re repairs, safety etc. I've not had a reply from management for 4 weeks!

 

Everyone I've spoken to seems to think they are entitled to two months notice and the right to a periodic tenancy at the end of a fixed term. Not so if the rent is over £25,000 a year? The rent is lower than most similar properties round here and not extra high for London. Is the legislation very out of date? Maybe 100s of people who rent have got the wrong agreements. It's a 3 bedroom house at £500 per week. Most round here are £650 plus. The condition isn't great.

 

Please someone correct me if I've got this all terribly wrong....

[MrShed]

Tricky. What is the term in the tenancy agreement defining the termination/eviction process? Exact wording? Also, do you pay the rent monthly and if so what amount do you pay monthly? Stupid question I know, but its the £500 per week amount stated in the tenancy agreement?

[Scudder]

Hello - I hope the LA isn't reading this! It's an unusual situation - I was rehoused by my insurance company. The LA demanded all the rent up front in order to bring the rent down to £500.

This is what is written in the agreement, which is a standard ARLA template AST Agreement.

RENT £13000.00 six monthly

 

At the end of the tenancy.

Usual blurb about cleaning, removing rubbish etc. Return keys on the last day, etc.

Only mention of notice is:

Service of Notices etc. by the Landlord or Agent

In accordance with section 196 of the Law of Property Act 1925 as amended by the Recorded Delivery Service Act 1962; if the landlord or his agent delivers a Notice or document (and retains reasonable evidence of that delivery) required to be served under this agreement or any Act of Parliament, to the premises (or the last known address of the tenant if different) by hand or sends it by recorded or registered delivery or by first class post, addressed to the tenant then the tenant will be treated as though they have received it.

Also - my copy is only signed by me and my witness. It is not dated either. I was never given a signed copy by the LA, even though I signed it in their office. They photocopied it and gave it back.

[MrShed]

There must be some form of notice period mentioned surely?

[Scudder]

Now you mention it, yes I suppose there should but I've looked over the document, which is quite lengthy and there doesn't appear to be anything other than this clause that I've mentioned, plus some stuff about right of forfeiture re Housing Act Ground 8 and Housing Act Grounds 10 to 17 (as amended 1996).

 

Everyone has been just assuming the statutory 2 months notice on an AST.

[MrShed]

OK. That makes things more difficult. This is not straightforward at all.

 

Basically you now have a contractual tenancy. You have NO statutory tenancy, and as such you have no rights established in law, other than those granted by common law with regards to contracts. As there is no contractual term establishing a notice period, only a "reasonable" notice need be given. This can either be classed as one month, or one rental period. In this case I would go for one month. Perhaps more importantly, there is no requirement to go to court to regain possession, nor is there protection from unlawful eviction.

 

You are, I'm afraid, in a very sticky situation. Three pertinent questions(actually sorry 4):

 

- How was notice served?

- How long notice was given?

- What is the reason for the eviction? Are you in arrears or similar or not?

- Do you have any reason to believe that the agent and/or landlord may be aware of the fact the tenancy is not in fact an AST?

[Scudder]

Hi,

1. The notice was served as an S21 fixed assured shorthold. Dated later than the expiry date of the notice and therefore invalid anyway.

2 The tenancy term finishes on 28th December.

3. The rent is fully paid up until that point. The landlord wants the house back so that they can move back in (apparently).

4. The agreement I've got has Assured Shorthold written all over it and in big letters on the front page.

5. I've got a certificate of TDS (even though this is turning out not to be an AST)

6. The Landlord doesn't get involved.

7. The LA have sworn that they've delivered a valid S21, so they are operating as if it's a AST. They are unwilling to provide me with a copy of this 'second' notice.

8. The tenancy agreement I've got is not signed by them or dated.

 

My mother (!) has just read out to me that if this is a 'common law tenancy' then I have 4 weeks notice (either party) before court proceedings kick in. My local housing aid advice tell me that court proceedings must be followed at the end of the term without notice and can take two months. No fast track allowed for a common law tenancy.

[MrShed]

When was notice served? And was it posted? Or hand delivered? If posted, was it recorded delivery? Also, does it mention in the tenancy agreement what the rental amount is, and what rental period? (IE £xxx per month/week).

 

This is NOT a common law tenancy. I can see no reason to believe that the landlord will require a court order to evict you. I also see no reason to believe the 4 week timescale, as this is not a common law tenancy.

 

You have a massive thing in your favour however - it would appear that it is only yourself who knows about this, not the landlord. Therefore, I would expect in practical terms, that the issue would go to court and be dismissed. At this point, the landlord would obviously realise the issue, and I would expect to be evicted VERY quickly after this point - perhaps a matter of days.

[Scudder]

The notice was hand delivered through the letter box. It was signed November 7th. It is an invalid notice because it's filled out incorrectly. The LA is swearing there was a 2nd 'valid' notice put through the door on the same day...not true. They are refusing to give me a copy.

The rent is £500 per week verbally.

In the agreement it is written:

Rent: £13000 six monthly.

 

From reading the Housing Act 1988 I see that my rent is over the limit for an AST, therefore my agreement is not applicable. They should have either charged me less or given me a different agreement?

[MrShed]

- The notice is not invalid, as there is no allowance for notice period(or any prescribed information) in your contract. Therefore any notice, as long as it provides "reasonable" time frame, is valid.

 

- Whether an AST has been provided is immaterial - the "contractual" tenancy merely takes the terms that have been provided within the contract. Even though it has been mistakenly given as an AST, the agreement still stands, just without actually being an AST and therefore the statutory protection that this would entail.

 

Sorry I realise that none of this is good news for you!

[Scudder]

Thanks for your reply...I'm afraid I'm still not sure. I've spoken to the association that wrote the agreement and they've said that the notice period does not need to be in the agreement because it's statutory - 2 months - section 21.

 

But, my copy is not signed or dated. There is no hand-written binding date. They've said that therefore it's not a valid agreement. There may be another copy in the LAs office that is signed and dated.

 

Regardless of anything, surely the LA is guilty of negligence or professional misconduct? At the very least, incompetence...

[MrShed]

The association are wrong. There is no S21 applicable, as this is not a tenancy regulated by statute.

 

What is the basis for negligence/misconduct? They have admittedly been slightly incorrect in their assumptions, but that is it, and does not appear to me to be negligence/misconduct, certainly not in the way you mean it, which is in order to acheive some sort of different outcome.

[MrShed]

I suppose the key question that is arising is what do you want as a result of this? You are entitled to your deposit back either way if you have not caused the damages. It just means you go via small claims instead of the TDS. The agreement is not valid per se, however this practically makes no difference, as you have a verbal tenancy.This tenancy still does not become an AST due to the levels of rent. Eviction wise, they are actually giving you more notice than you are entitled to, due to their confusion as to the state of the tenancy.

 

The only thing I can see you perhaps getting towards is the guaranteed 3 x the amount of the deposit as it was not in a TDS scheme. This is never going to happen, as you have no AST. If you really wanted to push it, I guess you could attempt to argue that the statutory rights have been IMPLICITLY stated due to the fact the tenancy agreement states it is an AST. However, I feel the chances are unbelievably slim of this argument washing.

 

So to end with the same question, what would you like the outcome to be?

[Aequitas]

For a tenancy to be an AST it must comply with all the statutory conditions. Even if only one of the conditions is absent the tenancy cannot be an AST. The rent payable exceeds the statutory limit and therefore the tenancy cannot be an AST.

 

The agreement you signed was not "wrong" - it was simply misdescribed.

 

Clearly you have a tenancy since you have a tenancy agreement and have been in occupation paying rent. You just have a tenancy that does not have the (very limited) protection afforded by the Housing Act 1988.

 

The Section 21 notice is of no effect. The service of a section 21 notice is a preliminary requirement to applying to the court for an order for possession in respect of an AST. You do not have an AST.

 

Your tenancy will expire at the end of 28th December 2007. On and from 29th December you will technically be a trespasser and remain in the property at the landlord's will. Since you remain in occupation at the landlord's will you will be a licensee and the landlord must, as provided by Section 5(1A) of the Protection from Eviction Act 1977, give at least 4 weeks' notice to bring the licence to an end. Once the notice has expired, the landlord can apply to the court for an order for possession.

 

If at any time on or after 29th December the landlord (or his agent)demands or accepts rent, then your position changes. A periodic tenancy arises which can only be terminated by serving a common law notice to quit. Assuming the tenancy is monthly, the period of notice must be at least a month and must end on the first or last day of a period of the tenancy.

 

If you wish to stay in the property as long as possible, my advice would be to go into the agent's office on 29th December* and pay a month's rent. If the rent is accepted that will create a monthly periodic tenancy. Unless the agent is on all the ball and rushes round that day with a notice to quit ending the tenancy on the 28th or 29th January 2008, the earliest date on which the tenancy can be brought to an end by a notice to quit is the 28th or 29th February 2008. If the agent is complacent and is relying on the S 21 notice, then of course no notice to quit will be served until after you file your defence against the application for possession in which you will point out that the S 21 notice is of no effect as the tenancy is not an AST.

 

*This day is in fact a Saturday and in any event in the Christmas period and so the Agent's office may be closed. If that is the case, then write a letter saying you enclose a cheque for rent for the month commencing 29th December. You can in fact deliver the letter before the 29th, but it does not technically become rent until the 29th. Do not deliver the letter too early, though, as you do not want to give them time to think and return the payment.

 

Alternatively, if the rent is paid by standing order and will be paid on or before the 29th, let it go through, although the point that it does not become rent until the 29th will still apply.

[onlynameleft]

Given that there is no prescribed form for a section 21 notice we can't say whether the notice served is sufficient to be a common law notice to quit also.

After all, all it needs to say is I want you out after 'x' date - there's no necessary impediment as far as I can see to that being a common law NTQ also.

Can the OP post the wording of the notice?

[Scudder]

Thank you Aequitas for your very full post...I'm still digesting it, but some of what you say has been said by others i've spoken to. Re my using the word 'wrong' - yes it was misdescribed. But it was also a condition on my part, before I took up the tenancy, that I had an AST. The agreement is over 17 pages long and AST is in bold on the front and on every single page thereafter. In light of my experience with the LA, I consider that I have been misled, whether by ignorance or as a deliberate act I don't know.

The only thing I'm wondering about is whether the LA can say that the rent includes anything other than rent. There is a cleaner that arrives every two weeks that I don't pay for. It's not in the agreement.

 

onlynameleft - the notice was in a 'form' like presentation. It was a notice to quit under Section 21...etc...etc.. With boxes filled in. Date of expiry of notice 28th December. No actual wording saying 'please vacate on such and such a date..'

[MrShed]

Can I re-ask the question - what would you like the outcome of this situation to be?

[Scudder]

Sorry MrShed, got bogged down in things and forgot to reply.

 

What I need from all of this is a decent place to live for the time being with my son. I need to stay here for a few more weeks at least.

 

I would like the LA to apologise at the very least, act in a professional manner, make good their mistakes to date etc etc. I think I need to post another thread with a different question to avoid confusion!

[Aequitas]

Given that there is no prescribed form for a section 21 notice we can't say whether the notice served is sufficient to be a common law notice to quit also.

After all, all it needs to say is I want you out after 'x' date - there's no necessary impediment as far as I can see to that being a common law NTQ also.

Can the OP post the wording of the notice?

 

In the unlikely event that the S.21 notice was in the form of a common law notice to quit it would still be of no effect. This is because the tenancy is currently a fixed term tenancy which comes to an end by effluxion of time - no notice to quit can be served in respect of it. Any tenancy which may come into being when the fixed term ends does not yet exist - you cannot give notice terminating something that does not exist.

 

Apart from that, The Housing Act 1988 specifically states that a notice to quit is off no effect in relation to an assured tenancy. Accordingly, a notice required by the Act as a preliminary step to bringing an AST to an end cannot possibly operate as a notice to quit. So, if the notice refers to S.21 (not an essential requirement but standard practice) it cannot have been intended to be a notice to quit.

[Aequitas]

I think you need to forget the AST point and the agent's lack of professionalism as pursuing those avenues will get you nowhere.

 

When you asked for a AST what did you think it would give you that you would otherwise not have had? As things have turned out you are in fact going to be able to stay at the property longer because the tenancy is not an AST. If it were an AST the landlord, having served his S.21 notice, would be able to begin proceedings for possession on 29th December. As it is, and for the reasons explained above, no proceedings can be begun until the end of January at the very earliest.

 

When it comes to the landlord getting back possession the difference between an AST and a non-AST (which is not an assured tenancy) is essentially one of procedure.There is never going to be a great difference in the length of time between the first step and an order for possession.

[onlynameleft]

I think you need to forget the AST point and the agent's lack of professionalism as pursuing those avenues will get you nowhere.

 

When you asked for a AST what did you think it would give you that you would otherwise not have had? As things have turned out you are in fact going to be able to stay at the property longer because the tenancy is not an AST. If it were an AST the landlord, having served his S.21 notice, would be able to begin proceedings for possession on 29th December. As it is, and for the reasons explained above, no proceedings can be begun until the end of January at the very earliest.

 

When it comes to the landlord getting back possession the difference between an AST and a non-AST (which is not an assured tenancy) is essentially one of procedure.There is never going to be a great difference in the length of time between the first step and an order for possession.

 

I'm sorry but I still think your point concerning the section 21 notice not acting as a common law notice to quit is arguable at best.

My view is the section 21 is quite capable of being construed as a notice to advise that the landlord requires possession on expiry of the fixed term. Then there is nothing stopping him issuing possession proceedings the day after the fixed term has expired.

The intention was of course that the tenant would have notice to determine his AST on that date and the landlord would be able to issue proceedings immediately thereafter if needed. The intention of the common law notice to quit is accordingly the same; all that differs is that the tenancy is not an AST.

Notice to quit may well be of no effect in relation to an assured tenancy but as you have said yourself this is not an assured tenancy. You cannot in my view take the opposite view as a matter of right that a clear notice requiring possession on a given date (whether served erroneously pursuant to an irrelvant statute or not) is not sufficient to act as a pre action notice allowing the landlord to issue immediately on its expiry (given of course that the right to remain afforded by the fixed term tenancy expires at the sale time).

I don't follow your logic that the landlord must serve a further notice following expiry of the fixed term as the tenant then becomes a licensee. He only becomes a licensee if the landlord gives him licence to remain whether expressly or by conduct.

If a notice advising the landlord wants possession on expiry of the fixed term is served then at best the tenancy becomes one at sufferance if the tenant remains and the landlord can issue immediately.

Of course, I agree the position would be different if the landlord accepted rent for a period following expiry of that fixed term or otherwise affirmed the continued existence of some sort of tenancy/licence. The OP has stated that the rent was payable 6 monthly in the sum of £13,000. I doubt even the most incompetent agent would accept such a sum without clear instructions. However, in my view, it is more than arguable that the landlord could issue on 29 December (if the courts were open which they are not). He could however issue on 2 January although he would not of course be able to use accelerated possession procedure given that this is not an AST.

So the OP is likely to be able to stay until February at least.

[Scudder]

nowhere.

 

If it were an AST the landlord, having served his S.21 notice, would be able to begin proceedings for possession on 29th December.

 

The LA think I have an AST, the notice they served me was invalid. Therefore they are now claiming to have served me a second, valid notice (untrue). This brings the expiry to 8th January. However, both Shelter and my local housing aid bod tell me that as they think I have an AST they should be serving me a valid notice now - - taking me to at least the 14th February and beyond before proceedings take place.

 

My concern is therefore, because it appears not to be an AST, it is possible that I could be out well before the start of Feb - because when they find out their error they can go straight to court proceedings. I could be found liable for costs?

 

I've also been told by a legal service that I subscribe to that my AST stands as it's an agreement!

[onlynameleft]

Let them serve a new notice, stay till it expires and let them issue proceedings when it expires if they wish. Plead ignorance.

They would have some difficulty going back on their position if at some point they did discover it was not an AST; if they serve a new notice requiring possession after 14 Feb then in my view you are entitled to rely on it.

[MrShed]

If they give you notice to expire after a certain date, this would act as a contract IMO, and therefore would very much struggle to go back on this date. If they were to issue a new notice then unless they serve it "without prejudice", this would invalidate the original notice anyway.

 

Having obviously read your post on what you would like the outcome to be, I would suggest two things:

 

- The chances of you getting an "apology" is slim to none. The breach is very minor, and they are unlikely to apologise to you for accidently giving you more rights than you are entitled to! I realise it is a point of principle, but one in this situation not worth wasting your time on.

- You must face the fact that sooner or later you WILL be leaving the property. With this in mind I would suggest finding alternative accomodation as soon as possible. I am not even sure(although my knowledge in this field is sketchy) whether the landlord has to even get a court order to evict, as there is no statutory rights involved in this case. Even if he is supposed to, there is precious little reason for him to do so, as he does not have the same "fear" of unlawful eviction as landlords of ASTs do. Therefore, I would be looking to get somewhere arranged tout suite, as you have precious little security of tenure now.

[Aequitas]

On re-reading my first post I see that one the one hand I said that Scudder was a trespasser and on the other a licensee. That is clearly contradictory. I was thinking of two possible outcomes without explaining how they can arise.

 

The position at common law (that is to say without the intervention of statute) when a fixed term tenancy comes to an end is that if the tenant remains in occupation without the landlord's consent the tenancy is designated a "tenancy at suffrance" and the landlord may claim possession at any time. A tenancy at suffrance is not a true tenancy, and the "tenant" may therefore be regarded as a licensee. As soon as the landlord objects to possession the tenant/licensee becomes a trespasser. He was not a trespasser at the outset of the tenancy at suffrance because immediately before it started he was in lawful occupation as a tenant under the fixed term tenancy.

 

Whether trespasser or licensee, if the landlord demands or accepts rent, then the position changes as I explained above and the tenancy can only be ended by a common law notice to quit.

 

If no periodic tenancy arises then the landlord is entitled to immediate possession, but can only obtain it by a court order. I suggested above that if Scudder is a licensee he is entitled, under the Protection from Eviction Act 1977 to notice before posession procedings are begun. Having looked at the Act (which I did not do before and ought to have done) I see that the requirement to give notice applies only to periodic licences. Accordingly no notice needs to be given. This makes it important that Scudder should try to create a periodic tenancy by offering rent as I suggested above if he wants some breathing space before the correct proceedings are begun. I say "correct" proceedings because if the landlord wishes to obtain possesion he must apply on the correct grounds - applying on the basis that the tenancy is an AST is not the correct grounds.

 

I must insist that the S.21 notice cannot be a notice to quit. The tenancy is currently a fixed term. A fixed term ends automatically - neither landlord nor tenant need to serve a notice to quit to bring it to an end. There is no form or precedent for a notice to quit to bring a fixed term tenancy to an end for the simple reason that it is not needed. Further, no notice to quit can be served in respect of a tenancy that does not exist and the periodic tenancy cannot start until the fixed term comes to an end and is of course dependent on the landlord demanding or accepting rent.

 

Whilst I have no authority for saying so, I think that a notice to quit must make it clear that it is a notice to quit. That is why I maintain that a notice served under an act that contains provisions that make a notice to quit ineffective in respect of the type of tenancy to which the act relates cannot be taken to be be a notice to quit since it cannot have been intended to be a notice to quit. The argument "I served a S.21 notice thinking that the tenancy was an AST, but now that I know that it is not I really meant it to be a notice to quit even though it does not look like any notice to quit I have ever seen before" is not going to sound too good.