Serving a Section 21.

sarlyka

I have been renting out a house for the last 10 months. I use a letting agency to manage this. My tenant had an AST for the first 6 months and I served a Section 21 giving her notice to leave the property in November last year. However, after discussion with the agency, I agreed to allow the tenant to stay on a rolling tenancy. I did not renew the AST.
Recently, there has been some minor damage to the property, caused by a friend of the tenant. This has apparently been sorted out: the police were called, the person was charged, the damage is being repaired. My letting agency advised me to begin court proceedings to have the tenant evicted. As I had already served a Section 21, I didn't need to give notice again. However, I gave the tenant permission to stay so should I serve a new Section 21?
I don't want to go through solicitors and the court if I don't need to as that would be expensive for all involved and might not be necessary. The tenant might agree to move out if she is asked to go. It would seem courteous to give her that opportunity.
Can anyone advise?

Fire_Fox

You need to serve a new S21 as you verbally cancelled the previous one. You have still been accepting rent for the property and not tried to evict so you have certainly been accepting the tenant is legitimate. Do you really want to evict a paying tenant over one incident?

Jowo_2

FF - are you certain that merely by not acting on a valid S21, it gets cancelled? I don't know, I'm just raising the query as I thought once the S21 has been served, even at the outset of the tenancy, it was fairly easy to then proceed to raising a possession notice in court but I suppose it can be invalidated in some way.

The OP could consider Landlord Action if negotiation doesn't work with the tenant as I assume they are a lot cheaper than a solicitor and the payment schedule is staggered so it just depends how far in the eviction process the landlord has to go.

Fire_Fox

Jowo wrote: »

FF - are you certain that merely by not acting on a valid S21, it gets cancelled? I don't know, I'm just raising the query as I thought once the S21 has been served, even at the outset of the tenancy, it was fairly easy to then proceed to raising a possession notice in court but I suppose it can be invalidated in some way.

I said the OP had verbally cancelled the S21 not merely had failed to act upon it (see bold below). A verbal contract is still a contract, a tenancy is a tenancy whether it is in writing or not. Of course there is the issue of whether the tenant can PROVE the S21 was rescinded verbally, but by accepting rent a court may well decide that on balance of probability it was. In any case that means the OP and letting agent lying in court which we cannot condone.

asteroids_sara wrote: »

I have been renting out a house for the last 10 months. I use a letting agency to manage this. My tenant had an AST for the first 6 months and I served a Section 21 giving her notice to leave the property in November last year. However, after discussion with the agency, I agreed to allow the tenant to stay on a rolling tenancy. I did not renew the AST.
Recently, there has been some minor damage to the property, caused by a friend of the tenant. This has apparently been sorted out: the police were called, the person was charged, the damage is being repaired. My letting agency advised me to begin court proceedings to have the tenant evicted. As I had already served a Section 21, I didn't need to give notice again. However, I gave the tenant permission to stay so should I serve a new Section 21?

sarlyka

I don't know if I have verbally cancelled out the original S21. It just seems wrong to suddenly take court action when I have agreed to allow he tenant to stay. Like FF said, I have been accepting rent etc. It is one incident but there have been a number of minor breaches to the tenancy agreement. I would rather give her time to find a new place to live and end the tenancy amicably.

Fire_Fox

asteroids_sara wrote: »

I don't know if I have verbally cancelled out the original S21. It just seems wrong to suddenly take court action when I have agreed to allow he tenant to stay. Like FF said, I have been accepting rent etc. It is one incident but there have been a number of minor breaches to the tenancy agreement. I would rather give her time to find a new place to live and end the tenancy amicably.

You stated earlier you agreed to the tenant going onto a rolling tenancy, what does this mean if not that you cancelled the S21? A tenant can only go onto a periodic tenancy AFTER a fixed term has expired, i.e. all the terms and conditions of the original AST stand. Is there more to that part of the story than you are letting on? What was said to the tenant?

Fire_Fox

According to Franklee, our resident Sword of Damocles expert
"Do be aware if you go onto a periodic tenancy the S21 will remain in force meaning the landlord can apply to court for possession at any time with no need to serve you another two months notice."

franklee

Fire_Fox wrote: »

According to Franklee, our resident Sword of Damocles expert "Do be aware if you go onto a periodic tenancy the S21 will remain in force meaning the landlord can apply to court for possession at any time with no need to serve you another two months notice."

Yes that's right, but in this case we'd need to consider that the landlord "gave the tenant permission to stay" after the S21 was served.

asteroids_sara wrote: »

As I had already served a Section 21, I didn't need to give notice again. However, I gave the tenant permission to stay so should I serve a new Section 21?

Of course the landlord could just deny what was said (a tenant should ask for all important points in writing) but assuming the OP won't do that, is the S21 still valid? Well the experts I've come across disagree.

On the one hand we have a document that was on Painsmith's (a solicitor) website (no longer present since the website was changed some months ago):

TERMINATION OF AN ASSURED SHORTHOLD TENANCY By Marveen Smith
"8. If the landlord agrees to the tenant extending the tenancy for say a week or ten days after the section 21 Notice expires then the Notice will be void and would have to be served again. Never agree an extension for a short period of time without the consent of the landlord, and warning him his Notice would be void.
9. If the landlord or agent writes offering to extend the tenancy any Section 21 Notice served prior to the letter or at the same time as the letter will be technically void, as there is a conflict between the two actions."

and posts by Paul F a well respected landlordzone poster who had many years experience in lettings:

http://www.landlordzone.co.uk/forums/showpost.php?p=32964&postcount=24

"A S.21 Notice MUST be "unequivocal" and "without reservation" i.e. unconditional, so as soon as you start entering into negotiations about a further tenancy, or conditional withdrawal of the Notice then you are effectively withdrawing it anyway. The tenant might use the Protection from Eviction Act 1977 to defend a S.21 Notice in that the landlord can't say "I want possession" and then on the other hand say "but I might not""

On the other hand there are a couple of newer posters on landlordzone who claim to have legal experience who indicate a S21 that was valid when served is indestructible and remains actionable short of a new tenancy agreement being signed regardless of what the landlord subsequently does.

Which is right? You pays your money and you takes your choice

asteroids_sara wrote: »

I don't know if I have verbally cancelled out the original S21. It just seems wrong to suddenly take court action when I have agreed to allow he tenant to stay. Like FF said, I have been accepting rent etc. It is one incident but there have been a number of minor breaches to the tenancy agreement. I would rather give her time to find a new place to live and end the tenancy amicably.

Makes sense, it'll be a shock to the tenant to be told you are to begin court proceedings to have her evicted without giving her any more notice after you gave her permission to stay after the current S21 was served. Any goodwill left would disappear IMO.

This does hi-light why this leaving the S21 dangling over the tenant's head is nickanmed the Sword of Damocles as a tenant can be left not knowing if or when court proceedings will be started. That's quite tough as most tenants really do need some notice to arrange moving and think they are entitled to two months before court proceedings can start. They do not realise the old S21 that they were told not to worry about was their notice and is still actionable. To cap that the tenant as the losing party will probably have to pay the landlord's court fee.

I think the law intended a tenant get two months notice but in reality that's not necessarily the case as when a tenant is told the the S21 is "just routine" or that they can stay they obviously don't use the notice time to arrange moving. I hope you let us know what you choose to do and how it goes

N79

If the LL took no action inconsistent with the S21 then it is still valid and the LL can go to court tomorrow. (Taking action would include, for example, offering a new tenancy). However, doing nothing and not starting court action does not count and the S21 remains effective.

If LL verbally withdrew the notice or acted in a way that implied the notice was withdrawn by their actions then a new S21 will need to be served (unless the LL intends to risk jail for perjury by lying).

sarlyka

I have explained the situation to the solicitor who was instructed by the letting agency to deal with this. I have told him that I think a new S21 might need to be issued. He has agreed. He explained that the original S21 might still be valid if there were clear and serious breaches of the tenancy agreement after I had verbally renewed the tenancy. However, he thinks that a court might rule in the tenant's favour if I was to try to use the original S21 now.
So, I will serve a new S21 which will give the tenant 2 months to find a new place to live. I feel that is fairer than just kicking her out with no notice or explanation.
Thanks very much for the information and advice.

franklee

asteroids_sara wrote: »

I have explained the situation to the solicitor who was instructed by the letting agency to deal with this. I have told him that I think a new S21 might need to be issued. He has agreed. He explained that the original S21 might still be valid if there were clear and serious breaches of the tenancy agreement after I had verbally renewed the tenancy. However, he thinks that a court might rule in the tenant's favour if I was to try to use the original S21 now.
So, I will serve a new S21 which will give the tenant 2 months to find a new place to live. I feel that is fairer than just kicking her out with no notice or explanation.
Thanks very much for the information and advice.

Thanks for letting us know what the solicitor said I hope it all goes well for you.