Section 21 notice

[furnitman2003]

Hi

Its slightly off topic, but would appreciate you views anyway.

 

I've had no end of greif from the benefit system over the last few months, having just starting to get on top of this (hopefully), I'm now getting grief from my Estate Agents, ( I'm Private Renting, awaiting a council house ).

 

Not only have I been **** on by the DWP / Atos, now my estate agent has done a dirty.

 

My question is,

How widespread is the practise of estate agents sending out Section 21 Notices of eviction to everyone a couple of months prior to a Shorthold Tenancy coming to an end?. Regardless as to wether its to be renewed or not, I have just been caught out big time, and face eviction at the end of this month.

 

I'll start a thread in another section over the weekend.

just thought I'd slip it in here while I'm here, thanks

Alan

[loan_ranger]

Hi Alan, sorry to learn of your section 21. I had this happen to me on new years day 2009, however I turned this to my advantage and got fast-tracked into social housing even though I hadn't previously registered on the councils "home finder scheme". The council endlessly dragged their feet and gave me all sorts of misinformation to put me off, so I had to get shirty with them and threaten them with a County Court action to be followed by complaining to the Local Government Ombudsman. In the end I got 84 housing points and then a 1 bed flat just for me.

 

My advice is that you hand the council a letter applying as homeless under the Housing Act 1996 - Parts VI and VII, as amended by the Homelessness Act 2002 - I made them photo-copy a stamped and dated copy for me to keep as proof.

 

When I was going through this I found this document rather helpful:

Homelessness Code of Guidance for Local Authorities

"In order to achieve lower homelessness "targets" Councils are being unhelpful. Misinformation, incompetence and "gate keeping" are widespread. It helps if you know how the Councils are supposed to apply the law because they pay scant regard to their duty of homelessness."

 

Best regards,

Paul.

[furnitman2003]

Thanks paul.

I am already on the council housing list, have been bidding and finally got awarded a flat for me and my family, yesterday, trouble is it's not ready yet, posibly middle of August, had offered the estate agent another months rent, on a periodic tenancy basis to cover the gap between my original 6 month tenancy (ending 29th July)and moving into Flat in mid August, and allowing the obligatary 1 months notice I had to give.

The estate agent would not agree to this, insisting that I've got to be out by the 29th or they will get a court order.

I'm afraid I lost it then, and shouted at them to go ahead, i'll see them in court.

with hindsight this may have been a mistake, I was just so angry.

Alan

[loan_ranger]

I think (in fact I'm sure) the Estate Agent/Landlords have to give you 2 months notice, this has to begin at the start of your "rent period" (i.e. the day you normally pay your rent) otherwise it will be invalid.

Then the LL would have to apply to the county court - which takes another month, then it could be up to another six months if you oppose your LL, then the LL has to get a bailiff to enforce the repossession order.

I span my notice out to nearly 4 and 1/2 months - I think you'll be OK for mid-August. Cos my new LL is a HA and didn't require a deposit I was able to use the deposit from the previous LL for a new cooker and a few things.

 

Best of luck,

Paul.

 

Regards,

Paul.

[Planner]

Potential 'assumptions' being made here that could be leading to incorrect answers.

 

As Loan_ranger has said, you need to be given two months notice via a S.21 (b ). This can be given to you at anytime within your fixed term tenancy and must be dated to end after the end of your fixed term tenancy (any point after the end of your tenancy), so what loan_ranger has said above is not correct (his advice relates to periodic tenancys and s.21 (a ) notices.

 

So is it a s.21 (b ) and does it give you a full two months notice from date of service (would have to be on or before 29th May) and does it require posession after the end of your tenancy i.e. 30th July for example? If not its invalid. Your deposit must have also be protected in a TDS scheme.

 

The agents will not be able to seek a court order until this 2 months has expired. A court order will likley take another 2-3 months with a further month or so for the baliffs to remove you. So even if the notice is correct, you would be long gone into your new property by then.

 

You are aware that at the end of a fixed term tenancy, ANY fixed term tenancy (AST) that it automatically becomes a periodic (rolling month on month) tenancy? Nothing can remove this right from you. So at midnight on the 29th July, your tenancy will become a periodic tenancy, requiring you to give one months notice to end it - so you can end it 29th August if you give a months notice before 29th July. Write your notice, make a photocopy for yourself, hand deliver it to the agents and get a recipt is you dont trust them.

 

Good Luck.

[furnitman2003]

Hi Planner, thanks for that.

The Section 21 Notice was dated 22nd May 2010,

and says:-

We -------,Agents for and on behalf of your Landlord(s) Mr and Mrs --------------, HEREBY GIVE YOU NOTICE that your Landlord or in the case of joint Landlords at least one of them requires possession of the said property on the 29 July 2010 AND THIS NOTICE is given under the provision of Section 21 of the Housing Act 1988.

 

I did query this at the time we received it, and was told its nothing at all to worry about its just normal practice, they do it to everyone.

 

Yes thanks, I have been made aware regarding it becoming a Periodic Tenancy, but when I pointed this out to the estate agent, they said "who told you that, we dont do periodic tenancy's as our landlords dont like them, and for Insurance purposes".

 

I'm just going to sit tight, let them do their worst, they've lost out, I was going to pay a months rent, but not now, I'll be moved by then.

 

Thanks again, Alan

[furnitman2003]

I've been reading other threads on this forum, and after reading the following, something else has occurred to me.

 

"However, if the rent is payable quarterly the tenant must be given not less than three months notice. If it is payable six monthly or annually the tenant must be given not less than 6 months notice".

 

 

Although the tenancy agreement states "£xxxx" monthly rent, I actually paid six months rent up front, a couple of days before moving in.

Does this make any differance as to how much notice they have to give me.

 

One more question, I also read on 'Planners' post, (thanks for that, by the way), that after a six month fixed term tenancy ends it automaticaly becomes a periodic tenancy, and its my right, so who do I report the estate agent to? as they claim I'm wrong.

 

Alan

[furnitman2003]

Further to my previous post.

I contacted my estate agent today, among other things I mentioned the section 21 notice they issued, and the way they issued it, they claimed it is a legal obligation to issue one, I dont dispute this, but I do dispute the timing of it, and what I consider to be an unfair way of issuing it, when I have done nothing to deserve it.

They are also claiming they do not have to supply me with my LL's address, despite my requesting it in writting, and whilst I am still a tenant.

 

any views welcome

Alan

[Webranger]

There's some confusion here. Let's look at the issues.

 

1. If the LL/agent wants to be sure that he CAN get a tenant out on the last day of the Agreement, then he MUST issue a S.21 Notice at least 2 months before. I always do it at the beginning of the tenancy, explaining that it does not meant that I WILL want them to go.

 

2. But if LL issues the S.21 Notice before he has protected the deposit and given proper notice to the tenant, then the Notice is invalid.

 

3. Your agent seems to have told you on one visit that you must go on 29th but on another that it is just a matter of form - which is puzzling.

 

4. I don't agree with Planner's interpretation of the right to go into a periodic tenancy (we have disagreed over this previously). If you have had a valid S.21 Notice and you don't move out, then you have no tenancy, not a periodic one.

 

5. Which brings us to the matter of how long it would take to get you out by the court method. The answer is as others have indicated and why the agent should argue over a couple of weeks I have no idea. For them to pay the court fees for a possession order which won't come to court until after you have moved out would be an act of stupidity.

 

6. So I suggest that you show them your correspondence from the council/HA so that they know you are not lying, and then pay TODAY 'cos it's gone 29th the one month's rent that is now due and then move out during the month at your convenience. If you don't pay for this month, they can then get a CCJ against you. Should they refuse to accept it, get them to sign a note saying so.

 

7. As your Agreement specifies monthly payments, that controls the notice period due even though you actually paid six months upfront.

[furnitman2003]

Thank you for that webranger.

 

"(3. Your agent seems to have told you on one visit that you must go on 29th but on another that it is just a matter of form - which is puzzling").

 

When I was issued the section 21 notice, (dated 22nd May and which I received 26th/27th May) I questioned it immediately, and the agent said "its normal practice, we do it to everyone, its nothing to worry about".

It was only nearing the end of the six months tenancy, when I wrote to them offering a further one months rent, and thereby being in a position to give them the required one months notice, that they said "No, we dont do periodic tenancies, you will need to leave on 29th July", then went on to say, "if your not out, we will go to court and get an eviction order".

 

Just an update.

I've now just been informed that the new flat wont be ready untill mid-end September, The housing ass. have said they will ring my estste agent,and explain what is happenning.

This is going to make it awkward.

 

Alan

[Webranger]

Forgive me having a chuckle at that news. If the HA speak to the agent, there should not be a problem. Even if they got to court before you moved in these circumstances the court would give you time to move to the HA property. So the agent will just have to grin and bear it.

 

But you MUST pay the rent for August and again for September. You had better, right now give the agent a notice to leave on 29th September.

 

I take it your deposit is protected?

[Aequitas]

4. I don't agree with Planner's interpretation of the right to go into a periodic tenancy (we have disagreed over this previously). If you have had a valid S.21 Notice and you don't move out, then you have no tenancy, not a periodic one.

 

Can you clarify that please? Are you saying that, if a landlord serves a section 21 notice while the fixed term is in progress and the tenant remains in occupation when the fixed term ends, no statutory tenancy arises?

[Aequitas]

You are aware that at the end of a fixed term tenancy, ANY fixed term tenancy (AST) that it automatically becomes a periodic (rolling month on month) tenancy? Nothing can remove this right from you. So at midnight on the 29th July, your tenancy will become a periodic tenancy, requiring you to give one months notice to end it - so you can end it 29th August if you give a months notice before 29th July. Write your notice, make a photocopy for yourself, hand deliver it to the agents and get a recipt is you dont trust them.

 

No notice to terminate a statutory periodic tenancy can be given before it starts. This is because its existence is contingent upon the tenant remaining in occupation. Until the tenant has remained in occupation there is no certainty that the tenancy will arise and until it arises it does not exist. You cannot give notice to end something that does not exist. Accordingly the earliest date on which notice could have been given (that is received by the landlord or agent) is 29th July and it would have to have been given to expire on 29th August as otherwise the period of notice would have been less than a month*. (A tenant's notice to quit can expire on either the first or last day of a tenancy period.)

 

*At least that is what I think; I cannot remember off hand if the day of notice is excluded.

[Webranger]

Can you clarify that please? Are you saying that, if a landlord serves a section 21 notice while the fixed term is in progress and the tenant remains in occupation when the fixed term ends, no statutory tenancy arises?

 

Of course I am. The law doesn't provide for a tenant who ignores a lawful notice to quit, to automatically acquire a new legal tenancy. That would provide lawful benefit for an unlawful act. Even our housing law is not that much of an ass.

 

In another thread http://www.consumeractiongroup.co.uk/forum/residential-commercial-lettings/270618-can-i-finish-my.html there's a LL actually using this sort of argument in reverse to say that a 6 month tenancy is actually an 8 month tenancy because the tenant has to give two months notice at the end of the 6 months.

 

Both ways the argument is nonsense.

 

Certainly it takes time to get a recalcitrant tenant out at the end of the 6 months, but that is due to the inbuilt delays of our legal system, not because there's a new periodic tenancy in place.

[Aequitas]

Of course I am. The law doesn't provide for a tenant who ignores a lawful notice to quit, to automatically acquire a new legal tenancy. That would provide lawful benefit for an unlawful act. Even our housing law is not that much of an ass.

 

I have to disagree with completely.

 

A section 21 notice is not a notice to quit. Notices to quit only apply to periodic tenancies and not to fixed term tenancies; they cannot apply to fixed term tenancies because they come to an end by effluxion of time. In relation to periodic tenancies a section 21 notice cannot be a notice to quit because section 5 (1) says: "the service by the landlord of a notice to quit shall be of no effect in relation to a periodic assured tenancy."

 

Apart from that, section 5 (2) is quite clear. If a fixed term assured tenancy comes to an end and the tenant remains in occupation he is entitled to remain in possession and "his right to possession shall depend upon a periodic tenancy arising by virtue of this section."

 

A section 21 notice is a bit of an oddity since it has no effect on the tenancy without some further action; serving one does not on its own bring a tenancy to an end. That is why a tenant under a periodic tenancy cannot just walk away when he pleases when a section 21 notice is served.

 

Should you require judicial confirmation at the level of the Court of Appeal you may refer to McDonald v Fernandez [2004] 1 WLR 1027, [2003] 4 All ER 1033 where Lady Hale quite specifically states that a section 21 notice is not a notice to quit.

[furnitman2003]

Sorry, I did'nt want to start an argument, lol.

 

Webranger. yes my deposit is protected.

 

I did offer to pay the agent the 'August's' rent, but had to use some of it to move some of my belongings into storage in case they tried to get us out. Can I tell them to take the rent out of the deposit?

 

And no, I don't trust the agent, I've since found out, though I paid six months upfront, the estate agent paid the landlord monthly, is this normal, (as the estate agents makes on the interest, while its in their account) dos'nt seem right to me.

[Webranger]

Furnitas: No you can't tell the agent to take the rent out of the deposit. Your tenancy agreement almost certainly expressly forbids it and it would give the agent a real cause against you. Pay him whatever you can on Monday and follow up with the rest as soon as you possibly can beg or borrow it. You need to keep the moral highground.

 

No, it was not ethical of the agent to deal with the rent like that, but unfortunately there is no law that says estate agents have to act ethically.

 

Aequitas: No, I'm not plain wrong. It turns out we are talking about two different S.21 notices. I'm talking about a 21 (1) and you are making reference to a 21 (4).

 

I suggest every visitor to this thread reads http://www.newlawjournal.co.uk/nlj/content/section-21-or-bust which gives a very full explanation including quotes of Lady Hale.

 

Her remarks were in reference to a 21.(4) but I think " This is not a notice to quit. The landlord will not get possession without the tenant's consent unless he goes to court." is just playing with words. I not certain that "Notice to Quit" has any current legal definition but in normal speech requiring possession and telling the occupant to quit have no meaningful difference.

 

So I maintain that a tenant who has been served a valid S.21(1) and does not leave on the due date, does not have a periodic tenancy. If he had, the LL would have to serve another notice which is ridiculous. I fact, LL can take court action immediately because the tenant is remaining in the premises without a valid tenancy. Your interpretation of S.5(2) is only correct if no S.21(1) has been served.

 

Or can you quote case law that says otherwise?

 

In fact, I have been assured -though I cannot validate this - that a valid S.21(1) properly served during the fixed term can be used long after the end of the fixed term without the need for a new S.21(4).

[Aequitas]

Let's look at section 21(1) as amended:

 

Without prejudice to any right of the landlord under an assured shorthold tenancy to recover possession of the dwelling-house let on the tenancy in accordance with Chapter I above, on or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy, a court shall make an order for possession of the dwelling-house if it is satisfied—

 

(a) that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than an assured shorthold periodic tenancy (whether statutory or not); and

 

(b) the landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than two months’ notice in writing stating that he requires possession of the dwelling-house.

 

The words in red make it clear that the notice continues to be of effect if there is a periodic tenancy in force; accordingly no further notice needs to be served. Further, the wording clearly takes it for granted that a statutory periodic tenancy can arise when a section 21 notice has been served during a fixed term.

 

Even without that, the effect of section 5 (2) cannot be doubted; no exception is made for the case where a landlord has served a section 21 notice during the fixed term.

 

Regrettably the wording required for a section 21 notice has sown a lot of confusion because it requires the landlord to say that he requires possession. That makes it sort of look like a notice to quit. A notice to quit given by a landlord is more than just a notice that demands possession - it actually brings a periodic tenancy to an end. (And of course a notice to quit given by a tenant states that the tenant will give up possession and equally brings a periodic tenancy to an end.)

 

A notice under section 21 (1) cannot be a notice to quit because a notice to quit can only relate to a periodic tenancy.

 

A notice under section 21 (4) cannot be a notice to quit because section 5 (1) says: "the service by the landlord of a notice to quit shall be of no effect in relation to a periodic assured tenancy" and it cannot possibly be the case that the Act requires the service of a notice that is of no effect.

 

Accordingly either way Lady Hale is correct and not playing with words - she just does not do that!

 

That a number of sites which ought to know better refer to section 21 notices as notices to quit is to be regretted.

 

Your statement that "a valid S.21(1) properly served during the fixed term can be used long after the end of the fixed term without the need for a new S.21(4)" is correct. For the record though it should be noted that once a new fixed term is agreed a new notice needs to be served - see the words in green and red above.

[furnitman2003]

Hi, what have I started

 

to clarify, my 'Notice 21' does not state (1) or (4)

I just reads:

HOUSING ACT 1998

SECTION 21 NOTICE TERMINATING FIXED TERM

ASSURED SHORTHOLD TENACY

We -------,Agents for and on behalf of your Landlord(s) Mr and Mrs --------------, HEREBY GIVE YOU NOTICE that your Landlord or in the case of joint Landlords at least one of them requires possession of the said property on the 29 July 2010 AND THIS NOTICE is given under the provision of Section 21 of the Housing Act 1988.

 

 

Does this help.

 

Alan

Edited August 1, 2010 by furnitman2003
typo

[Planner]

Webranger, If as you incorrectly state, a periodic does not automatically arise after the end of a fixed term tenancy if a s.21 has been served, could you enlighten us to what status the 'tenant' does have and how you would remove them from the property. Obviously it cant be s.21 or s.8 as they both related to assured tenancys which you have expressly stated the tenant now no longer has.

[Webranger]

Aequitas has answered Planner's question: if there is NOT already a S.21 in place then a S,21(4) has to be served, but if a S.21(1) HAS been served that is all that is necessary and a new notice for 2 months does NOT have to be served. That's why I nowadays always serve a S.21(1) along with the notice of deposit protection - just in case.

 

Aequitas may be technically right then, but we don't differ in the practicalities - that a valid S.21(1) served 2 months or more before then end of the fixed term tenancy can be acted upon in court immediately, in which case the periodic tenancy is meaningless. Whether it exists or not makes no difference to the outcome. It's no good telling a tenant that he has a periodic tenancy but it affords him no protection at all. To me that's just playing with words.

 

Which brings us to the important matter of Alan's predicament. The Notice doesn't have to say (1) or (2) that I can see, and this seems to be valid - although as you have copied it here it says Housing Act 1998 at the top and 1988 at the foot, but I doubt that would make a difference.

 

My advice is still as in my post 30th July at 14.32

[Planner]

. To me that's just playing with words.

 

The irony

[Webranger]

I posted a reply to Planner, but it has disappeared! I'll try again.

 

If a S.21 has been served more than two months before the end of the fixed tenancy, then that is the instrument for going to court for a possession order. Of course, if the LL takes no action on the S.21 then the tenant does have a periodic tenancy, but the S.21 already served is still "live," as we have discussed on another thread.

[Webranger]

Oops! It didn't disappear, I was on the wrong page, this was a duplicate reply to an earlier post of Planner's. Ignore.

[Planner]

Ignore.

 

Without question