What Happens after a year - 'Rental'

BobProperty

prudryden wrote:

Bob/Frank-
Read post #4, what do you think of that procedure?

I think you have just created a new 12 month AST on almost identical terms as the previous AST. If I was your tenant, I certainly think I could find a solicitor to argue that if it came to it.
I use to work on the basis of AST to start with, then I left it and it went periodic. Any other circumstances and I'd start again with a new AST.

prudryden

Hi guys,
OK - I just checked with my advisor who runs the letting dept. of one of the franchises of an internationally know Estate/Letting Agency. This person has been on many legal courses and seminars over the years. She quoted me legal cases that she has been to.

RE: Section 21 (Notice to quit)
A LL should never give a Section 21 at the start of a tenancy, because if it does expiry or if it is incorrect in any way, especially dates, THEN you can not issue a second one. You don't get a second chance.
You should ONLY serve a Section 21 two months in advance once you decide you want the tenants to leave. The dates have to be spot on and is the most important item to get right.

BobProperty

prudryden wrote:

Hi guys,
OK - I just checked with my advisor who runs the letting dept. of one of the franchises of an internationally know Estate/Letting Agency. This person has been on many legal courses and seminars over the years. She quoted me legal cases that she has been to.

RE: Section 21 (Notice to quit)
A LL should never give a Section 21 at the start of a tenancy, because if it does expiry or if it is incorrect in any way, especially dates, THEN you can not issue a second one. You don't get a second chance.
You should ONLY serve a Section 21 two months in advance once you decide you want the tenants to leave. The dates have to be spot on and is the most important item to get right.

I suggest they get a refund then.
It was and still may be normal to issue two S21s of one type because the law was unclear on which date applied, so landlords issued two with the two possible dates and used the later date to base any subsequent action on. (I think I've done that some time back).
You can issue as many S21s as you like. Where in law says you can't? The point is the last one issued and the one you use in court must be the same and right. If your friend is correct then an invalid S21 would mean you could never get the tenant out using an S21. If you issue only one S21 and it is correct, it stands for that tenancy. It does not "expire", it is on or after IIRC.

prudryden

I'm still lost then. I do know that my contracts read I can give two months notice anytime after the 4th month. After the initial 12 months, there is a memorandum attached confirming the agreements in the original contract and that I can give two months notice at any time for the next 12 months.
It seems ok to me. What do you think?

BobProperty

prudryden wrote:

I'm still lost then. I do know that my contracts read I can give two months notice anytime after the 4th month. After the initial 12 months, there is a memorandum attached confirming the agreements in the original contract and that I can give two months notice at any time for the next 12 months.
It seems ok to me. What do you think?

Stop thinking "2 months before" the end of the contract and think "at least 2 months before". You can issue the notice at the start of the contract because
1. it has to be at least 2 months notice and
2. you can't end the tenancy until the initial period of the tenancy ends. As that is a minimum of 6 months and ends on a specific date, then you can date the notice to fit in with that end date.
You contract says 2 months after the 4th month because you can't remove the tenant before 6 months is up. It's just not the best way of thinking about it IMHO.
But you appear to have an initial period of 12 months, so I don't think notice given between months 4 and 10 would be valid. The tenant has the tenancy for the initial period in the tenancy agreement which you have referred to as "the initial 12 months".
Once you are past the "initial 12 months" then my way of doing it, is you leave it. You have a periodic tenancy, there are laws on how you have to give notice in those circumstances and the minimum period of notice is 2 months by the landlord, again IIRC. But, if you have already issued an S21 correctly, you don't need to worry about that.
Also, depending on what is in the memorandum and covering letter, you may invalidate the S21, which is what franklee was detailing.

franklee

BobProperty wrote:

I see the point you are making now franklee. From a landlord's point of view, so long as you don't want the tenant out now, then you just leave it. Even writing to say you agree that the tenancy has gone periodic and saying the tenancy continues on this basis could be "shooting yourself in the foot" if you want the tenant out soon. This doesn't mean to say that all landlords and LA will realise this and get it right though, there's plenty of landlords and LAs (and solicitors come to that) who don't understand the laws.

Yes that's it. The landlord has to be careful not to shoot himself in the foot by giving the tenant reason to think he can remain in occupation. If he does shoot himself in the foot in conversation then it'll probably be OK as the tenant will either forget what was said or have no proof. If it's in writing then the tenant will have reason to challenge the S21.

This issuing of the S21 early in the tenancy when the landlord doesn't want the tenant to go is basically exploiting a loophole that allows the landlord to effectively dispense with having to give the two months notice to the tenant. Technically the notice has been given but practically if the tenant is led to believe the landlord doesn't actually want him to go, by the landlord issuing it early on as just a formality that is then forgotton about, and so remains then the tenant has lost the two months notice that he would use to organise the move - find a new place, pack, do the removals etc. The tenant on a periodic tenancy with a valid expired S21 is left with having to move at the drop of the landlords hat or the landlord goes straight to court for possession.

On landlordzone they call this the Sword of Damocles.

Obviously the court procedures take some time but the tenant doesn't know how long, has to pay the landlord's fees and most importantly may have his references messed up making it harder to find somewhere else.

This doesn't matter for Kuztardd who is planning to buy so doesn't need the references, and the fees will be cheaper than having to sign up to another six months at the current place or even worse having to move to a new rental before buying. Also the tenant on a periodic tenancy with a valid expired S21 can leave at any time without notice which when buying a house could be useful as it's sometimes difficult to predict when you will exchange and complete on a house purchase.

franklee

prudryden wrote:

Hi guys,
OK - I just checked with my advisor who runs the letting dept. of one of the franchises of an internationally know Estate/Letting Agency. This person has been on many legal courses and seminars over the years. She quoted me legal cases that she has been to.

RE: Section 21 (Notice to quit)
A LL should never give a Section 21 at the start of a tenancy, because if it does expiry or if it is incorrect in any way, especially dates, THEN you can not issue a second one. You don't get a second chance.
You should ONLY serve a Section 21 two months in advance once you decide you want the tenants to leave. The dates have to be spot on and is the most important item to get right.

prudryden, your contracts are unusual and not the normal way of doing things. I would be very interested to know which agent this as as if it's "internationally known" then there may be branches near me.

Your case doesn't apply to Kuztardd as it's the landlord/agent that supply the contract not the tenant so having a contract like yours isn't an option for Kuztardd. Besides I do not see what use your contract is, you may as well either have a new fixed term or go on to a periodic tenancy depending on what the landlord and tenant want. I don't see the need to complicate things any further.

You can issue as many S21s as you like. If there is more then one then you just have the headache of working out which ones are valid and which are not and which ones supersede the others. I think the tenant would be justified in following the one that suits him best as you cannot issue notice then unilaterally withdraw it at the last minute once the tenant has already committed to move. It's if the tenant ignores them all that the landlord has to determine which one to go to court with.

I agree with that last bit the dates have to be spot on and it is essential to get them right!

prudryden

franklee wrote:

prudryden, your contracts are unusual and not the normal way of doing things. I would be very interested to know which agent this as as if it's "internationally known" then there may be branches near me.

Your case doesn't apply to Kuztardd as it's the landlord/agent that supply the contract not the tenant so having a contract like yours isn't an option for Kuztardd. Besides I do not see what use your contract is, you may as well either have a new fixed term or go on to a periodic tenancy depending on what the landlord and tenant want. I don't see the need to complicate things any further.

You can issue as many S21s as you like. If there is more then one then you just have the headache of working out which ones are valid and which are not and which ones supersede the others. I think the tenant would be justified in following the one that suits him best as you cannot issue notice then unilaterally withdraw it at the last minute once the tenant has already committed to move. It's if the tenant ignores them all that the landlord has to determine which one to go to court with.

I agree with that last bit the dates have to be spot on and it is essential to get them right!

Maybe I'm getting confused on the difference between a S21 and the contract I have with the tenants, which simply states that I must give them two months notice and they must give me two months notice to terminate the contract early.

I was told that the memorandum after the first AST is to confirm that the ongoing tenancy is still subject to the terms of the original contract (except the break clause) and that each party must give two months notice to quit.
Both parties have agreed and signed this contract.

Is there a potential problem with this? And why doesn't an agency who has
dozens or more inhouse lawyers who devise these contracts and have been in more court cases over the last 30 years than I could read about do what is right? Why would they tell me that this memorandum insures that, if I want, I can raise the rent at the end of the next 12 months, if they want to stay for another period? Why would they tell me I can only issue one quit notice per term?

franklee

BobProperty wrote:

If you issue only one S21 and it is correct, it stands for that tenancy. It does not "expire", it is on or after IIRC.

PS (Sorry but for three posts in a row but I'm just answering the points raised). We need to be a bit careful what "expire" means here.

The S21 has a "date of expiry: e.g. "date of expiry, after 29/03/2007". This means the date at which the notice expires. In other words the date at which the notice ends and either the tenant moves out or the landlord, if they want to, can go on to the next stage in the eviction process. It does not mean the date on which the S21 becomes invalid or stops working. An S21 remains valid indefinitely if nothing is explicitly done to invalidate it. Things that invalidate it are the issuing of a new fixed term, the landlord writing a letter saying the tenant can remain after the expiry date etc.

Of course if the landlord wants to operate a "Sword of Damocles" then he simply does nothing, does not go to court for possession, keeps collecting the rent. Then months or even years later when he wants his property back ASAP he doesn't need to issue the two months notice as that expired months or years ago.

This is the law we have now, but moves are afoot to change things and close this loophole in the new rented homes bill. Then we will all have to learn a new set of hoops to jump through!

franklee

prudryden wrote:

Maybe I'm getting confused on the difference between a S21 and the contract I have with the tenants, which simply states that I must give them two months notice and they must give me two months notice to terminate the contract early.

I was told that the memorandum after the first AST is to confirm that the ongoing tenancy is still subject to the terms of the original contract (except the break clause) and that each party must give two months notice to quit.
Both parties have agreed and signed this contract.

Is there a potential problem with this? And why doesn't an agency who has
dozens or more inhouse lawyers who devise these contracts and have been in more court cases over the last 30 years than I could read about do what is right? Why would they tell me that this memorandum insures that, if I want, I can raise the rent at the end of the next 12 months, if they want to stay for another period? Why would they tell me I can only issue one quit notice per term?

You haven't named the agent, if you did I may be able to help a bit if it's an agent whose contract I've seen. Your terms are unusual, whether or not it works would depend on the contract which we haven't seen. There is nothing we can really do for you to answer these questions. I suggest Kuztardd ignores your contract as it doesn't apply to him.