Urgent help needed with Section 21 dates

[verandi]

We are currently facing possible eviction, and have been given a deadline of tomorrow to either sign up to a new fixed term or be served a Section 21, delivered to our address by hand tomorrow. Currently on a Statutory Periodic Tenancy, which we wanted to stay on and landlord previously agreed to, but has since changed his mind three times and is now not allowing us to stay on it. There are various reasons that we don't wish to sign a new fixed term, which I won't go in to detail on now as it's a long story, but in a nutshell the landlord let himself in whilst I was home alone and in the shower recently due to agent not communicating to us that he had arranged with them to attend. Then rather than take his anger out on them he threatened my husband - so we are now looking for a house to buy and don't want to be tied down to this property for a fixed term.

 

I have been trying to work out what dates they would need to put on the S21 in order to make it valid. I'm aware that landlords need only give two calendar months notice now, BUT the letting agent seems to have imposed this deadline of tomorrow and keeps referring to "tight timescales" which makes me think they are not aware of this, and are planning to use S21(4)(b) and still think they have to give two rental periods of notice.

 

Relevant dates:

Rental period starts on 6th of each month, so last day of tenancy would be 5th

Section 21 likely to be served by hand tomorrow, 4th

Contract has a clause stating that notice served by hand before 5pm will be considered served on next working day excl. Sat, Sun and Bank Hols, which would be Monday, 6th

 

If notice given tomorrow is considered served on the 6th October, would the notice be allowed to expire on 5th December, or would it need to run from 6th to 6th and so if it states 5th December will it be invalid?

 

My feeling is that it would be valid still, as it would be considered served from 00:00:01 on 6th Oct and would run until 23:59:59 on 5th December, which would be two full rental periods. But looking online the results are mixed. I found a blog comment where someone said their possession order was thrown out for not running from, for example, 6th to 6th, and when using online S21 calendars with a service date of tomorrow, they are saying notice should expire Jan 5th, not Dec.

 

Also, if the notice is dated from 4th or 5th Oct but isn't classed as served until 6th Oct, as per the contract clause, then is it valid or invalid?

 

I'm so confused, getting into a right muddle. I'd be grateful if anyone could clarify the above for me, as this will determine whether or not we sign the new fixed term tomorrow. I am 7 months pregnant, due 15 days after the S21 would expire. If it was just me and my husband I would fight this to the end, but with the baby due at Christmas I am so scared of the uncertainty about what will happen. If I knew we had at least 3 months I would feel fine, but 2 is cutting it fine to complete a house purchase even with the added time of the court process etc. The anxiety is affecting me a lot now, to the point where I'm having panic attacks in the middle of the night and have hardly slept for a week. Please help

[honeybee13]

Hello and welcome to CAG.

 

The forum guys should be along later, they will know how to handle this. In the meantime, have you spoken to Shelter? They have a very good helpline.

 

http://www.shelter.org.uk/

 

HB

Edited October 3, 2014 by honeybee13
Link

[verandi]

Hi honeybee Yes I phoned Shelter, was on the phone to them for half an hour and they were lovely, but they wouldn't give me a firm answer on the dates due to the recent changes meaning that landlord's only need to give two calendar months' notice now. He just kept saying that. I know that's the case, but if the letting agent isn't aware of it then it's possible that I can later make them believe, in a month or two's time, that their S21 is invalid if it doesn't adhere to the rental periods properly. Does that make sense? Which would potentially buy us more time to complete a house purchase. The man from Shelter was more interested in talking about my entitlement to change the locks and what could happen if the landlord made any more threats or came round unannounced again, which was useful, but I mainly want clarification on the S21 issue right now.

[verandi]

Oh and I tried to make use of a local advice service that CAB recommended to me, but they won't actually see me until the S21 has been served...

[The Carpet Cleaners]

Ignoring the dates for the moment.... You do not have to leave at the end of the section 21...

It is only a notice of intention....

If you are still in place at the end of the section 21, the LL then has to apply to the courts for your eviction, this process can take 3 weeks to 3 months to take it's course, and even then, the judge will give you a date to be out by, and if you are not.. the LL once again has to go to court and get the bailiffs to come and evict you, this process (including the warning of intended eviction date from the bailiff) will take up to 2 months.

 

So you have plenty of time to sort out your purchase.

 

things also get delayed over the holiday season due to the courts being closed etc.

You should be worrying too much at this stage...

 

Oh yes.... change the locks and keep the original ones to put back on once you leave, this will stop the LL letting himself in again. It is perfectly legal to do so, providing you don't damage the doors or locks in the process.

[mariner51]

As for s21 dates, it may depend on which s21 LL uses. Most would say it should be s21a for SPT, but if there was an original fixed term imm prior to SPT, a Court of Appeal decision allows the use of a simple 21b which expires exactly 2 tenancy periods ( 2 cal months if rent payable pcm) so if deemed served (received) on the 6th,Oct it would expire on 5th Dec.

That close to Xmas, LL is unlikely to get a hearing until after New Year. As for Bailiffs, LL could apply to High Court for enforcement officers, who generally repo within a few days of High Court Order, and no Notice given.

[raydetinu]

A writ of possession must first be obtained from the county court; usually 14 days from end of S21 if LL acts quickly. ( accelerated procedure ). Normal court bailiffs can take up to 4 weeks to act.

It can be transferred to the high court if possession is not obtained and HC bailiffs can be engaged, following the granting of an enforcement order, at some cost though! ( £350 plus ), but can act quickly.

 

 

Just to clear up a point, I presume you paid a deposit and it has been protected and you have all the information?

If not protected then any S21 will not be valid at all!

[verandi]

Thanks all. The deposit was protected when we first moved in 2 and a bit years ago, and the Prescribed Info given to us. We were given a new PI when we signed a renewal after a year. We weren't given a new PI when the tenancy became an SPT, and I know there's been some discussion online lately about whether that would render a S21 invalid, now that there was that case where the judge said that an SPT is a "new tenancy". But I wasn't planning on relying on that argument seeing as it's untested and probably not going to get me anywhere.

 

As luck would have it, we viewed 3 houses to buy this afternoon and loved one of them, and our offer has just been accepted. The owners know our circumstances and that we want to be in before the baby is born at Christmas, and are happy to move into rented if they don't find anywhere to buy soon. They're house hunting this weekend in the town they're relocating to.

 

So, that's made our decision. We won't be signing any new fixed term. And we should, all being well, be into the new house before any court date was arranged. We're prepared now to take the risk that we will have to look for an alternative rental if the purchase doesn't complete.

 

Out of interest, I know that if it went to court and the LL got a possession order, we would have to pay his costs. What would happen if we moved out between the LL applying to the court and paying his fee, and the court date? Would his fee be refunded? Would we be liable to pay him anything still?

 

I feel like a weight has been lifted! Although still dreading this notice arriving tomorrow...

[mariner51]

Even if LL serves s21, you are still required to give min 1 cal month NTQ, to expire at the end of a Tenancy period (s21 does not terminate the T).

Ensure your conveyancing solicitor & sellers are aware you want vacant possession imm on completion, pref by expiry of your s21, though the nec searches should not be rushed.

[verandi]

Thanks mariner, yes we'll be sure to give them the required notice, but we won't do so until after exchange on our purchase, for (relative) safety. Not giving them any excuse to get one over on us!

 

Out of interest, if they want to do viewings with replacement tenants once the S21 has been served today, and our tenancy agreement says that we have to allow viewings by prior mutual acceptable appointment and upon being given 24 hours written notice, do we have to consent to these viewings? If we state that we wish to be present during any viewings but just happen to always be at work or similar when they want to come round, can they do anything about this? Personally I think they'd be mad to relet the property yet, seeing as we won't be confirming any end date any time soon, but it really wouldn't surprise me if they just assume we'll leave during the S21 and arrange new tenants for the day after!

 

Actually, that reminds me of something else I wanted to ask. If they do arrange for new tenants to move in once the S21 expires, but we then stay until a court possession order expires, would the landlord be able to claim any incurred costs/losses from us? My feeling is no, but this is based on my assumption that it's our right to remain here until the expiry of the possession order. Am I correct?

 

The tenancy agreement also states they can erect To Let boards within the last two months' of the Tenancy, but how do they know when the last two months will be unless they assume we will be out by end of S21. Not that we'd be awkward about minor things like that, life's too short. I just think it'll be interesting to see what they do.

[The Carpet Cleaners]

If you say you want to be there for viewings, and change the locks, they can't show people round when you are out. If you don't change the locks, you can bet your bottom dollar that they will show people round.

[raydetinu]

Please inform LL and agent of the current situation and keep it as amicable as possible as you have been fortunate to locate another property but dates are flexible at this point.

It does not seem worth it from your present LL point of view to embark on legal action, other serving the S21.

As you have decide to move, it would seem reasonable to allow them put a To Let sign on the property immediately if they so wish ( co-operation at least ).

Yes change the locks to keep control of viewings, but I doubt they would arrange viewings until they have a vacant possession date when people could move in.

Anyway suggest you are reasonable in allowing access for viewings.

Hope it all works out and good luck.

[verandi]

As expected, the S21 has just come through the door.

 

They've served a Section 21(4)(a), as I expected. Dated 4th October 2014 with a date of expiry 5th December 2014. It will be considered served on Monday, 6th October, as per the tenancy clause. So I fear it is valid.

[raydetinu]

Just keep talking. you can sort it out.

would have been valid anyway even if served on the 7th as long as expiry was 7th ( all they need now is two clear months once gone periodic, S21 (1 ) would have applied.) forms are not mutually exclusive or so I understand.

[verandi]

It would have, yes, but they don't know that. They think it has to expire on the 5th. I'm still confused about whether it has to run from 5th to 5th, or whether the 6th to 5th is okay. The more websites I look on the more confused I get as some say the former, others say the latter.

 

I've tried talking for over a month now, they don't engage in any discussion about it. They just repeat their ultimatums and threats of eviction. For some reason the landlord would rather evict two reliable tenants who keep his property in immaculate condition and incur the cost of re-letting than enter into any discussion with us now. It's madness, but so be it!

[raydetinu]

Up to you, but I would call their bluff and hope you can get new house asap.

but have a plan B in case bailiffs turn up.

IMHO you will be ok until well after xmas.

very good luck.

[Gemma.]

It has to be two clear periods, not two months! So if rent is paid monthly then two clear month terms of rent

So if rent due on the 6th it has to be served before the 6th, and to be certain of not being overturned before the 5th, as the period of tenancy (in this case) runs from the 6th to the 5th. I would say it was invalid service as Notice was not given in time. But be very careful.

A section 21 is Notice not a possession order, you can still stay until a court order is obtained but this cost will be charged to you.

[verandi]

Thanks Gemma, are you aware of anything in writing that I could use to support that if it came to it? It's so confusing...

 

Another question (sorry folks!). If the S21 is a Notice that the landlord requires possession after the expiry date, why would I still be required to give notice of my own if I decide to leave before the S21 expiry date (note, I would still pay rent up to the S21 expiry date)? If I just left on the 5th December, and paid no further rent, would I be doing wrong? I know the S21 doesn't have to mean the end of the tenancy, but surely it's a request for me to leave by the landlord, and so if I comply with it by leaving, is the tenancy not considered ended by mutual agreement?

[raydetinu]

Gemma you are incorrect, latest ruling is; once contract has gone periodic you only need to give two months notice and does need to be tied to a rental period and issue a S21 (1) or an S21 (4 ) with a two rental period and a two month as long as a minimum of two months notice is given.

As far as you giving notice, you do not to give any notice if you leave on or before the end of the contract end date; 5th December 2014. After that date you are required to give one months notice or you will be liable for rent to the end of the end of the S21 end date. ( so you could save a bit of money ).

You appear to understand that you do not have to actually leave at the end of the S21 date.

[mariner51]

#1 stated "Currently on a Statutory Periodic Tenancy.."

so T NTQ of 1 month appears to required, even though s21 a has been served, as the Contract term has ended, unless you are suggesting any T can vacate without Notice on the last day of monthly periodic T period?

[raydetinu]

I got that wrong didn't I! oops meant end of AST contract which would have been 5th October 2014; ( no notice required ).

If you wish to leave on 5th December 2104, again no notice required; normally I would say your one months notice would have to end on a rent period, but in light of the ruling for LL that their two months notice do not have to, then maybe yours does not??? and you pay rent pro-rata.

Again if you are going to stay after the S21 expiry you again have to give one months, or wait for the eviction warrant to be served and leave on that date.

Either way you will have to pay the rent until the date your notice expires or S21 or the courts date.

[mariner51]

Ray, have you been inhaling again?

 

 

OP has not informed us the actual date AST/SPT commenced, nor length of fixed term. He did confirm it was currently SPT.

s21a does not terminate T on expiry, only allows LL to seek legal repo after the 5th, (though Judge may declare the s21 / expiry date invalid).

Your statement "If you wish to leave on 5th December 2104, again no notice required;" appears to suggest a s21 expiry date creates new last day of T? Do you have case law or legal precedent for this?

My understanding was that T can vacate voluntarily, by expiry to avoid pot costs of Court hearing but must serve due or some prior Notice as s21 is not a NTQ.

[Gemma.]

Surely the AST will say if notice needs to be given if the T decides to leave at a date other than the expiry of the S21, it is usual to give at least one month if paying monthly.

[raydetinu]

IMHO No notice required if tenant going to leave at end or before S21 notice, up to LL to check tenant is going to comply. tenant would be liable for rent up until that date. ( don't see why tenant would have to confirm back with a notice of their own if going to comply ).

If communication and goodwill has broken down, then up to LL to chase and do what they have to after that.

[verandi]

Oh dear, I seem to have opened a can of worms about the need to give notice if I leave at the end of the S21. If you lot don't know the answer, I've got no chance lol

 

To complicate matters even more, I asked my local council's Tenancy Relations Officer today about the dates issue. She said that to be valid it would need to run from 5th to 5th, and that as it was served on 6th and expires on 5th, it's invalid. The plot thickens...