Section 21

BobProperty

prudryden wrote:

.....It was pointed out to me by my agents that one of the potential problems in giving an order to vacate at the same time as you are given a contract to let is that a judge may rule arbitrarily that it constitutes a sham. Why tell me you want me to stay and leave at the same time?
.......

But you're only physically "giving an order to vacate at the same time", you are not saying "you can move in but I want you out on the same day", you are giving them a tenancy for at least 6 months and saying I am giving you notice that I may enforce at a later date to end the tenancy.

Guy_Montag

It was pointed out to me by my agents that one of the potential problems in giving an order to vacate at the same time as you are given a contract to let is that a judge may rule arbitrarily that it constitutes a sham. Why tell me you want me to stay and leave at the same time?

While I was in their office they showed me a legal letting course booklet. They said they would send me the relevant pages with case histories. I am waiting breathlessly for it to arrive.

I wondered about that, it strikes me as the sort of thing that courts take a dim view of. You're not quite putting people under duress to sign the eviction notice, but you're not far off it. Especially if they are signing the tenancy agreement the day they move in.

BobProperty

Guy_Montag wrote:

I wondered about that, it strikes me as the sort of thing that courts take a dim view of. You're not quite putting people under duress to sign the eviction notice, but you're not far off it. Especially if they are signing the tenancy agreement the day they move in.

Given that you are doing both at the same time, can you also argue that you are pressuring them into signing the tenancy agreement?

prudryden

BobProperty wrote:

But you're only physically "giving an order to vacate at the same time", you are not saying "you can move in but I want you out on the same day", you are giving them a tenancy for at least 6 months and saying I am giving you notice that I may enforce at a later date to end the tenancy.

Hopefully, the agent will send me copies of the pages of this booklet, and just didn't erase it from her mind when I left. I did see some court case references, but I didn't read them at the time. So, I will let you know when I get them.

I can understand your point, but I probably could understand a judge asking why rent to someone if you are immediately going to warn them that they may be asked to leave without reason at some point after a six month break clause in a 12mo AST.

The unknown really is how a judge will rule on any given day. They have enormous powes of discretion at the County Court level.

thesaint

Just did a bit of research on landlordzone .co.uk To 'tip' the balance what you do is send the S21 from two separate post offices with proof of posting from both. When you get to court, they would have to convince a judge that two letters from two different post offices were not delivered.

I personally will do this if needed, I don't like the 'serve section 21 at start' route, I suppose it's all down to personal preference. I don't like the inference that a tenant has to 'sign it or else'.

jamesd

BobProperty wrote:

you are giving them a tenancy for at least 6 months and saying I am giving you notice that I may enforce at a later date to end the tenancy.

Nope. You're giving them a notice saying that you are ending the tenancy. Nothing speculative about it, the AST is going to end on the specified date.

What form of tenancy do you think the people have after you've terminated their AST and the initial six months have passed?

franklee

clutton wrote:

""accidentally evicting a tenant you'd like to keep? "" - you just can't "accidentally" evict someone !!

You can. You serve a S21 notice to all your tenants at the begging of the tenancy to expire at the end of the fixed term. A tenant that knows what the S21 means, knows they should leave when the S21 expires. So they leave at the end of the fixed term. You may have intended to keep them, they may have wanted to stay, but you forgot to tell them they could stay. That's what I meant. Maybe you won't forget. But then you did say without the S21 at the start you may forget to evict the bad tenants...

franklee

BobProperty wrote:

It's one of the few times and ways the landlord can get an edge in the situation. I used to tell the tenant that it was just a legal necessity to cover me (the landlord) if I needed to get them out at a later date, but obviously it could not start to take affect until the initial tenancy period was over anyway.

Thanks Bob, I appreciate your telling us how you do it. But isn't that a bit naughty, playing down what the S21 means. It really means the tenant should leave when the notice expires doesn't it? Or have I got that wrong?

Also I'd still be interested to hear when and how you let the tenant know that they can stay on, if you were happy to let them stay that is. I would ring you up about month four and say "Bob, I like your property, but you've given me this S21 that expires in two months time, can I stay after that or not?". What would you offer and what would that mean for the S21?

BobProperty wrote:

Given that you are doing both at the same time, can you also argue that you are pressuring them into signing the tenancy agreement?

Not if they have seen the agreement before hand. But what would you do if the tenant refused to sign the S21?

prudryden

I really would like to see a case history on this subject.

I think a judge would be bemused. He's thinking to himself. This landlord says I like you and I want you to stay for at least a year (12mo AST). But, just in case I should change my mind, here is a notice to quit which means you have to get out at the end of the 6mo break clause, but if you don't hear from me, then I changed my mind again and you can stay for another two months, and so on and so on.

The judge would probably need a drink after that.

Tiglet

thesaint wrote:

You wouldn't be at square one would you, if the law only allowed for a correct serving to be deemed correct if it contained a signature of receipt then no one would get evicted surely?

When I did this, my solicitor sent two copies of the Section 21 notice - one by recorded delivery, the other by first class.

The recorded delivery one was never collected, and the first class one wasn't returned. The solicitor reckoned that the court would be satisfied with that. In practice, the tenant didn't dispute it.

As BobProperty pointed out, the court has to decide what happened on the balance of probabilities. By the time the matter reaches the courts, though, the tenant will have received several other letters in connection with the case and would have had ample opportunity to cry foul if they genuinely hadn't received the notice.