Section 21

thesaint

As stated by others previously, I believe that it lessens the seriousness of an S21. Once it is routinely handed out tenants will simply ignore it.

When my tenant receives one 4 months into his tenancy, he will talk to his mate who received one at the start of his tenancy who tells him "Ignore it, your landlord forgot to do it at the start. I got one when I moved in to my flat 18 months ago".

Chaos ensues.

thesaint

Tiglet wrote:

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.

Thanks Tiglet, I also found another way, see post #76

littlesaint

Posted this on another thread, but Pru suggested I put this here. Hope you can help me.

In December, our letting agency wrote asking us to let them know in writing if we wanted to stay at our current rental property. Our contract is up on March 10 and we are obliged to give two months notice. So on January 10th we emailed them informing them that we wished to stay on. They told us that they would find out from the landlady whether this was possible.

After that, we heard nothing. About 10 days ago we chased, and the letting agent said they still hadn't heard back from her. Since then, we have left them to it, partly thinking that if we don't hear back they might let us stay on temporarily (as it happens I hope to move out in the summer though my flatmates plan to stay longer) or at least give us two months notice if the landlady wants to sell or whatever.

However, reading the post on Chop05's situation made me look at the notification letter again. It mentions section 21, which is apparently stated in clause 10 of our contract. I have recovered our s21 agreement, which says:


"A. On or after coming to the end of a fixed term assured shorthold tenancy, a court must make an order for possession if the landlord has given a notice in writing.

B. Where there are joint landlords at least one of them must give this notice.

C. The length of the notice must be at least two months, and the notice must be given before or on the day on which the fixed term comes to an end."

So far, we have received nothing from the landlady asking us to leave. The only thing we have received is the LA's letter asking if we want to renew. This suggests that now we can leave no earlier than 8th April assuming notice is served tomorrow. Am I right?

Tiglet

littlesaint wrote:

So far, we have received nothing from the landlady asking us to leave. The only thing we have received is the LA's letter asking if we want to renew. This suggests that now we can leave no earlier than 8th April assuming notice is served tomorrow. Am I right?

No. If you have already been given a section 21 notice, that is a notice requiring possession. That is the only notice the landlady needs to give. If that expires on 10th March, then that is the date she can start possession proceedings.

(I realise that the situation is more complex than that - I'll post some more shortly - but that's the short answer to that part of your question).

Tiglet

I've read the posts on the other thread, and it seems that the most important thing to get clear is what a section 21 notice means. It doesn't mean that you have to leave immediately as soon as it expires. It simply means that the landlady wants possession of the property after the end of the tenancy. It doesn't give her any right to force you to leave - only a bailiff appointed by a court can do that.

If the worst should happen and the landlady were to turn up on 9th March and demand her house back the following day, then you could theoretically wait for several months until the court has done its stuff, by which time you would probably be about ready to leave anyway. I'm not recommending that you do that, as it wouldn't suit your flatmates, and wouldn't look very good next time you want to rent somewhere. I'm just pointing out this option so you know that the worst case scenario is that you still have a roof over your heads no matter what.

What I would do first is to try to get the agency on your side. They are being left in a difficult position by the landlady, so they want the situation resolved as much as you do. They should be able to tell you what they will do in the absence of specific instructions from the landlady (not much, probably).

I would send a written request to the agency, asking whether their client still wants possession after 10th March. Tell them that, given the fact that the deadline is so close, you need an answer within the week and that, if you don't get one, you will assume that the landlady no longer requires possession of the property and is happy to allow a periodic tenancy to be formed. Make sure that the letter says that you have tried to get in touch with the landlady and that neither you nor they have had any response. With any luck, you will spur them into getting her to make up her mind, and you will have your answer (possibly by default) within the week.

If she does come back in March and wants the house back, you will the have a letter showing that she hasn't been in touch (either with you or with her agent), plus your letter from the agency asking whether you want a new tenancy. Both of these should ensure that she would have a very difficult time in court, should she choose to be silly about things. Instead, she would probably have to issue a new section 21 notice in March, expiring on 10th May at the earliest. (after 10th Feb you get an extra month because it has to expire on a day that your rent is due).

I would say that she's very unlikely to turn up out of the blue and want her house back - if she did, she'd have been in touch with the agency by now. It's more likely that she just thinks the agency will take care of everything and doesn't realise that she has to do something to agree a new tenancy.

BTW I'm not an expert on these things so please don't take what I've said as the best way to tackle things. This is clearly a complex situation, as you're not the only one living there, and it would be a good idea to speak to your local CAB about it. Housing advice charities are often very good as well.

Good luck!

jamesd

littlesaint wrote:

So far, we have received nothing from the landlady asking us to leave.

You received the section 21. It's a legal document that tells you formally that your tenancy is ending.

littlesaint wrote:

The only thing we have received is the LA's letter asking if we want to renew. This suggests that now we can leave no earlier than 8th April assuming notice is served tomorrow. Am I right?

You're wrong. You have already been given notice - that's what the section 21 was. You don't get two more months, you've already had notice from the time the section 21 was served.

After the tenancy ends, you're trespassing. Simple as that. In practice, if she does show up and wants the place, it'll probably take a month to evict you if you're still there and a judge will be annoyed that the landlady did a vanishing act and might give you a few weeks longer.

Tell the agency that you don't like it but you have to assume that the landlady was serious about the section 21 and you'd like to start looking at the properties they have becoming available in the weeks around March 10. You could try telling the agency that you will have to do this in a week if you want to give them more time to find her.

What's really happening? I assume that the landlady really does want you to stay on but is leaving everyone clueless and you stuck: you face becoming homeless if you don't act. Becoming homeless is too serious a threat to ignore.

This is the sort of screwed up situation that the automatic turning of an AST into a statutory periodic tenancy after the end of the fixed term normally avoids, a saving option which the landlady eliminated when she served the section 21.

franklee

thesaint wrote:

As stated by others previously, I believe that it lessens the seriousness of an S21. Once it is routinely handed out tenants will simply ignore it.

When my tenant receives one 4 months into his tenancy, he will talk to his mate who received one at the start of his tenancy who tells him "Ignore it, your landlord forgot to do it at the start. I got one when I moved in to my flat 18 months ago".

As a tenant I can assure you this is exactly my thinking. Originally there was no way I would ignore a S21, I had one served as my landlord wanted to sell and vacated on the correct day (getting a good reference and all my deposit back). BUT now I am not so sure. Many landlords are clearly trying to deprive tenants of their notice by issuing the S21 to all tenants at the start of the tenancy to expire at the end of the fixed term. This makes the notice worthless, when do I start packing, will I have to leave at the end of the fixed term or not? So I AM now VERY tempted to ignore the notice.

Yet when it looks like a tenant may stay past the S21 expiry date the gloves come off:

http://forums.moneysavingexpert.com/showpost.html?p=4249534&postcount=8

welshog8 wrote:

Don't panic just yet. If your landlord has sent you notice it means nothing. Once your notice has expired you can remain at the property until he evicts you. The eviction process is quite lengthy so this could buy you a minimum of 4 months to find somewhere else.

To which our favourite agent's response was:

http://forums.moneysavingexpert.com/showpost.html?p=4249865&postcount=9

rosysparkle wrote:

The above course of action will also ensure you won't get a good landlord's reference which will make it very difficult to rent again in the short term. Make sure you consider the consequences before you do this.

And a landlord:

http://forums.moneysavingexpert.com/showpost.html?p=4249866&postcount=10

silvercar wrote:

You have 2 months, so start looking for a new property and ask your landlord for a reference. Start looking on the websites and register with agents. You will feel more incontrol of the situation. 2 months is quite a long time (round here!) to find a rental property.

Being difficult will only help you in the short term and waiting for a knock on the door is not going to be much fun. Refusing to leave will leave you insecure, you know you need to move eventually, even if you wait for an eviction order; better to manage the situation yourself. If you want to stay in the same area don't give yourself the reputation of being a difficult tenant. Remember a reference is useful, particularly if you have little deposit.

I certainly would feel insecure! Not forgetting a tenant who does this will have to pay the landlords court fee as the tenant is in the "wrong" to ignore the S21.

So I have to be ready to move every six months, or if it's a periodic tenancy on the whim of a landlord OR feel insecure in my home, lose my references and pay the landlords court fee... Somebody please pass me a drink, I need it more than the judge!

franklee

jamesd wrote:

This is the sort of screwed up situation that the automatic turning of an AST into a statutory periodic tenancy after the end of the fixed term normally avoids, a saving option which the landlady eliminated when she served the section 21.

Routinely handing out an S21 to all tenants even when the landlord doesn't want possession on expiry is called the "Sword of Damocles" on landlord zone. Quite apt really...

BobProperty

jamesd wrote:

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.

OK then, is tenancy ended if I don't enforce the S21? I don't think so.

jamesd wrote:

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

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.

BobProperty

franklee wrote:

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...

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