Section 21

prudryden

In your contract, there should be a section called something like "Interpretations and definitions". Does it say in that section that any notices may be given either by the agent or landlord?

Also, throughout the contract, does it say "either agent or landlord". If it does, then I contend that the S21 notice is not being enforced by reason of the letter they sent to you. It may even have been invalidated.

Another reason for not issuing a S21 at the beginning of a tenancy.

Ok guys, what's the score now on adv. vs disadv.?

littlesaint

Thanks Pru. This is very helpful. Will check out my contract tonight and the other offending documents and report back then.

Tiglet

littlesaint wrote:

You are probably right that the LAs are !!!!ed off and we should keep on their good side. Does the fact we cannot get in touch with the landlady harm our chances of using that approach?

Quite the reverse, I would say. I am assuming that the agents are basically motivated by money. They will want you to remain as tenants because that means they get paid by your landlady and all they have to do is print off another set of paperwork. I would expect that they would be quite understanding if you were to tell them that you wanted to get the s21 notice invalidated, because then you would be able to stay and they would get paid for doing nothing.

If you decide to leave, then they will have empty house that they can't rent out without instructions from the landlady. Even if she decides that she does want to rent it out again (and gets in touch with them), then the agents will have to work a lot harder to earn their money.

prudryden

Tiglet wrote:

Quite the reverse, I would say. I am assuming that the agents are basically motivated by money. They will want you to remain as tenants because that means they get paid by your landlady and all they have to do is print off another set of paperwork. I would expect that they would be quite understanding if you were to tell them that you wanted to get the s21 notice invalidated, because then you would be able to stay and they would get paid for doing nothing.

If you decide to leave, then they will have empty house that they can't rent out without instructions from the landlady. Even if she decides that she does want to rent it out again (and gets in touch with them), then the agents will have to work a lot harder to earn their money.

Exactly - The agents currently have a continuous cash flow from your rental. They would prefer to keep it that way, rather than have to go out and show the flat several times and negotiate with the two parties again.

littlesaint

OK, I've got my contract and the other stuff with me. The notice we got from the landlord with are contract is headed at the top:

Housing Act 1988, Section 21 (1) (b)
As amended by the Housing Act 1996

Assured Shorthold Tenancy: Fixed Term
Notice Requiring Possession

Then it states name and the address of tenants, and then the landlady with her C/O address.

Then they put the address of dwelling and state "I give you notice that I require possession of the swelling house known as...."

They then put "Date of Expiry: From 10th March 2007"

Then it is signed (it doesn't state who has signed it and the signature is not the same as the one the contract, nor does the signiture resemble my landlady's name). It then puts the letting agents address.

Then come the notes (same ones as on my original post on this thread). Then there's infomation for tenants.

I'll start a new post for the contract once I've examined it.

Pru and Tiglet, very encouraging information, you're both very helpful.

Tiglet

prudryden wrote:

Ok guys, what's the score now on adv. vs disadv.?

I can't see any significant reason why it benefits either the landlord or the tenant to issue a Section 21 notice unless the landlord actually intends the tenant to leave.

littlesaint

OK, here what the contract says...

prudryden wrote:

In your contract, there should be a section called something like "Interpretations and definitions". Does it say in that section that any notices may be given either by the agent or landlord?.?

It says:

"Landlord: A person or persons who at any relevant time own or have a formal interest in, the premises that gives them the right to possession of the premises.

Agent: Any letting or management agent, or any other duly authorised person, notified to the tenant, who is acting from time to time on behalf of the landlord."

prudryden wrote:

Also, throughout the contract, does it say "either agent or landlord". If it does, then I contend that the S21 notice is not being enforced by reason of the letter they sent to you. It may even have been invalidated.

I've looked through the first two pages and it's quite inconsistant. In some places it refers to the landlord and in other places it refers to the landlord or his agent. I could give some examples if it would help?

littlesaint

And the letter we received in December...

"At the start of your tenancy you were issued with, in accordance with clause (10) of your Tenancy Agreement, Section 21 (1) (b) of the Housing Act 1988 serving the statutory sixty six days notice to gain repossession of the above mentioned property on 10th March 2007.

I would be grateful if you could let us know at your earliest convenience, with confirmation in writing, whether you would like to stay on at which point we can approach your Landlord to ensure that he wants to continue letting the property."

We indicated on the phone on January 8th that we wished to stay and in writing on 11th January. All we have heard since is that the letting agents can't get in touch with her.

franklee

BobProperty wrote:

Periodic. No questions, the initial period has ended, there is no change to the agreement therefore it becomes periodic. I don't think anyone would try to argue otherwise.

Yes but with the important difference that the landlord's notice to the tenant has already expired!!!!! This means the landlord can go to court for possession at any time without giving the tenant any further notice!!!!

BobProperty wrote:

But they can walk out at the end of the AST anyway.

And that justifies making a tenant live without notice? it does actually take some time to find new accommodation and move house! Besides under the "Sword of Damocles" the landlord hasn't just dispensed with the notice he has to give the tenant, he has dispensed with the need for the tenant to give notice too! So once periodic the tenant can just leave anytime without notice.

BobProperty wrote:

Probably not sign the tenancy agreement myself or not hand it over, therefore no contract.

But you can only get the tenant to sign the S21 *after* the tenancy has started or it will be invalid. Therefore the tenant can refuse to sign and ask you to leave!

BobProperty wrote:

If it has got past that point, send an S21 shortly afterwards, as suggested by others, or use a process server if it came to it.

Thus proving it is quite possible and easy to serve an S21 later on so there really isn't a *need* to serve it on day 1!

BobProperty wrote:

That's why I made the comment earlier about "a legal necessity to cover me (the landlord) if I needed to get them out at a later date". I also used to make it clear that if I had no problems with them (the tenant(s)) I would be happy for them to stay on. There needs to be communication between the landlord and tenant otherwise one side or the other will make assumptions and one side or the other will end the tenancy when it is unexpected by the other.

You cannot make a S21 conditional. You are misleading the tenant as to it's meaning and if the tenant could prove what you said they could prove the S21 has been invalidated. The S21 is a blanket no fault needed notice that you require possession of your property. If is not you *may* require possession but not if they've been good tenants!

But if you have good communication between the landlord and tenant why do you need the Sword? I thought your justification was that you may not be able to satisfactorily serve the notice later on, how can you have that AND good communication?

BobProperty wrote:

I'm not, so what's wrong with issuing it at month 0 instead of month 4? I can still issue it at month 4 and not enforce it too, so what's your point?

The point is at month0 day1 is is much easier for you to deceive the tenant on the meaning of the S21. You are there to say the likes of "if I had no problems with them (the tenant(s)) I would be happy for them to stay on." The tenant has also just been given a lot of paperwork and so are unlikely to even remember the S21 is even served as we have seen form recent examples here.

But if you do issue a S21 at month 4 when you have no intention of asking the tenant to leave, you just want to cheat them in their notice, then is is still imposing the Sword of Damocles and is still just as objectionable. It's just you've less chance of hoodwinking the tenant.

BobProperty wrote:

I suggest that a court would take the landlord's actions as a sign of their intentions, as that will be all they can go on. No action would indicate that they do not intend to enforce the S21, court action for possession would indicate the opposite. I can see what people are arguing on here, and it would, I think, be possible to make a case out that if a landlord doesn't enforce an S21 within a reasonable time (that's so English Law isn't it?) that it should be considered that the S21 has lapsed. But, as I have already pointed out, there is currently no time limit on S21s.

I think the landlord would be on much safer ground with a recent S21 and proof of postage than an old S21 signed at the start of the tenancy if the landlord hasn't taken steps to enforce the S21 within a reasonable time. If the tenant stated the landlord had given them verbal permission to remain if they didn't breach the agreement then I think the court would believe the tenant due the the landlord having let the tenant remain for so long and the tenant would win.

So your method, although duping the tenant and exploiting a loophole, is fine on paper but in practise a clued up tenant could easily put a good case that you have invalidated the S21 by saying they could remain and allowing them to do so. I think we all know the law intends that a tenant should have two months notice from the landlord. It is up to tenants who want this right to make sure they know what they are getting.

Tiglet

littlesaint wrote:

...
They then put "Date of Expiry: From 10th March 2007"

Then it is signed (it doesn't state who has signed it and the signature is not the same as the one the contract, nor does the signiture resemble my landlady's name). It then puts the letting agents address.

If the signature is not your landlady's, it's likely that she's authorised the agents to sign documents on her behalf. Since she's not in the country, that would seem pretty likely. In that case, they may be prepared to sign something to withdraw the s21 notice and allow you to stay until they hear from the landlady.

To be honest, I think it's unlikely that they'll do that, but it's another point in your favour. If you ask your landlady to confirm that she still wants possession, then the agents could give you that confirmation on her behalf. If they don't do it, then you can reasonably assume that she doesn't. Again, I would get proper advice before assuming that this is the case.

Another point: Would your rent be due on March 10th? A Section 21 notice has to expire on a date that rent is due. If not, then it isn't valid, and they will have to serve another notice. I don't suppose they would make a mistake like that, but it's worth checking.