sec 21(4) a notice because we called environmental health on landlord

[MrShed]

Obviously, here is not neccessarily the place for a political debate about it. But, the ability to evict tenants for zero reason, although in specific instances (such as your own) seems unfair, it is actually very important to the private rental market - in particular, its ability to act as a proper market and to be fluid. This is for the benefit of landlords but also tenants.

[boggey1]

shame as read all this on the tenants having rights, but it seems you have rights as long as you suffer and keep go shut lol

[boggey1]

gob shut not go

[boggey1]

what this scale thing to rate your replys lol

[boggey1]

he has stated he wants to move back in but he wont move in at all

[Aequitas]

The words I have highlighted etc

 

Put shortly:

 

A section 21 notice does not bring a tenancy to an end. We know that because section 5(1) HA 1988 says that no action on the part of a landlord can bring an assured tenancy to an end. If the notice does not bring the tenancy to an end for the landlord it cannot bring it to an end for the tenant.

 

At more length:

 

Before the HA 1988 came into force a tenant under a periodic tenancy wishing unilaterally to bring a tenancy to an end needed to serve a notice to quit and nothing in the Act does specifically alters that. The question is therefore whether there is any justification for the view that a tenant served with a section 21 notice is entitled to leave (whether before or after the notice expires) without giving a notice to quit.

 

I cannot help feeling that if Parliament had intended that the service of a section 21 notice should give the tenant the right to leave without notice it would have said so in the Act.

 

The first argument that a tenant does not need to give notice to quit is that a section 21 notice is an offer to surrender. The first hurdle that anyone advancing that argument has to negotiate is to persuade a court that where an act requires a notice to be served that the notice serves any purpose other than that set out in the act. The HA 1988 provides that a section 21 is a preliminary to applying to the court for possession and no more. It is a bit of an oddity in that the act does not (specifically) provide for the notice to have any effect. It is certainly not a notice to quit and does not impose on the tenant any obligation to leave. The fact that the act requires the landlord to state he requires possession is no more than a matter of form.

 

If we assume that a statutory notice can have a secondary purpose, then the next question is whether the wording amounts to an offer to surrender. Let’s suppose for a moment that the tenancy is not an AST. You write a letter to the tenant simply saying “I require possession of the property on…” I do not think that that is an offer to surrender, but rather an invitation to treat. There is not enough there to constitute an offer for a tenant to accept and in any event could only be an offer to accept a surrender on the date specified in the letter. If such a letter is not an offer to surrender, then a section 21 notice cannot be an offer to surrender.

 

Even if the notice does constitute an offer, the tenant has to accept it for there to be an agreement to surrender. We then run into the problem of whether offer and acceptance comply with section 2 of the Law of Property (Miscellaneous Provisions) Act. They almost certainly will not because “a contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document or, where contracts are exchanged, in each.” We can add that an actual surrender, as opposed to an agreement for surrender, needs to be made by deed or by operation of law, which involves unequivocal acts by both parties.

 

I think therefore that following the service of a section 21 notice notice there can only be a surrender if:

 

1. The parties specifically agree one.

 

2. There is a surrender by operation of law. You need a scenario where there is something done by both parties which is inconsistent with the tenancy continuing or where one party does something inconsistent with the tenancy continuing and the conduct of the other party is such that it would be inequitable for the tenancy to continue. The tenant simply leaving the premises is not enough.

 

The second argument that a tenant does not need to give notice to quit is that a section 21 notice gives the tenant an equitable right to leave because he is only complying with the landlord’s request. I initially found this argument attractive, but on reflection had to reject it. I repeat the point I made above: the HA 1988 does not provide for a section 21 notice to have any effect and the fact that the Act requires the landlord to state he requires possession is no more than a matter of form. Apart from that, it is an essential requirement of a tenancy that at any moment of time the parties know the earliest date on which it can be brought to an end. If after the service of a section 21 notice a tenant can leave when he chooses without serving a notice to quit (and whether you argue that he can leave before or after the expiry or date or both) that would fly in the face of a basic principle of landlord and tenant law. Of course statute can change basics principles of law, but there is nothing in the HA 1988 that changes the principle that the parties must know the earliest date on which a tenancy can be brought to an end.

[boggey1]

oh my god i need a rest now lol i think i get it ,is that you are telling me both parties need to agree to comply for the sec 21 notice to be valid

or have i allowed my self to be blinded by jargon

[raydetinu]

the s21 notice is just that a notice that the LL wants repossesion, you do not have to leave by the date in the s21 notice ( it must be filled out corretly, dates etc to be valid anyway). You can give LL notice of a date after the s21 notice date if you wish, one month or two months down the line.

He can start court proceedings for eviction, and would have to state why etc.! and if you have already given him notice then I dont think courts would make any sooner without a good reason. Eventually though if LL wants you out it will happen!

[MrShed]

the s21 notice is just that a notice that the LL wants repossesion, you do not have to leave by the date in the s21 notice ( it must be filled out corretly, dates etc to be valid anyway). You can give LL notice of a date after the s21 notice date if you wish, one month or two months down the line.

He can start court proceedings for eviction, and would have to state why etc.! and if you have already given him notice then I dont think courts would make any sooner without a good reason. Eventually though if LL wants you out it will happen!

 

There will be no "why" question asked if the landlord begins court proceedings for eviction based upon a validly served S21 notice, regardless of any notice the tenant may or may not give.

[raydetinu]

I did say if the the tennants had already given notice to leave; then it would be why are you here!

[Ed999]

A section 21 notice does not bring a tenancy to an end. We know that because section 5(1) HA 1988 says that no action on the part of a landlord can bring an assured tenancy to an end.

 

 

I think that this is a mis-reading of section 5(1).

 

It's not the landlord's action in serving notice which brings the tenancy to an end, it's the tenant's action in vacating.