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Tenant gave notice to leave,LL served notice 21(1)(b), now tenant wants to stay


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Just to clarify - I'm the tenant here!

 

Here's the situation - we have a fixed term contract with a private landlord and we served a notice to leave, which was accepted by the landlord and their letting agents, who in turn served us with notice 21(1)(b) expiring on 30 December. We are due to move out on 10 November (the expiration date of our own notice) into a new flat .

 

However, we were just told by the new landlord that there's been a leak in the new flat, which might prevent us from moving in on 10 November - he's not sure when we could move in since some of the electrics might have been affected (the leak came from the flat above and the water went into the wall behind the storage heater/electrics cupboard/one of the bedrooms as well as on some of the carpets).

 

As far as I could find out from some online research, we now have a couple of options:

 

1) Move out on the 10th as agreed and into a hotel/temporary housing while storing most of our belongings - I assume the new landlord's insurance should pay some/all of this extra expense? We then would move into the new flat whenever it's deemed habitable (that is, the electrics have been checked and the walls/carpets dried out).

 

2) Not move out of the current flat until the new flat is ready. I understand that our own notice has merely terminated the fixed term of the existing contract but then if we don't move out then a statutory tenancy automatically begins, which would terminate on 30 December as per the notice 21(1)(b), which we have already been served. Is that right? If so, then:

- do we have to give further notice to move out after 10 November (when the fixed term expires)? This would be difficult since we don't know when the new flat would be ready for us to move into.

- would we be liable for rent until 30 December? We would definitely want to avoid this.

- is it right that the landlord would not be able to evict us/make us leave until at least 30 December?

If the above is not correct, then do we have any statutory rights to remain for any period beyond 10 November?

 

Again, there is the question of who would be liable for the extra expense but at least we wouldn't have to move twice!

 

3) Not move out of our current flat and try to find a new flat. The new landlord offered us to get out of the contract but we are not keen since it was really difficult to find this one (also see below).

 

A further difficulty is caused by my wife currently being over 8 months pregnant with our second child and our first is only 1.5 years old. We have no help/relatives around, so the original move date itself was already a big compromise (we really needed the extra space and the new flat is great). Therefore options 1 and 3 would be quite difficult and option 2 might also be messy - we really don't want to have to move +/- 2 weeks around the due date.

 

However, option 2 seems to be the only realistic one at this point (assuming we can flex the move in date with the new landlord). We already checked with our current landlord and received an immediate "no" to our request to stay a couple of weeks longer as he has plans to sell the flat, has booked flights to move in the day after we leave (he lives abroad), etc. Although we understand this, I don't see what else we could do?

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When did present T commence?

For what fixed period?

Frequency of rent due?

 

 

T cannot serve NTQ during fixed term, so it cannot terminate fixed term. It serves only as offer to surrender, for which LL can dictate terms.

If NTQ served during SPT, then it cannot be withdrawn. T ends on expiry of NTQ and LL can claim 2x daily rent as mesne profit for period of overstay.

Option1 is your best bet, since new LL cannot provide property on agreed date and should provide temp alt accom. You don't know how long new flat will take to dry out, could be weeks, so he could withdraw offer and return all monies, since no new T has been created.

You can stay beyond end of fixed term (10 Nov) but you still are reqd to serve min 1 month Notice which would expire 9 Feb (s21 is not a NTQ) but allows LL to seek possession, if valid, after expiry 30 Dec and LL can apply for cost of hearing (£280) against you.

Current LL may agree to let you stay , without charge except rent due, until 30 Dec.

 

 

You can vacate without Notice on last day of fixed term (9? Nov) but some notice of intent for LL would be courteous.

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Thank you for your reply (you've obviously noticed that I posted this elsewhere as well). As in my explanation in the other thread, we actually have an AST with no fixed term (we had a fixed term previously in the same flat) starting from 1 June and we could give a month's notice at any time (we gave notice on 11 October and ended the tenancy on 10 November). Rent was monthly.

 

If we are not able to move this weekend (most likely), then we don't want to vacate on 10 November (and don't want to get charged mesne rent) - is that likely in these circumstances?

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This is not clear, if you signed an AST, the minimum term is six months ( that it is why it is called assured, you have a secure contract for six months ), if no period is stated then that is what deemed the minimum period.

If you had another type of contract with no fixed term that would be a periodic tenancy! month by month and as such once you have given LL notice that it is it you cannot take it back, the S21 is therefore irrelevant at this stage and if you stay beyond that LL is entitled to the extra rent as said.

Your notice must also end on the day before a rent period day, with a minimum of one months notice. so from what you say would actually end on 30th November 2014! however if LL has agreed to you moving out on 10th November, so be it.

just to be clear, is there a deposit and has it been protected?

 

 

As for new flat, if you have signed a contract and paid the deposit and/or rent then a contract exists and the LL must honour that or compensate you if he cannot meet the dates, by providing alternative accommodation or financially.

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As for unavail new flat, you must mitigate your permitted expenses by seeking alt perm accom asap (2 weeks?), unless a longer term is agreed with new LL. A wet property could take 3+ months to dry out and be ready for habitation again. I doubt LL would agree to pay your costs for that length of time.

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Well, the heading of the contract says AST but we had agreed to remove the definition of a fixed period from it. We specifically agreed on giving notice on any day (not just rent day) and to pay a pro-rated amount if the rent payment day and the leaving day don't match. Yes, there is a deposit and it's protected.

 

I got some direction that the new landlord is not obligated to provide alternative accommodation because we haven't moved in yet. He's really keen to help anyway...

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As for unavail new flat, you must mitigate your permitted expenses by seeking alt perm accom asap (2 weeks?), unless a longer term is agreed with new LL. A wet property could take 3+ months to dry out and be ready for habitation again. I doubt LL would agree to pay your costs for that length of time.

 

Yeah, the advanced state of the pregnancy makes it extremely difficult to either try to find a new place or move after this weekend. Doctor said yesterday that we're crazy to be moving this weekend anyhow.

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You seem to be a bit stuck, but the situation was not exactly a surprise regarding the pregnancy! ( hope all goes well with that, avoid stress if you can).

You just have to do what's best, and see how it goes.

Good of the LL to modify contract, which I presume was all done in writing and signed where modified?

However now it would appear you will have to stay beyond your date of the 10th and negotiate something with LL.

and negotiate with new LL regarding new flat. ( have you paid deposit and first rent for that? ).

Good luck and hope they will understand the predicament you are in.

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You seem to be a bit stuck, but the situation was not exactly a surprise regarding the pregnancy! ( hope all goes well with that, avoid stress if you can).

You just have to do what's best, and see how it goes.

Good of the LL to modify contract, which I presume was all done in writing and signed where modified?

However now it would appear you will have to stay beyond your date of the 10th and negotiate something with LL.

and negotiate with new LL regarding new flat. ( have you paid deposit and first rent for that? ).

Good luck and hope they will understand the predicament you are in.

 

Thanks raydetinu. Yep, the pregnancy was not an unexpected "obstacle" and we are trying to do the best we can.

 

Actually, the contract was modified only in respect of the previous contracts - it is actually a clean AST contract starting on 1 June that specifies that we can give 1 month's notice anytime (the landlord can give 2). Still getting conflicting opinions as to whether this means I have any fixed term in the contract!

 

Yes, we paid the deposit & 1st month's rent on the new flat. Since we haven't moved in, however, I understand it's more complicated since the landlord could just dissolve the contract/give us back the money, which is not what we want (and I don't think he does either as he's told us he thinks he can get things sorted in a week). We now have been offered the option to move in this weekend as previously agreed if we accept that he has no liability for us moving in a week early, as well as on the conditions that the electrician OKs the flat on friday (tomorrow) and the dehumidifiers can be removed by saturday. I was hoping (probably naively) that I could get a bit of clarity online before getting legal advice but unfortunately this is not turning out to be the case. Between a rock and a hard place right now!

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I think the fixed term aspect of your AST has been superseded by the LL acceptance of your notice and not saying you will have to pay rent to the end, and in fact is planning to move straight back in, so not out of pocket or claim for expense. But there will be if you stay!

So as for minimising costs, suggest you move out to temp accommodation if necessary until new place ready ( hopefully new LL or insurer will pick up tab for that ).

Pregnancy not withstanding of course, the prospect of upsetting someone is going to be high!! Its a risk and I sympathise.

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I think the fixed term aspect of your AST has been superseded by the LL acceptance of your notice and not saying you will have to pay rent to the end, and in fact is planning to move straight back in, so not out of pocket or claim for expense. But there will be if you stay!

So as for minimising costs, suggest you move out to temp accommodation if necessary until new place ready ( hopefully new LL or insurer will pick up tab for that ).

Pregnancy not withstanding of course, the prospect of upsetting someone is going to be high!! Its a risk and I sympathise.

 

Thanks raydetinu, this sounds quite reasonable. If this is only a matter of a week to fix up the new flat then moving into a hotel/b&b would probably be a top option at this point. We'll have to wait till the electrician's verdict tomorrow to make a decision though - if he says it'll take longer, then we'll have to rethink...

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[QUOTE=mariner51;4643283]I would be worried about new LL saying he has no liability if you move in early.

 

Agreed. Specifically, the proposed liability release is worded as: "...we accept no liability (other than to meet the reasonable costs of the clean) and require release from any claim under the tenancy agreement or otherwise which may arise in connection with you taking possession on this accelerated basis."

 

If he receives confirmation from the electrician that the electrics are fine and is comfortable with the dehumidifier having done its job, then what else would he need release from? (the "clean" refers to the beginning of tenancy professional clean which we would have to undertake next week and which he's agreed to pay for). He also needs to move out some of his belongings out of the flat, which was originally agreed but he's now moved this to next week, so we'd have to allow the movers access to do so. He's also requested access (with advance notice) for any further repairs that might need to be undertaken as a result of the flood (which we're ok with). Other than that, I'm not sure what else is there to do for him next week. If I were a judge I'd be wondering whether he's got something to hide! :???:

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If you get OK on the electrics ( in writing and he is qualified etc.) then I think the risk would be minimal, but in your situation its one you may have to take.

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