S21 Can the landlord keep the deposit?

reecy_2

Hi, my friend has been served a 2 month notice from her LL as he wants to move back in. She quickly found a new place after 3 weeks of the notice being served, but now the LL is saying that she either needs to pay rent until the end of April - to fulfill HIS notice - or he will keep her deposit. Is this right?

Her 6 month contract officially ends in August.

BitterAndTwisted

If her six-month contract definitely ends in August the S21 Notice would have been invalid. She is legally obliged to pay the whole of the rent until the end of the fixed-term AST whether she lives in the property or not.

If the landlord is intent on retaining her deposit come what may he will in all likelihood succeed by arguing that the tenant did not formally give their own one month's notice coinciding with the rental period.

I think it's time to start negotiating hard with the landlord

Werdnal

Can you please confirm the exact date that the tenancy started and the date the fixed term ends? Is the tenancy in England/Wales?

Also, did the LL protect her deposit and give her the "prescribed information" from the deposit scheme used?

If she is still within the fixed term, and/or deposit protection was not complied with, then the S21 is in fact invalid and she does not need to go anywhere until the end of the tenancy.

However, if LL is intent on moving back in, and your friend has already found somewhere, then it may be just as well if she moves. However, she must remember that the S21 does not end the tenancy, even if legally and correctly issued. If she wants to leave before the 2 months or the end of the fixed term, LL is entltled to request rent until then.

In this case though, as B&T states, LL wants her out, friend has found somewhere, so time to negotiate. Advise the LL that tenant has complied with the S21, even though it is probably invalid and doesn't mean tenant had to leave. Now tenant has made arrangements to move, it would be to LLs advantage to let her go - otherwise she has a right to stay until August, and beyond (until LL applies to court for eviction notice).

DVardysShadow

BitterAndTwisted wrote: »

If the landlord is intent on retaining her deposit come what may he will in all likelihood succeed by arguing that the tenant did not formally give their own one month's notice coinciding with the rental period.

My reckoning is that the LL might succeed at the dispute resolution stage, but if the case is well argued, the tenant could and should win in the small claims court.

You are correct that the S21 is invalid. But as I see it, it is for the tenant to argue it is invalid if they wish to stay. If the tenant does not wish to argue this, then the S21 might well be upheld in court to the benefit of the tenant - although before the Assured term is up, it certainly should not be upheld to the benefit of the Landlord.

Effectively, the Landlord is trying to have his cake and eat it by issuing a s21 and expecting rent to the last moment. Courts seem to be averse to litigants who try to have it both ways - and if invited to do so, I think a court might declare that the tenancy was terminated by mutual agreement.

bris

I'm a bit confused, how long has she been living there, it's nearly 5 months till August, as he served the s21 3 weeks ago, did she move in then get served the notice? she can only have been in a very short time if it's a 6 month lease.
If that is the case I would be holding the LL to ransom, he can't just serve notice at the start of the tenancy, the tenant holds the aces here.

DVardysShadow

Thinking some more, is this a poorly drafted sword of Damocles s21, intended for the end of the 6 months assured term, but drafted to indicate 2 months notice from serving the notice?

GDB2222

I agree with bris that the OP does not make a great deal of sense. However, assuming the fixed term of the tenancy ended last August, there is nothing to stop the landlord from issuing a valid section 21 notice with 2 months to run. The section 21 notice is a notice to end the tenancy on a particular date. The tenant cannot then just move out with no notice before that date because he/she has found a new place to live, and will have to suffer the consequences if he/she does do that. That could be more severe than the missing rent, as there may be empty rates to pay on the property, etc.

jjlandlord

GDB2222 wrote: »

The section 21 notice is a notice to end the tenancy on a particular date.

Well, no it isn't.

GDB2222

jjlandlord wrote: »

Well, no it isn't.

If you reckon that you can sum it up better without going into unnecessary detail, be my guest.

In particular, please can you confirm whether you agree with my substantive point, namely that it does not give the tenant carte blanche to leave at any time during this two-month period?

DVardysShadow

GDB2222 wrote: »

If you reckon that you can sum it up better without going into unnecessary detail, be my guest.

In particular, please can you confirm whether you agree with my substantive point, namely that it does not give the tenant carte blanche to leave at any time during this two-month period?

I am guessing jjl is making the point that it is a notice requiring possession after a certain date rather than terminating the tenancy on a certain date.

I think that this particular s21 is somewhat moot as it appears to finish within the assured term. Tenant has missed a trick in that, having found another place, she should have presented the LL with the option of immediate termination by mutual agreement or continuing to the end of the assured term.

jjlandlord

DVardysShadow wrote: »

I am guessing jjl is making the point that it is a notice requiring possession after a certain date rather than terminating the tenancy on a certain date.

Indeed, a s.21 notice does not end anything. So it's not a question of summing it up but just to avoid wrong assumptions in what the notice does.

DVardysShadow wrote: »

I think that this particular s21 is somewhat moot as it appears to finish within the assured term.

Strictly this does not necessarily invalidate the notice, though I understand that many judges may view it as such.