End of tenancy help

Imelda

N79 wrote: »

There is scope for you to dither about and make a mess here on the following grounds. Don't worry, you are going to be saved from your stupidity.

1. Your tenancy will convert to an AST on the 1 Oct. Therefore your notice to quit will no longer be valid and your LL will need to serve you with a S21 notice. Since this can not be served until the 1st Oct the earliest that it could expire is the 18th December. Note that a court may take a different interpretation of the above but it will take your LL much longer than 2 months to get a court to decide!

2. Even under a common law tenancy you have protection from eviction under the protection from illegal eviction act thus your LL can not force you to leave without a court order. Thus, if you stay put, your LL will need to go to court which will take longer than 2 months!

So my advice would be (assuming property is in England) to write to your LL along the following lines (I'm sure there are a few typos and spelling errors for you to sort).

============================================

We are writing to inform you that your notice to quit of XXXX date is not valid as our tenancy will become a statutory periodic tenancy on the 1st Oct in accordance with The Assured Tenancies (Amendment)(England) Order 2010 and thus we will gain the protections afforded by S5 of the Housing Act 1988.

In accordance with the Housing Act 1988 as amended you will need to serve us with a notice under Section 21 of the Housing Act 1988 as amended after the 1 October. The earliest date on which this notice can expire, and thus the earliest date on which you can seek possession is the 18 December 2010.

We wish to vacate the property on 18th November 2010. We are writing to inform you that once our tenancy converts to a statutory periodic tenancy we will serve our written notice on you to end the tenancy on the 18th November 2010.

We look forward to receiving your confirmation and the arrangement of our checkout in due course. We are willing to discuss suitable arrangements for you to access the property to conduct viewings in accordance with our tenancy agreement until the 01 October 2010 and at our convenience then after. [N79 Comment - it is very important that you respect any viewing clauses in your Common law tenancy until the 1st October as the breach of a viewing clause could lead to the LL sueing for possession on breach of contract.]

We remind you that we maintain at all times our legal protections from eviction by force under the Protection from Eviction act 1977 and we will not hesitate to enforce our rights if you choose to breach them.

Your sincerely

Imelda

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It is then very important that you do service your written notice on your LL after the 1st October and before the 18th October.

N79- that was my very next question!

Will the fact that the LL has already served notice prevent it from becoming an AST on Oct 1st? Will have a read up on the law now but you may already know

I do know that to evict us the LL would need a court order and this would take time, but I am reasonable person and really hoped we could have come to an arrangement that suited us both.

My DH has spoken to the LL and he has said we can stay until the end of October IF he hasn't found new tenants- still uncertain though. DH is much more placid than me and has said he will speak to the LL again when we have a more firm date for completion.

As for viewings, I think as we want to keep the LL onside we will be reasonable in letting them in, although I will be interested to know what availability date the marketing material will state.

I do love these boards

Imelda

sorry, cross posted. Thanks so much for your help N79, you have really put my mind at rest :beer:

N79

Imelda wrote: »

N79- that was my very next question!

Will the fact that the LL has already served notice prevent it from becoming an AST on Oct 1st? Will have a read up on the law now but you may already know

The truth is that it is impossible to give a precise answer. In my view there is no legal way that the mere existence of notice to quit will stop the conversion and the act of conversion invalidates the notice to quit.

If the LL could bring proceedings against you before the change then I believe that the tenancy could be ended under the Common law rules (ie any breach of the tenancy) rather than the AST rules (S8 permitted ground only). That is why I said that it was important to respect any viewing clauses up to the 1st October.

Only a judge could give you a definitive answer but it wont get that far.

I do know that to evict us the LL would need a court order and this would take time, but I am reasonable person and really hoped we could have come to an arrangement that suited us both.

Actually, they would not need a court order to end the tenancy under the common law tenancy. That protection comes from the housing act not common law. So the tenancy would end, you status would change from tenant to effectively like a squatter (I'd have to go find some books to get your exact status in such circumstances so I am using the term squatter as in common usage) and the LL would get an interim order from the courts to evict you in a matter of days, rather than the months required under the housing act.

My DH has spoken to the LL and he has said we can stay until the end of October IF he hasn't found new tenants- still uncertain though. DH is much more placid than me and has said he will speak to the LL again when we have a more firm date for completion.

LL is acting like an !!!! so there is no reason to not exercise your rights provided by statute to protect you. You have tried to be reasonable and had it thrown back in your face.

As for viewings, I think as we want to keep the LL onside we will be reasonable in letting them in, although I will be interested to know what availability date the marketing material will state.

I do love these boards

I agree that you should remain reasonable at all time. Personally I think it is reasonable for LL and T to agree one fixed half day at weekends and one fixed evening (1730 - 1930) per week for viewings but your views may differ.

You should also note that your LL will be able to serve valid notice for the 18th Dec so either way you should plan on getting your house purchase finished ASAP.

tbs624

N79 wrote: »

There is scope for you to dither about ......

I'm sure TBS (and others) will have her own opinion on the enforceability of Notice to Quits issued while the tenancy was a common law tenancy but expiring after the conversion to an AST.

My views align with your own N79. Like you, I highlight that this is nothing more than my view. I think there will be much confusion on this one and probably a couple of "unfair" court decisions.

Am also of the opinion that the usual min 6 months' security for a T under a first AST will add to the muddle.

Lawyers seem to be divided on whether or not any tenancy deposit should be scheme registered within 14 days of October 1st in much the same way that there was initial confusion over whether a deposit should be scheme registered upon a new FT AST being granted, after an original FT pre 6 April AST had expired and same T was staying put.

As we know, a s21 is not valid if it was served before a deposit which is required by law to have been registered, is actually registered.

If, as a LL, I had wanted to regain possession early this autumn I would have made absolutely certain that I had given my T an appropriately dated NTQ to expire *prior* to the end of this month ( or sought a deed of surrender from the T) to avoid the confusion which will undoubtedly reign after October 1st.

N79 wrote:

If the LL could bring proceedings against you before the change then I believe that the tenancy could be ended under the Common law rules (ie any breach of the tenancy) rather than the AST rules (S8 permitted ground only). That is why I said that it was important to respect any viewing clauses up to the 1st October.

My understanding is that the LL would have to have applied to the court for possession and got a hearing before the end of this month.

N79

tbs624 wrote: »

My views align with your own N79. Like you, I highlight that this is nothing more than my view. I think there will be much confusion on this one and probably a couple of "unfair" court decisions.

Am also of the opinion that the usual min 6 months' security for a T under a first AST will add to the muddle.

It causes a muddle. My view is that the 6 months does not apply (unless the common law tenancy had run for less than 6 months) because Section 21 (5)b has always been intended to cover replacement tenancies (albeit via surrender) and should equally apply here. Thus it is the start date of the common law tenancy which counts. A high court judge could take the opposite view, of course.

Lawyers seem to be divided on whether or not any tenancy deposit should be scheme registered within 14 days of October 1st in much the same way that there was initial confusion over whether a deposit should be scheme registered upon a new FT AST being granted, after an original FT pre 6 April AST had expired and same T was staying put. As we know, a s21 is not valid if it was served before a deposit which is required by law to have been regsitered, is actually registered.

Fortunately this one is an easy fix. LL's should just play it safe by registering the deposit.

If, as a LL, I had wanted to regain possession early this autumn I would have made absolutely certain that I had given my T an appropriately dated NTQ to expire *prior* to the end of this month ( or sought a deed of surrender from the T) to avoid the confusion which will undoubtedly reign after October 1st.

Absolutely.

My understanding is that the LL would have to have applied to the court for possession and got a hearing before the end of this month.

Edit: I misunderstood the point you were making - I thought you were referring to the NTQ rather than to a tenancy term breach. I tend to agree with you but went for the belt and braces approach of not inviting an "unfair" court ruling.

theartfullodger

If a tenancy in England is for less than £25k pa and it grants "exclusive possession" of some of the property (eg a room, or a house, or a flat) and you pay rent (not minimal) then, regardless of what the wording of the tenancy says, it is an AST (initially) and then becomes a periodic tenancy, on the same terms as the AST. It does not become a "common-law tenancy". Key thing is rent must be below £25k pa (currently). This threshold changes on 1st October 2010 to £100k. As you will still be in occupation then, even if rent is, say, £80k pa, you will then have an AST/periodic equivalent so LL will have to comply with these AST rules....

Don't believe me?? Try this..
http://england.shelter.org.uk/get_advice/downloads_and_tools/tenancy_checker

See the famous case of "Street vs Mountford" 1985

Agreement for exclusive possession at a rent for a term a tenancy, despite label

So, LL must give you 2 months notice - timings herewith...
http://england.shelter.org.uk/get_advice/renting_and_leasehold/private_tenancies/assured_shorthold_tenancies#2

However, if your landlord doesn't have a reason to evict you, the notice must be at least two calendar months or the same period for which rent is paid, whichever is longer. If your tenancy is periodic, the notice should end on the last day of a tenancy period (the day before your rent is due).

However, even were a valid notice2quit issued, that is just that: A tenancy can only be ended (if you decline to leave) by court possession order. To get this the wicked money-grabbing LL must apply to the court after the valid notice has expired & gain possession order: Still don't need to leave. Wait for Bailiffs to arrive, then they carry you out.. Realistically say 6-8 weeks after expiry of valid notice. Surprising many LLs get notices wrong: As do agents, as do solicitors(!).


LL is trying to cheat.

You also do not have to let anyone (Landlord, agent, estate agents, repair men (careful..), viewers, purchasers, prospective tenants) visit if you state you do not allow it(preferably in writing, keep copy).

Cheers!

Artful (LL since 2000)