Section 21 Notice - What Are my Rights

[Michelle Ann]

I have a 6 months Assured Shorthold Tenancy with a break clause - it is a subsequent agreement following several renewals.

 

On the 20th I was issued with a Section 21 Notice requesting I leave on the 20th April. My agreement actually ends on 20th May anyway. So today I've been speaking with Shelter and then subsequently my local council as I can't afford to go back into private renting.

 

Shelter have advised me that although the Section 21 is valid and there is a break clause I am actually protected by the Protection from Eviction Act 1977 as the fixed term is only 6 months and that break clauses can only really be used in fixed terms regardless of amount of times renewed in contracts that are longer than 6 months.

 

They have told me that if the landlord or his agents attempt to move me from the property before 20th May then it is an illegal eviction for the reasons cited above and that I can sue the landlord if he even tries it - but I can't find any solid information on this, I've even checked though the various acts and still can't find anything.

 

The Council are disputing this but admit they are not certain of the top of their heads.

 

So what do I do? I've got two kids that need a roof over their heads. I'm not keen on staying in the place anyway, it's not been a happy home but I may need longer than 20th April. Any thoughts, points in the right direction and help would be fantastic!

 

Thanks in Advance.

[rebel11]

Hi Mich

 

Welcome to CAG

 

The guys will be happy to advise as soon as they are available.

 

Here's some info:- http://england.shelter.org.uk/__data/assets/pdf_file/0012/386796/Is_your_section_21_notice_valid.pdf

 

http://www.communities.gov.uk/documents/housing/pdf/138289.pdf

[Michelle Ann]

Thanks for the welcome

 

I feel I should clarify - my AST is 6 months long, dated 21 Nov 11 to 20 May 12. I have lived in this property since 2008 each contract being a AST of six months long. Does the whole process start again with the 6 months being protected from a break clause, ie-

 

If you sign a 12 month AST then the first six months are protected, if after the whole twelve months is up you sign a new AST of 12 months, are the first 6 months protected?

 

ETA: Sorry, it is a supplement of the original AST so does that count?

Edited February 22, 2012 by Michelle Ann

[mariner51]

Your latest AST is for 6 months fixed term? It cannot include a break clause of less than 6 mo. Perhaps you are confused with T notice date requirements? If LL wnats to seek repo, then he will have to serve due Notice now and obtain Court repo order after end of fixed term. (+2 mo) If you want to terminate T, you can do so at end of fixed term without Notice. IMO 2 months is suff time for Ts to find alt accom.

[The Carpet Cleaners]

The way I see this then is that althought the section 21 is legal, it does not take effect til 20th May which is the end of the fixed term..

 

You do not have to move out by then, as if you are still there the LL will have to get a court order to evict you, however as Mariner51 has said, if you have found somewhere, you can be out by the last day of the fixed tenancy, which will end the tenancy.

 

You should go to the council asap and show them the AST and the section 21, they will then advise you as to how they can help.

[Steve__M]

The Council are disputing this but admit they are not certain of the top of their heads.

 

Wasn't obvious from your original post, but I assume the landlord is your council?

[R J Dearden]

IMHO it depends on how the original contract and break clause were written and how the subsequent extensions to the original agreement were written. If the landlord issued a full new tenancy agreement for each of the six months it could be argued that the landlord's notice to quit will not effect until the end of the 6th month of the current contract. If however the contracts to extent the extent the original tenancy are purely addendas to the original contract (agreement to carry on the original contract with new dates) it could be argued that the landlord has every right to serve notice and seek possession.

 

In any event if you stay until the 20th May the landlord is unlikely to get anything done (under law) to evict you by this time due to the lengthy processes.

[Ed999]

My comments only apply if the premises are entirely within England, and you were granted a shorthold tenancy (under which you have exclusive use of a separate dwelling, and the landlord does not live in the same building), and you were over 18 years of age when the tenancy was granted.

 

Only a Court can decide what the legal effect of your tenancy agreement is.

 

 

Fixed Term: Ending the Tenancy

 

If the tenancy is for a fixed term, the tenant has a legal right to remain until the fixed term ends.

 

The tenancy can't be ended early unless:

 

a. the tenancy agreement itself contains a "break" clause: an express provision that allows the letting to be ended early (typically, by giving one month's notice); or

 

b. there is an agreed surrender of the tenancy, by a formal written deed of surrender, signed and witnessed; or

 

c. the landlord makes a successful application to the court under section 8 of the 1988 Act (for rent arrears or some other breach of the tenancy agreement).

 

 

Nevertheless, if a break clause allows the landlord to give notice terminating the tenancy AFTER the first six months of occupation, a section 21 notice might be sufficient to activate the break clause:

 

• Aylward v Fawaz (1997) 29 HLR 408, CA

 

 

Break Clause

 

The tenancy can be ended early if the tenancy agreement contains a "break clause" (an explicit right to end the tenancy early by giving notice), and if a valid notice to end the tenancy early is given under that clause.

 

The Housing Act 1988 does not specify any notice period in respect of a notice given under a break clause. Therefore it is a common law notice, so the notice period is purely contractual in nature.

 

Thus the period specified in the tenancy agreement applies without modification. There is no statutory obligation for the notice to expire on any particular date.

 

A notice given by the landlord under a break clause is NOT given under section 21, but under the break clause. So it must only comply with the conditions specified in the break clause (the contractual conditions), as to the length of notice to be given, not with the conditions specified in section 21 (the statutory conditions).

 

Nevertheless, if the break clause allows the landlord to give notice terminating the tenancy AFTER the first six months of the term, a section 21 notice might be sufficient to activate the break clause:

 

• Aylward v Fawaz (1997) 29 HLR 408, CA

 

In the present case, this might not apply, because the break clause does not provide for the term to be ended after the first six months. It seemingly provides for termination DURING the first six months, as the landlord seeks to terminate after 5 months. So the Court of Appeal authority in Aylward v Fawaz might not be applicable here.

 

 

Section 21 notice

 

If the tenant remains in occupation after the end of the six month fixed term, a statutory periodic tenancy arises [section 5(2), Housing Act 1988]. The landlord must end the statutory tenancy before he can apply to the court for possession.

 

 

1. Notice given by Landlord under section 21(1)(b) -

 

The statutory tenancy can be ended by the landlord giving at least 2 months notice DURING the fixed term, even at the beginning of the tenancy (i.e. before the periodic tenancy exists) [section 21(1)(b)]; but the notice can't take effect before the fixed term ends [section 21(2)].

 

The notice can take effect on the last day of the fixed term or any later date: where a notice is served DURING the fixed term, there is NO need for the notice to expire on "the last day of a period of the tenancy", as section 21(1)(b) doesn't require that.

 

Logically, it's still a fixed term at this stage; there is no 'period', as it's not a periodic tenancy.

 

This is the type of notice you have received. One given to you DURING the fixed term. As a section 21 notice it is clearly INVALID for it seeks to take effect before the end of the fixed term. So any legal effect it may have can be as a contractual break notice only.

 

 

2. Notice given by Landlord under section 21(4) -

 

If the notice is served AFTER the expiry of the fixed term (i.e. during a periodic tenancy) it must expire on the last day of a period of the tenancy, as section 21(4) requires that.

 

The notice was clearly NOT given to you after the expiry of the fixed term. So s.21(4) is irrelevent in this case.

 

 

The Section 21(1)(b) notice given to you appears to be invalid as a statutory notice for a second reason also, in that it does NOT give 'at least 2 months notice'.

 

The notice given to you says that you are to move out on 20th April. But you only received it on 20th February. In my opinion, the last day on which you could have been given it was 19th February, which appears to be the latest date on which you can be given 'at least' 2 months notice of a termination on 20th April, i.e. two clear months' notice.

 

Thus, if the notice is to have any effect, it must be a contractual effect, under the 'break' clause, for the notice doesn't meet the requirements of a statutory notice.

 

 

Continuation tenancies

 

Section 21(5) provides that a court order can't take effect during the first 6 months of the original tenancy. It further provides that this is a one-off restriction, which does not apply to any further (i.e. continuation) tenancy of those premises.

 

You have been in continuous occupation through several 6 month fixed terms. I am not clear whether this is relevent, as the contract nevertheless specifies a new 6 month fixed term, and it is difficult to see anything in the wording of section 21 to save the landlord's notice, since section 21(2) expressly provides that such a notice must take effect AFTER the initial six months; and as the fixed term only began on 20th November last, it is hard to see how section 21(2) can mean some date calculated from before the tenancy began.

 

However, only a Court can decide what the legal effect of your tenancy agreement is.

 

 

Protection from Eviction Act

 

To be a lawful eviction, you must be given 4 weeks written notice pursuant to the Protection From Eviction Act 1977.

 

Since the landlord is required by your tenancy contract, and by the Housing Act 1988, to give you 2 months prior notice, it is difficult to see how the landlord can possibly be violating the 1977 Act, with its much shorter notice period.

Edited February 28, 2012 by Ed999

[Ed999]

Wasn't obvious from your original post, but I assume the landlord is your council?

 

As I read the initial post, she has a private landlord.

 

She talks about seeking help and advice from the Council, with a view to talking them into housing her, I imagine; but she is specific that she currently has a shorthold tenancy, and that she does not wish to rent privately in future.

 

The phrase "I can't afford to go back into private renting" I take to really mean "I can't afford to continue with private renting".