Section 21

littlesaint

Tiglet wrote:

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.

Hmmm. Rent is due on the 11th, according to the contract.

BobProperty

BobProperty wrote:

The whole point about this is to cover the landlord from their point of view, to make it slightly easier to remove tenants they don't want. 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".

thesaint wrote:

I am not saying that my way is best, I am honestly here to learn a bit more. I just want to know the answer to the above quote.

All the landlord is doing is giving themselves the chance to remove the tenant at the end of the AST, not 2 months after you've got round to issuing an S21. That's all.

BobProperty

franklee wrote:

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!!!!

The way you word it, it sounds like the next thing the tenant will know about it is when the bailiffs call round to throw them out.

franklee wrote:

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.

and that's fair of course because they are just a landlord?

franklee wrote:

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!

Ask me to leave where? My office?

franklee wrote:

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!

So why are people so hung up on an S21 being issued on day 1? The way people are going on about this "exploitation" of tenants is OTT. Landlords have found a technicality in the rules and are using it. So what's new? Happens all the time in Law and Taxation.

franklee wrote:

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?

You've never had tenants that change their minds, start collecting pets at a rate of 1 per month, etc. etc.

franklee wrote:

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.

Again, you are saying poor tenant didn't understand what they were signing. If they don't understand it, surely they shouldn't sign it? Judging by the questions posted on here, I hardly think all landlords understand everything about tenancy contracts either. (My info may well be out of date for example).

franklee wrote:

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.

I'm not hoodwinking the tenant, all that is happening is that a document that can be issued at any time during a tenancy is being issued at the start. OK it's a quirk of the law but there's lots of them. If the tenant doesn't read the S21 or the tenancy agreement who's fault is that?

franklee wrote:

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.

Don't think it's been tested in court, but I await correction on that. I agree there is a case if the S21 was say for the end of a 6 month AST and the landlord doesn't press for possession for 2 years then you probably can make a case for it. (As I have already stated)

franklee wrote:

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.

Intention of the law and the actual text of the law and its interpretation often don't match. Otherwise we wouldn't be having this debate. It would be nice if both sides had to give 2 months notice. Courts didn't take months to hear cases. Deposits were large enough to cover 2 months rent plus damages. Housing Benefit paid out within a few weeks of the start of claim. There's a lot of things wrong with the current system and this is one. Maybe we should be campaigning for clarification of the law and have S21s expire after say 4 months of the date to quit, then both parties know where they stand.

Tiglet

littlesaint wrote:

Hmmm. Rent is due on the 11th, according to the contract.

I would get an expert opinion on this. If your rent is due on 11th March, then you are entitled to stay in the property for the whole of 10th March. The Section 21 notice is not at all clear who is entitled to occupy the property on 10th March, and it may be that it is incorrect for this reason. I wouldn't get your hopes up about this, but I would get some proper advice.

It's usual for the notice to say (abbreviated)
"I require possession of <address> after <date>", not
"expires from <date>".
That makes it clear that the landlord is seeking possession after the date given, not on it.

franklee

BobProperty wrote:

All the landlord is doing is giving themselves the chance to remove the tenant at the end of the AST, not 2 months after you've got round to issuing an S21. That's all.

Also important to note that this isn't just literally at the end of the fixed term it's also anytime during the following periodic tenancy.

BobProperty wrote:

The way you word it, it sounds like the next thing the tenant will know about it is when the bailiffs call round to throw them out.

No the next step is the court papers from the landlord applying for possession arriving on the tenants doormat for which the landlord will incur a court fee that the tenant, as the loser, will probably have to pay. Of course that may never happen so the tenant is left living with that insecurity. It could happen anytime soon or it may not happen for months or at all.

BobProperty wrote:

Franklee: So once periodic the tenant can just leave anytime without notice.

and that's fair of course because they are just a landlord?

I don't think anything about the Sword of Damocles is fair. But given you were questioning the fairness of the tenant being able to "walk out at the end of the AST anyway" which after all is just one one particular day I thought it strange that you would then impose the Sword of Damocles which allows the tenant to just leave on any day of the periodic tenancy. I guess it's just that not many tenants realise they can do that so I thought it worth pointing out.

BobProperty wrote:

Ask me to leave where? My office?

Oops, sorry I assumed you were doing the signing of the AST and S21 and checking in at the rental property (as clutton does) so that you can ask the tenant to sign the S21 *after* the tenancy has started. So I meant they could refuse to sign the S21 and ask you to leave the rental property. But if you are doing the signing of the AST and S21 at your office before hand then are you sure the tenancy has started before signing the S21? If so the tenant can refuse to sign the S21, take the rental keys and head off to take up occupation of the rental property...

BobProperty wrote:

Again, you are saying poor tenant didn't understand what they were signing. If they don't understand it, surely they shouldn't sign it?

Totally agree with you here. I wouldn't sign. If they didn't sign the S21 you would still have to let them have the tenancy.

BobProperty wrote:

I'm not hoodwinking the tenant, all that is happening is that a document that can be issued at any time during a tenancy is being issued at the start. OK it's a quirk of the law but there's lots of them. If the tenant doesn't read the S21 or the tenancy agreement who's fault is that?

But you don't just issue the S21 and say nothing about it. You tell them if you had no problems with them you would be happy for them to stay on. Others tell them they can stay if they don't breach the agreement, others that the S21 is needed for the insurance. All these are to mislead the tenant into not worrying about the notice and thinking they are secure if they behave which isn't true. The S21 applies regardless of the tenant's behaviour. In fact if you make it conditional on the tenant's behaviour then you make it invalid! These reassurances are designed to make the tenant not bother about finding out what the S21 actually is which is why I called it hoodwinking.

BobProperty wrote:

I agree there is a case if the S21 was say for the end of a 6 month AST and the landlord doesn't press for possession for 2 years then you probably can make a case for it.

Imagine living under the Sword of Damocles for two years! Although I am sure some tenants have. But I'd say a lot less than two years would be needed to make the case, especially if the tenant has written to the landlord to query their position and not received an answer but there has been other communication between landlord and tenant.

BobProperty wrote:

Intention of the law and the actual text of the law and its interpretation often don't match. Otherwise we wouldn't be having this debate. ...snip... There's a lot of things wrong with the current system and this is one. Maybe we should be campaigning for clarification of the law and have S21s expire after say 4 months of the date to quit, then both parties know where they stand.

Well I can agree with that! Although I would add educating tenants on this matter to the list. I know little about the proposed new legislation but I think they are looking at "if you don't use it you lose it" for this notice. I think they are looking at a six months valid time.

jamesd

littlesaint wrote:

"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.

The 60 days part is wrong. The law says "the last day of a period of the tenancy and not earlier than two months after the date the notice was given". That is, at least two whole monthly rent periods ending on a rent day.

This doesn't affect your situation in any way, just for information.

franklee

Tiglet wrote:

I would get an expert opinion on this. If your rent is due on 11th March, then you are entitled to stay in the property for the whole of 10th March. The Section 21 notice is not at all clear who is entitled to occupy the property on 10th March, and it may be that it is incorrect for this reason. I wouldn't get your hopes up about this, but I would get some proper advice.

It's usual for the notice to say (abbreviated)
"I require possession of <address> after <date>", not
"expires from <date>".
That makes it clear that the landlord is seeking possession after the date given, not on it.

I agree with you Tiglet. If the rent is due on the 11th then I would expect the last month of the fixed term to be 11th Feb to 10th March (is that correct littlesaint?). So an S21 expiring ON 10th March is too early. An S21 expiring AFTER 10th March would be fine. I do not know the status of an S21 expiring FROM 10th March but I guess it would be too short.

BobProperty

I won't quote myself and franklee otherwise our posts will be A4 sized.
Getting the tenant to sign an acknowledgement of receipt of the S21 at the start of the tenancy was recommended in a landlord's course I went on. It gives the landlord a very reliable case (should it come to it) that the S21 has been issued. It also cuts down the time scale to remove the tenant if the landlord finds out after a few months that the tenant is a "bad one". As I have already said, all that is happening here is that landlords are using a quirk of the law to gain an "edge" in this situation. I can see that it is unfair to the tenant to have this "Sword of Damocles" hanging over them but there's lots of unfair elements to the laws of tenancy. (e.g. 2 months notice by landlord, 1 months notice by tenant - held not to be unfair by a court)
As for the tenant signing the tenancy agreement but not the S21, my personal answer would be OK not too bothered as I'll still give them the S21 and there will be a witness present when the tenancy agreement is signed, so I'll have a witness to the issuing of the S21 anyway.
I think we both agree that in many cases both parties are not fully aware of all the rights and obligations that they have.
Now your last comment, "I think they are looking at a six months valid time." Six months from when? Date of issue or date of possession? Doesn't this just risk a 6 monthly rolling "Sword of Damocles"?

littlesaint

franklee wrote:

I agree with you Tiglet. If the rent is due on the 11th then I would expect the last month of the fixed term to be 11th Feb to 10th March (is that correct littlesaint?).

That is correct Franklee.

thesaint

BobProperty,
I can now see why it is preferable to issue the S21 at the start of the tenancy, but I believe that you were misleading us with your original answer.

I can answer that one. It's so you have remembered to issue it and, more importantly, you get the tenant to acknowledge they have received it. The theory being it is easier to do so at the start of the tenancy when the tenant wants the tenancy than 1, remembering the right time to do it later and 2, proving that you have served it correctly later.

As it transpires, it is simply so that you can negate the spirit of giving two months notice.
I believe the law is unfair to landlords(It takes far too long to remove bad tenants), but I think what will happen is that instead of simply closing the loophole, the powers that be will probably make a hash of the whole thing to swing the balance even more towards (bad)tenants.

The good ones will not be affected by the changes.

If I had some tenants that I were concerned about, I would now consider using your route, but I would explain the real reason what I was doing, and why I was doing it. I would then revoke it after 12/18 months if I was happy with them.