Section 21 question

[djshorts]

Hi there,

 

I have an AST question and any help would be much appreciated.

 

The AST states that 'The tenancy will then continue, still subject to the terms and conditions set out in this Agreement, from month to month from the end of this fixed period unless or until the Tenant gives notice that he wishes to end the Agreement as set out in clause 4 overleaf, or the Landlord serves on the Tenant a notice under Section 21 of the Housing Act 1988, or a new form of Agreement is entered into, or this Agreement is ended by consent or a Court Order.'

 

The two parts in bold are what I am interested in. Does this mean that if a Landlord serves on the Tenant a Section 21 then the agreement will no longer continue subject to any terms and conditions held within it? Basically serving a Section 21 terminates the agreement and neither party are bound by it?

 

Many thanks

[The Carpet Cleaners]

No.... All a section 21 means is that the landlord wants to seek possession of the property. A section 21 has to be valid, and at the end of the 2 months "notice" of a section 21 the landlord then has the right to go to court for a possession order if the tenant is still in the property.

 

It does not change any terms in the AST at all.

[djshorts]

Hi there, thank you for your reply.

 

My AST states what I have written above. Can I ask what that means to you?

 

I read it as if a Section 21 is served on the tenant, then the AST will no longer continue subject to the T&C's contained in it?

[Steve__M]

Might be worth knowing what you are after.

 

I think you ought to read it as:

 

(The tenancy will continue month to month) till notice is issued (and then the tenancy will continue - but not necessarily from month to month).

 

Not:

 

(The tenancy will continue) till notice is issued (and then tenant can move out whenever he/she likes because the notice has terminated all agreement).

 

Most of the agreement continues till the tenancy has ended (i.e. the tenant has moved out). i.e. the rights and responsibilities of tenant and landlord are not affected by issuing of the notice.

 

I think these words you've bolded are used to create a contractual periodic tenancy. Without them, after the fixed term the tenancy would become a Statutory Periodic Tenancy, which is pretty much the same thing except that the notice that must be given is governed by statute (the law) rather than by contract.

 

Tenant notice by statute is (for monthly tenancies) one full rental month. Often Contractual tenancies will require two full months.

 

I'm by no means an expert.

[The Carpet Cleaners]

I agree with Steve

[djshorts]

Thank you again

 

So serving a Section 21 does not terminate the existing AST agreement and the LL or T are legally still bound by its contents?

 

I have a court hearing on Monday regarding rent arrears and my T is arguing that as I served a Section 21, rent was not due after it was served.

 

I have also been made aware that there were missing documents from the PI that I served on my tenant. I also dated the document incorrectly, as though it were served at the start of the tenancy. PI was unfortunately served in April 2012 but tenancy started in March 2010.

[The Carpet Cleaners]

The tenant is liable for rent up until the day they move out, which should coincide with the tenancy dates ie if they moved in 20th march and they pay rent monthly, the last day has to be 19th of the month, provided of course they are in periodic tenancy and not still AST.

 

The tenancy is legally enforceable until mutual surrender occurs, or the tenant moves out on the last day of the AST

[djshorts]

I served a Section 21 in April 2011 (T was 2 months in arrears) but T moved out in March 2012. Was a lengthy process, I received £550 pcm from the council in HB but rent was £650 so £100 missing every month. I did a MCO for rent arrears after Section 21 notice expired and T did not file a defence so I was awarded a judgement.

 

After T moved out I made a Stat Dec to DPS to start the single claims process for rent arrears and damages to my property but was informed that as a judgement was in place I would have to have the order amended for the DPS to pay it to me.

 

T is arguing that I did not comply with DPS t&cs or the housing act because of my PI being served incorrectly and not in time and I believe they will be making a claim against me.

[djshorts]

If anyone can help, this is what I sent to the T - DPS prescribed-information-template.pdf 2 copies - 1 for T and one for me. T emailed confirmation of receipt.

 

I dated it from March 2010 but it was sent April 2012. Apart from the dating error was this correctly served Prescribed Information?

[Steve__M]

If there was an attachment, I didn't see it. I'm familiar with the DPS prescribed info form, however. Hopefully the date shouldn't matter especially if the deposit was protected in a timely fashion.

 

If the tenant is claiming the 3x penalty, you could also seek to rely on the situation that prior to the Localism Act, as long as deposit was protected and prescribed information served prior to the court case, there was no comeback on landlords. Protecting/serving PI prior to (about) the 5th May 2012 should be sufficient IIRC.

[djshorts]

The Prescribed Information wasn't served until after the Court hearings, and as far as I am aware, there are still documents that I have left out to this day.

 

I am concerned about my former T coming back with this claim for compensation, and what my defence will be if that situation arises.

 

Thank you

[Steve__M]

From what you say, the tenant did not have a claim for the failure to serve the prescribed info at the court hearings you refer to, as you say the tenant did not defend (or presumably issue a counter claim).

 

So unless they can claim now on the basis of the potentially missing document, they are too late.

 

As far as I'm aware, the only document you have to send is the 3-4 page template which lists addresses of tenants and landlord, amount of deposit, date of protection, length of tenancy and so forth. What do you think you've missed?

[djshorts]

It states on the bottom of the 4 page document '

NOTES

(1)

A copy of The Deposit Protection Service CustodialTerms and Conditions must be attached

to this document.

 

I missed that out