Section 21

Tiglet

prudryden wrote:

Question Tig - The LL, as you say, has instructed the LA to act as MA. In a sense, is this not similar to a Power of Attorney? If it is, then the LA can take the decision for the LL, which is probably what she expects.

I believe the MA are hedging their bets on this, hoping to get confirmation from the LL, but, will in the end, let the OP stay and use their POA.

I've been reading my agents' terms of business, and the way they're written implies that their job is to let (and possibly manage) the property, as opposed to managing a single tenancy. That would imply that the agents could let it out again if the tenants leave, withou needing specific instructions from the LL.

I suppose it's obvious, really, that a person who is abroad wants their property rented out as much as possible, so they could reasonably assume that the LL wants to continue letting the property until they say otherwise.

As for Power of Attorney, I don't know how far this extends. I had a bit of a row with my agents when I thought they'd abused their authority by signing me up for an insurance policy that I didn't want. When I queried it, they told me it had been sent out by mistake, and that it was illegal for an agency to sign anything without the LL's permission, regardless of any general authority they had been given.

I think the agents will do whatever suits them. If they can use a POA, they will do that because it will give them a guarantee of another 6 or 12 months' fees. If not, I'm sure they'll be happy to let the tenants stay, possibly allowing the s21 to be invalidated by default.

franklee

thesaint wrote:

The only way around it would be to have 2 S21's running concurrently, is this allowed?

Well it's just speculation but I'd guess so. As I said I really don't know the details. The summary is here:

http://www.lawcom.gov.uk/docs/lc297_summary.pdf

See page 6, section 1.34:

"Under the principle of "use it or lose it", if the possession notice is not followed up by actual proceedings within six months, the notice lapses. (The period is four months where possession is sought on the notice-only ground.) Contract-holders should not be kept in a state of uncertainty for unreasonably long periods."

franklee

prudryden wrote:

If I lease a car for a certain period of time, I am expected to bring it back on the day the contract finishes. Probably a poor example, but trying to answer your question.

But you can of course keep it longer, just as clutton said littlesaint can stay on, but there will be consequences to doing that which you may well not want

Tiglet wrote:

But the problem in littlesaint's case is not that she didn't realise what the Section 21 notice meant. Even if she had been perfectly aware of it from day one, the problem is that the landlady has disappeared, leaving both her and the agents in the dark as to what she wants to do.

But the law allows for landladys to disappear by going automatically onto a periodic tenancy. Which would be fine without the S21. The problem here is that it's fashionable to issue S21 notices routinely to all tenants at the start of the tenancy even when the landlord doesn't want possession. If S21's were only served when the landlord wants possession, as was intended, then littlesaint would know to leave.

Tiglet wrote:

That's why I suggested asking the agents to get the landlady to confirm that she wants the property back, and assuming that if she doesn't reply then she doesn't want to enforce the notice. Unless the landlady turns up, littlesaint isn't going to get written permission to stay, and proving that the landlady wasn't taking an interest in things will help to undermine the s21 notice should she end up in court.

I think it was up to the agent to get clear exactly what the landlady wanted when taking her instruction. For a landlord in this situation I think the agent should be able to sign the relevant document on behalf of the landlord. If they do not have permission to do so then they should tell littlesaint. The agent should sort this one way or the other, it should be the agent's neck on the line by giving permission to stay, not littlesaint's in making that assumption as it is the agent who is meant to be fullly managing the property.

Tiglet wrote:

We seem to have been discussing things on the assumption that landlords know what they are doing and tenants don't. In this case, it seems that it's the landlady who doesn't know what's happening. She's signed up for a "full management service" from an agency and thinks that she can just leave the country and everything will take care of itself. Instead, she's left everybody in a mess, and she could end up losing perfectly good tenants as a result.

I think we've seen evidence of all parties tenants, agents and landlords not knowing the full implications of what they are doing. In this case I think the agent is at fault more then the landlady but it all depends on why the S21 was served. Does this agent issue S21s to all tenants at the start of the tenancy? If so then the landlady probably doesn't even know it's been served. littlesaint, that's something to ask the agent.

prudryden

I haven't received the case law papers from my agents yet. I will remind them on Monday.

If you remember, they have stated substantially to me that it is not a good idea to issue an s21 at the beginning of a tenancy. You should only issue it when you definitely want to retake possession, either at month 6 or any month after that until the 12mo contract term expires. This works if you have a 6mo break clause. They started to show me some legal seminar booklets, which seemed to have some case histories in it. Unfortunately, I was in a rush, so they said they would send me copies of the relevant pages.

thesaint

Thanks for the link Franklee
http://www.lawcom.gov.uk/docs/lc297_summary.pdf

It seems like the Sword of Damocles will be removed then.


One thing that worries me is this though.

Leaving the agreement
1.23 Currently, if a joint tenant serves a tenant’s notice to quit, the entire tenancy
comes to an end. We recommend that a joint contract-holder should be entitled to
end only his or her interest in the contract. Where doing so would result in under-occupation
of the property, a landlord has a time limited ground for possession,
but must provide the contract-holder with suitable alternative accommodation. To
end the contract itself, all joint contract-holders would have to agree.

I hope it means that although one party can leave, the landlord would be able to collect full rent from the tenant that stays.
I imagine tenants signing for a tenancy and one leaving(pre-planned) and the other getting the property half price. I don't have empty properties on stand by to move them into.

franklee

thesaint wrote:

I hope it means that although one party can leave, the landlord would be able to collect full rent from the tenant that stays.
I imagine tenants signing for a tenancy and one leaving(pre-planned) and the other getting the property half price. I don't have empty properties on stand by to move them into.

Yes, I thought the same, it's bizarre. Still like they say, the devil is in the detail, which we don't have. Neither do I know how the legislation is progressing, if at all. A a point to watch.

BobProperty

franklee wrote:

Right, if it's been academic/pedantic lets try this question which is for all landlords and agents that operate the "Sword of Damocles" that is all those who routinely issue S21 notices to all tenants at the start of the tenancy (so that means at least BobProperty, clutton and RosySparkle):

Given littlesaint's posts on this thread, Is it OK for littlesaint to stay put without written permission to do so?

I notice none of you have commented on this one point thus far, so now is the time to speak up.......
I'll take any silence to mean that it isn't!

1. I'm no longer a landlord.
2. You won't get an answer to littlesaint's situation if the LA/landlord knows what they are doing because, as you have pointed out, by acknowledging the continuance of the tenancy you are voiding the S21. I prefer the "ignorance is bliss" theory though.
3. I do have life outside this forum, and have been busy this weekend with football and work, thank you.

littlesaint

Feeling more positive after going to the letting agents this morning.

I asked the letting agent if there had been any progress with the landlady, and she said they still haven't managed to track her down. Then she said, they just wanted to prepare the paperwork for the new tenancy agreement, it wasn't an ideal situation but it wasn't a problem.

Then I told her: "What we are worried about is this (show her s21), from what I've heard, this means that the landlady could regain posession of the flat on 10th of March and we will have to move out."
The letting agent said: "That's just to avoid the squatter problem. You won't have to move out on the 10th of March, you would get two months notice. And that's just the worst case scenario, if she doesn't want to continue letting the flat."
So I said: "You mean that if she comes back tomorrow wanting the flat back, we will have until the 13th May?"
"No", she corrected me. "It's 12th Feb today so you'd have until 13th April."
"So we don't have to start looking for alternative accomodation?"
She said we didn't.

Then I asked her about what happens if the landlady doesn't come back before the 10th March. She said we would have to wait for her to come back before getting the new tenancy agreement. If she agreed to a new tenancy, it would be backdated to 10th March. If she wanted us to move out we'd get two months notice.

I told her that this was reassuring and that I would email her later asking her to confirm these arrangements. I might send a letter backing this up too.

Any thoughts about this?

Thanks for all your suggestions.

franklee

Well done littlesaint, it sounds hopeful but I'd still have concerns:

littlesaint wrote:

Then I told her: "What we are worried about is this (show her s21), from what I've heard, this means that the landlady could regain posession of the flat on 10th of March and we will have to move out." The letting agent said: "That's just to avoid the squatter problem. You won't have to move out on the 10th of March, you would get two months notice. And that's just the worst case scenario, if she doesn't want to continue letting the flat."

Sorry but this is rubbish. The S21 IS your notice. It is an unequivocal notice that your landlord requires possession on March 10th. No one is saying you have to move out on March 10th but there may be bad consequences if you do not. To remove this issue all you need is a letter from the agent revoking the S21. They have already skirted around doing this verbally so there shouldn't be any problem putting it in writing.

littlesaint wrote:

Then I asked her about what happens if the landlady doesn't come back before the 10th March. She said we would have to wait for her to come back before getting the new tenancy agreement. If she agreed to a new tenancy, it would be backdated to 10th March. If she wanted us to move out we'd get two months notice.

No. No and No. The existing S21 is your notice. Please don't let them fob you off with this.

littlesaint wrote:

I told her that this was reassuring and that I would email her later asking her to confirm these arrangements. I might send a letter backing this up too.

Any thoughts about this?

Get it confirmed in writing! If you can do this then everything is fine otherwise you are no better off. Do not trust an agent to remember this conversation next week never mind next month when you need it. Whether this agent is incompetent or deliberately misleading you doesn't matter. Once the S21 is revoked in writing you can relax but not until then.

franklee

BobProperty wrote:

1. I'm no longer a landlord.
2. You won't get an answer to littlesaint's situation if the LA/landlord knows what they are doing because, as you have pointed out, by acknowledging the continuance of the tenancy you are voiding the S21. I prefer the "ignorance is bliss" theory though.
3. I do have life outside this forum, and have been busy this weekend with football and work, thank you.

Thanks Bob.