Tenant not moving after handing his notice

[mariner51]

My brain hurts, but maybe I see a glimmer of light (end of tunnel or train approaching?)

 

AIUI so far,

Fixed term T provisions can only be ended by Court Order, or exercise of existing break clause by T or LL

Break clause activation after required Notice period, ends the fixed term of T ahead of period in excess of 6 months (legal min for AST) at which time it morphs into a Stat Periodic T.

If T does not vacate on appointed day, T would then have to serve further Notice under SPT rules (at least 1 clear rent period, served at least before & expiring on day before rent due), unless mutually accepted surrender of T was agreed

LL can only effect repo with a Court Order but a valid s21 (issued after any deposit is protected in an approved scheme AND reqd info sent to T) becomes effective after 2 months, can be issued early during fixed term, and could be 'live' imm the fixed term ends and remains live until the T ends.

Still with me?

OP has confirmed deposit protection and agent sent reqd info to T (when?)

I remain unclear if a s21 has been served and when.

 

T initiated break clause provision in May, reqd 2 month Notice period expired 14? July

s8 repo order is quicker but only discetionary if rent arrears are less then 2 months but factor in the bailifs lead time to effect a lawful eviction if T does not move out when ordered.

 

Migraine!

[rick321]

thanks Mariner

T has confirmed he cannot move out despite notice to vacate. T claims his hours have been reduced to part time and cannot pay full rent and has offered reduced rent , which is due today.

T has received secured deposit details along with AST agreement in Aug 10. Confirmed by LA.

I cannot see a mutual surrender agreement in the tenancy agreement ( that is if I understood what you asked correctly)

I have spoken to a solicitor and they are asking for money that I do not have available , just to look at this. Now I have to look at taking out a loan.

No s21 has been issued as I need a solicitor to do this?

What can I do? Should I ask T to put everything in writing.

What do you mean T has to provide further notice. What about rent arrears , I also have a new tenant lined up in 10 days.

[MrShed]

You do not need a solicitor to instigate a S21 eviction process. I am inclined to side with Aequitas, in that no tenancy actually currently exists due to his notice. However, I am not sure as to how this means that tenant can be removed. Undoubtedly a court order for possession would still be required.

[mariner51]

I predict further problems for OP if he has new T expecting to move in in 10 days and no cash reserve for the legal costs of his 'business'

 

Even if judge granted a repo order today for immediate effect, OP would have to pay Court-appointed bailiffs to execute it and there is a queue.

Even if expiry of Ts Notice ended the T, I doubt OP could exclude him without risking a breach of the peace at least.

[Ed999]

Taking out unnecessary words we can rewrite the sub-section as follows:

 

(5) If, on or before the date on which a [statutory periodic] tenancy is deemed to have been granted, the person who is to be the tenant under that [periodic] tenancy does anything which would otherwise have the effect of bringing the [periodic] tenancy to an end the action shall be of no effect.

 

In other words it means only that the tenant cannot do anything to end the periodic tenancy before it begins. The tenant can nevertheless :

 

a. surrender or exercise a right to break to end the fixed term (whilst it is running); or

 

b. surrender or give a notice to quit to end the periodic tenancy (once it is running).

 

I think that has to be the case because otherwise "the surrender, notice to quit or other document referred to in paragraph (b ) above shall be of no effect" means that the tenant cannot serve a valid notice exercising a right to break.

 

 

Your argument is convincing. This is what I thought: the tenant can't do anything to avoid a statutory tenancy arising.

 

The tenant's break notice only ends the contractual tenancy.

 

The logic of this is that the landlord has to give a section 21 notice now, if he wishes to end the periodic tenancy. Or, alternatively, he can seek possession under a section 8 notice if there are rent arrears under the periodic tenancy.

[Aequitas]

Your argument is convincing. This is what I thought: the tenant can't do anything to avoid a statutory tenancy arising.

 

The tenant's break notice only ends the contractual tenancy.

 

The logic of this is that the landlord has to give a section 21 notice now, if he wishes to end the periodic tenancy. Or, alternatively, he can seek possession under a section 8 notice if there are rent arrears under the periodic tenancy.

 

I think the effect of section 5(2) is clear: if a tenant exercises a right to break a fixed term no statutory periodic tenancy arises when the fixed term comes to an end.

[rick321]

I agree with Mariner that I should have had a cash reserve for legal costs. But I now know I was being very naïve.

It seems there is nothing to do but hire a solicitor.

Even then I can only get a possession order after due process? Which may sitll take some time.

 

I assume in order to get any rent arrears and income lost would have to sue the T. Which will incur even more costs and since T cannot pay, may be pointless?

Rick

[Ed999]

The tenant can nevertheless :

 

a. surrender or exercise a right to break to end the fixed term (whilst it is running); or

 

b. surrender or give a notice to quit to end the periodic tenancy (once it is running).

 

 

My meaning seems to have gotten lost in translation.

 

I agree with you: The tenant can ... give a notice to quit to end the periodic tenancy (once it is running).

 

In this instance, because the tenant has not done that, but says that he will hold over in possession, the landlord must give a notice under section 8 or section 21 - seeking possession under the statutory periodic tenancy which has arisen - before he can apply to the court.

[Ed999]

I can only get a possession order after due process? Which may sitll take some time.

 

I assume in order to get any rent arrears and income lost would have to sue the T. Which will incur even more costs and since T cannot pay, may be pointless?

Rick

 

 

You can -

 

a. give the tenant a section 21 notice, giving him 2 months to leave, and thereafter sue for a possession order - but you can't recover any rent arrears under the section 21 procedure; or

 

b. give the tenant a section 8 notice, giving him 2 weeks to leave, and thereafter sue for a possession order and for the rent arrears.

 

You might not need a Solicitor. Here are some details that might help you -

 

 

Section 21 notice

 

The tenancy can be ended by the landlord giving the tenant 2 months notice, in writing, taking effect after the first six months of the tenancy ends, and expiring on the last day of a rent period (known as a "section 21 notice") [section 21(4), 1988 Act]. No reason has to be given. For instance, if a dispute arises - concerning any matter - the landlord can end the tenancy in this way.

 

Where the tenant paid a rent deposit after 5th April 2007, if the deposit has not been protected (under the Tenancy Deposit Scheme) any section 21 notice given to the tenant is invalid, so cannot end the tenancy; but a section 8 notice (for non-payment of rent, or any other breach of the tenancy agreement) can validly be given.

 

If a valid notice is given, and the tenant moves out (and returns all the keys) on or before the termination date in the notice, the tenancy - and the rent - ceases on that date.

 

If a valid notice is given, but the tenant does not move out by the termination date in the notice, the landlord must then apply for a court order (he cannot apply until AFTER the termination date in the notice), which usually takes a further month to obtain.

 

 

It can be dangerous to specify a calendar date in a section 21(4) notice, as the date specified might be invalid.

 

The safest approach is to use the form of words approved by the Court of Appeal in Lower Street Properties Ltd v Jones [1996] 2 EGLR 67, CA:

 

"TAKE NOTICE that possession is required, by virtue of section 21(4) of the Housing Act 1988, of the dwellinghouse known as ............ at the end of the period of your tenancy which will end after the expiry of two months from the service upon you of this notice."

 

 

 

Section 8 Notice

 

This is a means of recovering rent arrears.

 

This is a notice given by the landlord under section 8 of the Housing Act 1988. It's explained in more detail in the FAQ -

 

• Shorthold Tenancy - possession, eviction and notice

 

The various grounds on which the landlord can give a section 8 notice are set out in full in Schedule 2 of the 1988 Act -

 

• http://www.legislation.gov.uk/ukpga/1988/50/schedule/2

 

In brief, a tenancy can be ended by such a notice if there are (or have been) rent arrears or some other breach of the tenant's obligations. Those obligations are the duties set out in the written tenancy agreement, and the tenant's statutory duties set out in the 1988 Act.

 

Only 2 weeks notice has to be given before court proceedings can be started.

 

However, the procedure under section 21 of the Act is less complicated, and has the benefit of the accelerated possession procedure (i.e. there is no court hearing). A section 21 notice might, therefore, be a quicker means of eviction; but no claim can be made under section 21 for rent arrears or for damages (e.g. for disrepair).

 

 

Further information about the Section 8 grounds under Schedule 2 of the 1988 Act.

 

Grounds 1 to 8 are mandatory [s.7(3), Housing Act 1988]: if the ground exists when the section 8 notice is served AND when the case is heard in court, the judge supposedly can't refuse possession. In reality he will typically give the tenant extra time to comply with the requirements.

 

The other grounds are discretionary [s.7(4), Housing Act 1988]: the judge can decide that the tenant's breach of contract is not severe enough to warrant evicting him.

 

 

A notice given under section 8 is invalid unless it's in the prescribed form. Form No 3 prescribed by the 1997 Forms Regulations must be used for such a notice (it can be purchased from any Law Stationers). A facsimilie of the form can be viewed at:

 

• http://www.legislation.gov.uk/uksi/1997/194/made

 

The Section 8 procedure is summarised at:

 

• http://tenancyanswers.ucoz.com/index/ast_tenants_in_breach_of_contract/0-36

 

 

Letter Before Action

 

When delivering a section 8 notice, include this letter to the tenant -

 

Dear Sir,

 

Premises at _______________________

 

With regard to your tenancy, I enclose notice under section 8 of the Housing Act 1988. I require you to pay to me the rent arrears, in the sum of £_____.

 

This sum is arrived at as follows:

 

a. in respect of the period from ________ to _________ (less £___ paid for that period), totalling £_____.

 

b. in respect of the period from ________ to _________ (less £___ paid for that period), totalling £_____.

 

If I have not received the total amount of the arrears within fourteen days from the date of this letter I will commence a possession claim in the County Court, also claiming all arrears of rent, without further notice to you.

 

Yours faithfully

 

You will of course complete the blanks in the letter as appropriate. Keep a photocopy of the letter.

 

 

Court Forms

 

Court forms are available at:

 

• Court Forms

Edited July 16, 2011 by Ed999

[Aequitas]

My meaning seems to have gotten lost in translation.

 

I agree with you: The tenant can ... give a notice to quit to end the periodic tenancy (once it is running).

 

In this instance, because the tenant has not done that, but says that he will hold over in possession, the landlord must give a notice under section 8 or section 21 - seeking possession under the statutory periodic tenancy which has arisen - before he can apply to the court.

 

My understanding of the position is that while the fixed term was running the tenancy exercised a right to break, but subsequently announced he was not leaving. If that is the case then when the fixed term ends there will be no statutory periodic tenancy even if the tenant remains in occupation. The landlord does not need to serve any sort of notice but can apply for possession on the day after the break notice expires.

[MrShed]

OP I have totally neglected the other consequence of what the tenant has done.

 

As he has no legal right to remain in the property at the expiry of the notice, "holding over" comes into effect.

 

This in theory (at least) means that DOUBLE rent is payable from the point of expiry of notice, until such a point that he actually vacates.

 

You need to make this crystal clear to him:

- That the notice, once served and accepted, could not be rescinded unilaterally by one party. Only with the agreement of both parties.

- That as the notice is still in place and valid, he has no legal right to remain in the property following the expiry date of the notice - he will, in effect, be a trespasser.

- That following the expiry of the notice, double rent is legally due due to "holding over" and that you will immediately proceed to court for possession and rent payments.

[Steve__M]

Never heard of "holding over" so I'll share my Google "knowledge":

 

http://blog.painsmith.co.uk/2009/11/22/tenants-notices-to-quit-holding-over-and-double-rent/

[Ed999]

Double rent

 

Heck, if we start a discussion about 'double rent' we may lose sight of the important question of whether the contractual or statutory tenancy still exists, failure to correctly address which will doom the landlord's possession application entirely.

 

May I simply draw your attention to this point, that the 1737 Act appears on the face of it to apply only to giving a notice to quit, i.e. a means of ending a periodic tenancy. Which is to say, it does not appear to apply to a break notice given under a break clause.

 

• Distress for Rent Act 1737

 

 

 

Periodic Tenancy

 

In my opinion, a failure by the claimant landlord to serve a notice of seeking possession - under section 8 or section 21 of the 1988 Housing Act - will doom any court action to fail; without a notice of seeking possession, the county court will not grant possession.

 

It is clear that a contractual break notice can only end the contractual tenancy. The 1988 Act provides that a statutory tenancy arises if the tenant does not leave, and there are no words qualifying the point: nothing is said in the Act to the effect of a statutory tenancy not arising if the contractual tenancy is ended by the tenant.

[MrShed]

Ed, the fact that holding over exists, and the explicit circumstances around it include (very specifically) the exact circumstances listed here, I would suggest that it in fact absolutely reinforces the point that no tenancy exists following the expiry date of the notice given. Otherwise, why would holding over exist if it couldnt be used?

[Ed999]

The o/p landlord potentially stands to lose a lot of money, if he begins a Court action and it gets thrown out after a couple of months due to his failure to comply with the tenancy laws, as his tenant is now unable to pay the rent.

 

Therefore, please, in this thread would everyone consider that fact before posting.

 

This is not a good place to air opinions about what the law ought to be!

 

The o/p will tend to disregard postings which are not properly supported by a link to a relevent statutory provision or a case report.

 

 

 

Section 5(5)

 

In my opinion, section 5(5) of the 1988 Housing Act has the effect of preventing the contractual break notice from also terminating the statutory periodic tenancy, which section 5(1) of the Act creates when the tenant remains in occupation after the end of the fixed term, however it ends.

 

A notice must be given under s.8 or s.21 of the Act, by the landlord, if he seeks a possession order from the court to terminate - under section 5(1A) - the statutory periodic tenancy. I quote section 5(1), which expressly specifies the need to give such a notice -

 

5. Security of tenure

 

(1) An assured tenancy cannot be brought to an end by the landlord except by—

(a) obtaining—

(i) an order of the court for possession of the dwelling-house under section 7 or 21

 

[MrShed]

Ed, I will quote from PainSmith:

Where a tenant has given notice to quit, either under a break clause or in relation to a periodic tenancy, that notice is binding on the tenant even if it is defective and it can only be withdrawn or rescinded with the consent of the landlord.

http://blog.painsmith.co.uk/2009/11/22/tenants-notices-to-quit-holding-over-and-double-rent/I mean it (honestly!) when I say this isnt meant to be condescending(!) but I trust the opinion of Painsmith over yours Ed

[Aequitas]

Where a tenant has given notice to quit, either under a break clause or in relation to a periodic tenancy, that notice is binding on the tenant even if it is defective and it can only be withdrawn or rescinded with the consent of the landlord

 

Quite a bit has gone wrong there!

 

First, it is saying that a defective notice is not defective, which clearly cannot be the case. If the notice is good the tenancy ends on the day that the notice expires. If the notice is bad the tenancy does not end. However, as she often does, equity may intervene. If the notice is bad and the landlord indicates he accepts it, the tenant can rely on the acceptance if he acts on it to his detriment - for example by agreeing a tenancy of other premises. If the landlord indicates he accepts he can rely on it if he acts on it to his detriment before the tenant gets back and maintains the notice is bad and therefore of no effect.

 

Secondly, a good notice cannot be withdrawn because, as I say, once served it ends the tenancy on the date the notice expires. However, if the tenant says he has changed his mind and the landlord says "Fine" that does not cancel the notice, but operates to agree a new tenancy from the date the notice expires. In certain cases the agreement needs to be made by deed, but that is unlikely to affect the average AST.

[Aequitas]

...and there are no words qualifying the point: nothing is said in the Act to the effect of a statutory tenancy not arising if the contractual tenancy is ended by the tenant.

 

Au contraire!

 

I quote section 5(2) and highlight the key words:

 

If an assured tenancy which is a fixed term tenancy comes to an end otherwise than by virtue of—

 

(a) an order of the court [F2of the kind mentioned in subsection (1)(a) or (b) or any other order of the court], or

 

(b) a surrender or other action on the part of the tenant,

 

then, subject to section 7 and Chapter II below, the tenant shall be entitled to remain in possession of the dwelling-house let under that tenancy and, subject to subsection (4) below, his right to possession shall depend upon a periodic tenancy arising by virtue of this section.

[MrShed]

Quite a bit has gone wrong there!

 

First, it is saying that a defective notice is not defective, which clearly cannot be the case. If the notice is good the tenancy ends on the day that the notice expires. If the notice is bad the tenancy does not end. However, as she often does, equity may intervene. If the notice is bad and the landlord indicates he accepts it, the tenant can rely on the acceptance if he acts on it to his detriment - for example by agreeing a tenancy of other premises. If the landlord indicates he accepts he can rely on it if he acts on it to his detriment before the tenant gets back and maintains the notice is bad and therefore of no effect.

 

Secondly, a good notice cannot be withdrawn because, as I say, once served it ends the tenancy on the date the notice expires. However, if the tenant says he has changed his mind and the landlord says "Fine" that does not cancel the notice, but operates to agree a new tenancy from the date the notice expires. In certain cases the agreement needs to be made by deed, but that is unlikely to affect the average AST.

 

I take your points Aequitas - I can only assume it was typed up a little bit "layman-esque". although, I certainly wasnt aware that a notice cannot be withdrawn if it is agreed to be withdrawn. Any case law on that one? Not saying you are wrong, just curious.

[Aequitas]

The first thing I found Googling was this. Note what it says after "notwithstanding". A little more Goggling failed to throw up a relevant case.

[Ed999]

In this unusual situation, in which the regular posters are unable to agree on how best to resolve the problems thrown up by the facts as presented to us, I suggest the o/p consult a Solicitor for advice.

 

The Housing Act 1988 has nothing clear to say about this situation.

 

We are trying to interpret the Act, without the benefit of any caselaw decision to guide us. This is never a good idea.

[Aequitas]

We are trying to interpret the Act, without the benefit of any caselaw decision to guide us. This is never a good idea.

 

I once had counsel describe the drafting of the HA 1988 as "opaque", which is a polite way of putting it. Many of its provisions are far from clear. However, I do not think that section 5(2) is anything but clear.