Dispute regarding S21 notice - URGENT

[LittleMissSunshine]

Hi

 

Hopefully someone can help me. My Landlord has given me a S21 notice at the end of April to end my tenancy by the end of June. I was on a AST which run from January to June (6 months) so they did that correctly.

However on the S21 they give me notice that my tenancy ends by end of June and that i have to leave by end of August. (I checked with Council if notice was served correctly and they said that the landlord give me 2 months to long to vacate the property, basically saying the paperwork was not correct!)

 

And here is where we go wrong. I have found a new property and will move in there this week. I therefore will vacate the old property by 4th August.

 

I have notified this to the landlord in writing, saying that i will be out and i will pay rent up to 4th August.

They however are stating that I leave early and still have to pay till the end of August

 

My understanding from S21 was that you could leave anytime during that notice as long as its after the formal end of your tenancy. You dont have to sit out till the end and dont have to pay till the end.

 

So can someone clarify who is right here and if there is any formal laws/legislation or something similar, can you please let me know where to look

 

Any advice is greatly appreciated

 

LMS

[Raevenne]

When we received one I checked with the CAB about giving notice as the landlord has issued us with Notice to Quit. I was told that as long as I was out 'by that date' I didn't even have to give the landlord notice of when I was going. Check with your local CAB.

[MrShed]

You are correct. It is unfair to give notice and then hold you to a specific date. Cant think of the legislation however, but it will be in the Housing Act.

[LittleMissSunshine]

cheers for the replies, I thought I was right, having seen so many issues here online. I will do some digging in housing act and inform landlord that I will be out and pay up to the date of leaving i.e. 4th.

 

A happier LMS

[tallorder]

The Section 21 comes in two flavours:

 

Both are when there are no rent arrears (as that would be a Section 8 notice)

 

S21(1)(b) - Given during tenancy.

 

S21(4)(a) - Given when AST (Assured Shorthold Tenancy) has become periodic.

 

Details below from:

 

The Letting Centre - Factsheet 21 - Section 21 - Notice Requiring Possession of an Assured Shorthold Tenancy

 

Section 21 Notice Requiring Possession of an Assured Shorthold Tenancy

 

(The Housing Act 1988)

Under the Housing Act 1988, a landlord who has granted an assured shorthold tenancy has a legal right to get his property back at the end of the tenancy. In order to invoke this right, he is required to follow the correct legal procedure which includes service of a notice (under section 21 of the Housing Act 1988) on his tenant. Section 21 is divided into subsections with different rules applying to notice served during the fixed term of a tenancy and notice for possession that is served during a statutory periodic tenancy.

 

Fixed Term Tenancies:

 

Section 21 of the Housing Act 1988 requires that the landlord provides tenants of an Assured Shorthold Tenancy (AST) with a minimum of two months' notice in writing that he/she wants possession of the property. Extra days should be added if the notice is to be sent by post as the two months starts when the tenant receives the notice.

The notice must be served before possession action can be started. In the case of joint landlords the notice can be given by any one of them. Possession under this section cannot take place during the initial six months of the original tenancy. The provisions in section 21(1)(b) apply to fixed term tenancies. They state:

Without prejudice to any right of the landlord under an assured shorthold tenancy to recover possession of the dwelling-house let on the tenancy in accordance with Chapter I above, on or after the coming to an end of an assured shorthold tenancy which was a fixed-term tenancy, a court shall make an order for possession of the dwelling-house if it is satisfied-

a) that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than a statutory periodic tenancy: and

b) the landlord, or in the case of joint landlords, at least one of them has given to the tenant not less than two months' notice stating that he requires possession of the dwelling-house.

Notice under this subsection can be served on a tenant at any time during the fixed term of the tenancy (but not before the fixed term begins) provided that the tenant receives a minimum of two months' notice. This is the case even if the two months notice ends after the tenancy agreement has expired. For example, if notice requiring possession is served on the last day of the tenancy agreement, the tenant does not have to give up possession of the dwelling-house until at least two months after the date that the notice was served.

 

 

The notice should be dated in accordance with the provisions above. Also, a notice should not be dated to expire on or before the last day of the tenancy as this would be invalid. For example, where the tenancy was due to expire on December 31st, then the section 21 notice could be served on or before October 31st, and the notice dated to expire ‘after December 31st'.

 

Periodic Tenancies:

 

S.21(4)(a) of the Housing Act 1988 applies to assured shorthold tenancies that have become periodic and states:

Without prejudice to any such right as is referred to in subsection (1) above, a court shall make an order for possession of a dwelling house let on an assured shorthold tenancy which is a periodic tenancy if the court is satisfied-

(a) that the landlord or, in the case of joint landlords, at least one of them has given to the tenant a notice stating that, after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the dwelling-house is required by virtue of this section; and

(b) that the date specified in the notice under paragraph (a) above is not earlier than the earliest day on which, ........, the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the notice under paragraph (a) above

The procedure for serving notice under s21(4)(a) is slightly more complicated. A notice complying with the above section should only be given to a tenant whose tenancy has become a statutory periodic tenancy - a tenancy that continues after the expiry of a fixed term assured shorthold. A minimum of two months notice is required and the day on which the notice expires must be the last day of a period of the tenancy. The period of a tenancy depends on how often the rent is paid. Thus, if the rent is paid monthly, then the period of the tenancy is one month. In order to find out what day is the last day of the period in a particular tenancy it will be necessary to refer to the original fixed term tenancy. The periodic tenancy begins immediately after the fixed term expires. E.g. If the period of the tenancy is monthly and if the first day of the current period is 3rd March then the last day of that period would be the 2nd April and so a notice served during the current period would need to be completed so as to expire on the last day of a period after a further two months (i.e. 2nd June).

 

 

If the tenant does not leave on expiry of the notice, possession can be sought through the courts by either the normal fixed date action or by using the accelerated possession procedure. (Please refer to the Letting Centre Possession and Rent Arrears Pack for further information).

To recover outstanding rent and possession of a dwelling house, the landlord must seek possession by issuing a notice under section 8 of the Housing Act 1988, as amended by the 1996 Act and it is not necessary to issue a section 21 notice as well.

 

 

---------------

 

Looking for more on this, but it sounds like the landlord wants possession and also hasn't prepared for the fact they will get it!

 

Hope this helps

 

tallorder

 

-----------

 

JOA has similar info and may be the expert on this one...

 

http://www.consumeractiongroup.co.uk/forum/landlords-tenants/74058-seeking-possession-eviction-notice.html

[LittleMissSunshine]

Thanks all for your help. I have send an email last night to the agency/landlord stating the obvious (i am out by the end of the week, i am elligble for rent up to the end of the week and they cannot get any more rent after that)

Currently I am awaiting their reply and hopefully get it soon and that it is positive. Dont really fancy going to court over this, but there is quiet a lot of money on stack so wont hesitate to do so, especially with all the advice here.

 

LMS

[MrShed]

I would have thought that they would back down before it got to that stage anyway. Good luck though, let us know!

[LittleMissSunshine]

Well MrShed i wish you were right. Hereby the reply from the landlord (extract from email)

 

As mentioned previously you will still be liable to pay the rent till the end of the period which is 28th August 2007. The notice was served to you on the 24th April 2007 which is more than the 2 months that has to be provided by your landlord as per your tenancy agreement. With regards the check out we can confirm an appointment for the 4th August 2007 once I have a confirmation in writing from you that you are happy to pay the rent till the 28th August 2007

So any advice? I have found another house, I am moving tomorrow, so what is best to do? I am thinking about replying in the line of, I dont have to pay, you want me to pay so i think the only solution is to go to court....

Can anyone give advice? I more or less expected this reply from them but as you can understand am far from happy.

Thanks

LMS (getting stressed)

[LittleMissSunshine]

Guess what, after numorous emails this week, the agent still wants me to pay till the end of August which I dispute. They keep pressing me for written confirmation, otherwise i cannot check out.

 

I keep stating that i will check out on the 4th and saying i will take legal actions to solve the dispute. Apparently they have either a hard time listening (or reading) or are very stubborn, or outright stupid (sorry, no offence to others)

 

So, what to do next????

 

I will go to CAB to get some advice there, but does anyone here no what to do??? Small claims?????

 

I really appreciate some feedback as i would not be surprise if the agency also tries to screw me over the check out.

 

By the way, the house is still not advertised for, despite a sign for the last 2 months in the garden. But i think they want to improve the property first before renting. If they do that, does that help with the check out. After 4 years there is lots of wear and tear, but i think the landlord is gonna try to get as much from me as possible to support their 'upgrade'. What can I do????

 

I am going to take lots and lots of pics so that will help.

 

 

Please give some advice as I am really fed up with this agency

 

LMS

 

P.s. this agency is also going to be subject to investigation by Trading Standards

[simonjohn]

Some landlords and their agents really do try to take the biscut....

 

Mr Shed is quite correct in his previous response...

 

I would take a look at the notice to quit..

 

If it says that you have to leave by, a certain date, as opposed to on a certain date. Then the landlord or agent would not have a proverbial leg to stand on if they tried to persue you through the courts for a rent after the day you move out.

 

In fact I dare say that if you left mid week of a rent period, that they shouldn't be able to persue you for the full week after serving you notice to quit, however I would check this assumption out first.

[callumsgran]

Good luck with the move LMS my thoughts are with you!

[LittleMissSunshine]

Thanks Cillitbanger, the move went ok, but still fighting with the landlord.

We went to CAB today to get some advice, and even they are confused (!). First of all they are not sure my last contract is valid, second they say that the eviction letter refers to S21b, but the notice attached is S21 4, and third, they think also the notice is incorrect

 

But they say they cannot help any further but send us to the Local Council House Help (apparently a special department within the council housing).

 

Just have to wait and see what these people can tell me. But it seems that it can be a long fight

 

But at least I have a brilliant new house, with a very good agency

 

Oh and of course, at check out i have made tons of pics (still have to sort them), but havent had official agency check out yet as they refuse to do this until I have confirmed I pay until the end of August. So lets hope nothing happens to the house in the meantime (!!!!)

 

the story continues.......................

[LittleMissSunshine]

An update

have today dropped the key with a letter at the agency to handover the property. So now it is waiting for feedback from them and formal reply.

Dont know what is going to happen now and how persistent the agency will be.

 

Also finally yesterday I found the house posted on the agency's website, stating that its a 2+1 (its a 3 bedroom), has double glazing (hasnt, does have rotten windows though) and available by the 5th.

 

I have a suspicion why the agency wants me to pay until the end of August. There has to be done massive work before new tenants come in (new windows throughout, painting everywhere, re-carpeting) and i think they have booked in workers for beginning of September before new tenancy starts. They probably dont want to bother rearranging it.

 

I also wonder, if the agency is going to do that, how much can they deduct from my deposit for issues they may have? I have tons of pics, so we know how it looks now. We also walk past the house regularly, to keep an eye on it and see if they start working or not or make changes.

 

Anyway, I think it is going to be a court case, as i dont expect the agency all of the sudden make a u-turn.

 

I will keep you guys posted.

 

LMS

 

ps. funnily enough when we were at the CAB they heard our story and asked, is this by any change ...... agency. When we said yes, they said 'Oh' and person we spook to left to speak to others. Apperently we are not the first with problems and the agency has by now a bad new by CAB, Council and other agencies. Hope this can work in our favour

[Aequitas]

My understanding from S21 was that you could leave anytime during that notice as long as its after the formal end of your tenancy. You dont have to sit out till the end and dont have to pay till the end.

 

I do not think that that is the strict legal position. Unfortunately, the question is not addressed by the Housing Act 1988 or any amendments to it. This is how I see the situation:

 

First, if a tenant under an AST is in occupation, when a fixed term tenancy comes to an end a statutory periodic tenancy arises. A tenant who wants to bring that tenancy to an end needs to give notice.

 

Secondly, a S21 Notice does not bring a tenancy to an end - it is merely a preliminary to court action. Where the tenant is in occupation, a landlord can only bring a tenancy to an end by a court order. Since the tenancy continues, a tenant who wishes to leave before the date the tenancy ends in accordance with the court order must give notice in accordance with the law.

 

What may save you in this case is if the landlord takes back the property before the 28th August. If he does that the tenancy comes to an end on the day possession is taken ending the liability to pay rent from that day.

[LittleMissSunshine]

Well sort of victory. Thanks to some external help we got this finally solved.

They external help guided is towards the NAEA website and the Ombudsman for Estate agents website. There I found the details of the company director (very usefull)

Send a direct letter of complaint to the director and stating in the issues several points where they fail to meet the requirements of these organisations.

 

Result -> full payback of the deposit and no need to pay rent until the end of the month. They wont charge me with exit fees or any problems with the property!!!

 

So now awaiting the check and than see if i get the money.

 

Although still lots of issues have never been solved, i will just let it be as i moved to other, much much better agency.

 

So thanks here for the help and maybe it is usefull to get a sticky where the two above organisations are mentioned. As they give me the information I needed to solve this within a day !!!

 

Cheers

LMS