Section 21 (1)(b) help!

tbs624

BitterAndTwisted wrote: »

Just because an agent acts on behalf of a landlord does not mean that their interests always coincide. The agent's only interest is in preserving their own fee-income, and if they can manage to persuade the landlord to issue you with a S21 Notice and get shot of you, this opens the door for them to be able to source another tenant and charge the landlord a tenant-finding-fee, plus all the mark-up on referencing them.

However OP, if you are a reliable T no LL is going to want to risk a potential void plus the possibility that a new T may turn out to be wrong 'un.

BitterAndTwisted wrote: »

When you automatically go onto a periodic tenancy the agent earns nothing from you or the landlord.

..except for the continued commission on the tenancy:).

One of the reasons that LAs like to push for Ts to be signed up for a further Fixed Term is so that they "know" that they will have that commission for x months certain, as well as being able to slap the LL and the T for the respective "renewals fee"

Some LAs will of course still try it on with a "come in to the office and sign for your statutory periodic agreeement and give us 50 quid"........

OP - talk direct to the LL. It can be misleading when posters simply refer to a "right" to continue occupancy under a stat periodic because although the Housing Act 1988 allows for one to arise automatically where the T remains in situ and has not signed for a new FT, the LL can still subsequently say " if you don't sign up for a further FT I am prepared to evict" and then act on an appropriately served S21 (although see my first comment above) Ultimately its down to negotiation between you and the LL.
.

franklee

This serving of the S21 on a perfectly good tenant when the LL doesn't as yet want his property back (sometimes called Sword of Damocles) is a pain.

If you remain on a periodic tenancy with a valid S21 in place the LL can apply for a possession order to evict you anytime after the S21 notice period is over. This process takes at least a few weeks and even though you are legally allowed to stay some landlords would hold it against you if it gets mentioned on your references.

Without the S21 you could remain on a periodic tenancy safe in the knowledge you will get a minimum two months notice via S21 in future should the LL want you to leave. However if the S21 has been served that was your notice and you aren't entitled to any more.

There is an argument that serving the S21 at the same time as offering a renewal voids the S21 as there is a conflict between the two actions. However I would only use that as a last resort as there isn't consensus if it would work. If the landlord seeks possession using the S21 notice the tenant is usually liable for the LL's court fees. The above argument should at least be useful to demonstrate to court why you didn't move as the S21 asked to stave off having to pay the LL's costs. It's also useful to demonstrate to your next LL that you were reasonable in staying past the S21 notice date. So keep the paperwork.

The sure fire way to void the S21 is to sign up for a new fixed term with the downside you pay the agent a fee.

The other thing you could do if you want to stay on a periodic tenancy is to ask the LL to withdraw the S21 in writing but I doubt he would do that.

franklee

tbs624 wrote: »

However OP, if you are a reliable T no LL is going to want to risk a potential void plus the possibility that a new T may turn out to be wrong 'un.

I agree. However there can be reasons why a LL would evict a good tenant, e.g. they can't agree on a rent rise, or in these days of accidental landlords the landlord may want to sell the property. That's the problem with these precautionary S21 notices, even a good tenant can never be sure if the S21 will be acted on or not. A tenant who has had several precautionary notices, perhaps every six months at the end of each fixed term, will get used to ignoring them and perhaps get a surprise when eventually one is meant "for real".

suited-aces

If I understand correctly (a more knowledgeable poster can confirm), the offer of a new contract nullifies any previous S21s, regardless of whether or not you accept, so get the offer of a new contract in writing, but go on to periodic anyway, so you're back to the scenario where you need 2 months notice at least.

franklee

suited-aces wrote: »

If I understand correctly (a more knowledgeable poster can confirm), the offer of a new contract nullifies any previous S21s, regardless of whether or not you accept, so get the offer of a new contract in writing, but go on to periodic anyway, so you're back to the scenario where you need 2 months notice at least.

I've seen similar in an old document that used to be on Painsmith's website a few years ago but that section was removed when the website was redone. Extract:

"Termination Of An Assured Shorthold Tenancy" by Marveen Smith. Page 5:

"8.If the landlord agrees to the tenant extending the tenancy for say a week or ten days after the section 21 Notice expires then the Notice will be void and would have to be served again. Never agree an extension for a short period of time without the consent of the landlord, and warning him his Notice would be void.

9.If the landlord or agent writes offering to extend the tenancy any Section 21 Notice served prior to the letter or at the same time as the letter will be technically void, as there is a conflict between the two actions."

However at least some if not all landlords on here dispute this saying that the S21 is indestructible short of a new fixed term being signed and even the landlord withdrawing the S21 in writing would not void it.

There is a concept of estoppel, basically one party should be able to rely on the statements made by the other. If the landlord says he won't act on the S21 or offers a new tenancy and the tenant relies on this then I think the landlord should be estopped from actioning the S21. However it's a tricky one to argue and prove and many posters here don't agree it would work for a S21 at all (they seem to think a landlord could write he won't action the S21 one day and action it the next without problem). So the argument is useful as a last resort only as if nothing else it would bump any possession claim from accelerated possession to one needing a hearing causing delay.

Despite some agents/landlords wanting it both ways I hardly think it right to be negotiating a new tenancy at the same time as the S21 notice period is ticking away. After all the landlord hardly expects the tenant to be arranging their onward move if he isn't being asked to leave. Yet should negotiations for the new tenancy break down the tenant has to move fast or risk being taken to court for possession with perhaps little notice.

Then we have landlords complaining when a tenant overstays a S21 notice.

Perhaps if S21s weren't served so often as a precaution they would be taken more seriously? It would be so much easier if S21s were served only once the landlord has decided he really wants possession.

jjlandlord

Agreeing that the tenant can stay for an indefinite length of time might prevent landlord from getting a possession order, as often mentioned by solicitors, but I never heard a landlord complaining that this had happened on public forums.
However, I am aware of anecdotal cases whereby a landlord agreeing that the tenant could stay for some time after the s.21 notice's expiry resulted in the court refusing to award costs to the landlord, though possession was granted.

But I cannot understand how proposing a new tenancy could invalidate a s.21. 'offering'/'proposing' is not 'agreeing'. Estoppel would not have any bearing as they'd be no agreement.

We must clearly differentiate between cases of 'agreements' and cases of 'proposals' (which should be clearly 'subject to contract' for further protection).

If the landlord agrees to the tenant extending the tenancy for say a week or ten days after the section 21 Notice expires then the Notice will be void

The wording is badly chosen as a s.21 notice's expiry does not end the tenancy, and a tenancy cannot be 'extended'.
So, does the author mean 'granting a new tenancy', or does he mean 'telling T that he may stay for some time'?

Interestingly Tessa Shepperson in one of her online, pay-for, publication is worried about the opposite case: Ie. she is of the opinion that allowing T to stay for a fixed short time is probably be OK, but that allowing T to stay for an indefinite duration is not.
Probably because allowing an indefinite duration can likely imply that possession is no longer required.


Based on the above, it seems probable that the above quoted document was removed because it was inaccurate.

jjlandlord

franklee wrote: »

Perhaps if S21s weren't served so often as a precaution they would be taken more seriously? It would be so much easier if S21s were served only once the landlord has decided he really wants possession.

I agree.
Certainly, s.21 is intended for when LL actually requires possession. However, the drafting and especially the fact that the notice does not end the tenancy has created the current situation.

Personally I think that, at the very least, there should be a limited, relatively short, timeframe to start court proceedings after a s.21 notice's expiry. E.g. if LL does not take action within, say, 1-3 months after expiry then he must serve a new notice.

It_can_get_better

jjlandlord wrote: »

I agree.
Certainly, s.21 is intended for when LL actual requires possession. However, the drafting and especially the fact that the notice does not end the tenancy has created the current situation.

Personally I think that, at the very least, there should be a limited, relatively short, timeframe to start court proceedings after a s.21 notice's expiry. E.g. if LL does not take action within, say, 1-3 months after expiry then he must serve a new notice.

Agree with that. I think it should go further and once a s21 is issued the landlord is bound by it, and can't then offer the tenant a new contract. It may help curb the practice of the routine issuing of s21 when the landlord doesn't require possession.

I do feel that it's letting agencies who have fueled this practice. Any s21 should have to come direct from the landlord.

franklee

jjlandlord wrote: »

Interestingly Tessa Shepperson in one of her online, pay-for, publication is worried about the opposite case: Ie. she is of the opinion that allowing T to stay for a fixed short time is probably be OK, but that allowing T to stay for an indefinite duration is not. Probably because allowing an indefinite duration can likely imply that possession is no longer required.

Agreeing an indefinite stay is granting more than than days but it's hardly the opposite case as both are agreeing to the tenant staying. Still it's good to hear that Tessa agrees the landlord's actions can void the S21 which is more than the views that hold the S21 cannot be voided at all. Can we have a small quote from Tessa do you think? Does she mention any case law to support her view?

jjlandlord wrote: »

Based on the above, it seems probable that the reason the above quoted document was removed because it was inaccurate.

There was a whole section of documents (a dozen or so) linked to from one page and the whole lot went when the website had a revamp. So I do not see you can draw any conclusion about that particular document from it's removal. However it was written at the time Marveen used to appear on money box live as a tenancy expert so I've no reason to doubt it. However I suppose case law could have come down the other way in intervening years - except that as far as I know no one has been able to point to any.

I'm guessing the usual legal advice is to make sure the S21 is as sound as possible so if in doubt serve again to avoid wasting time waiting for a case that might fail. After all the initial two months notice is only a part of the overall time taken to evict and the landlord wants to get his property back as quickly and cheaply as possible.

jjlandlord wrote: »

I agree. Certainly, s.21 is intended for when LL actually requires possession. However, the drafting and especially the fact that the notice does not end the tenancy has created the current situation.

Personally I think that, at the very least, there should be a limited, relatively short, timeframe to start court proceedings after a s.21 notice's expiry. E.g. if LL does not take action within, say, 1-3 months after expiry then he must serve a new notice.

Certainly it would be nice to have the loophole closed. However with your proposal what would stop the landlord serving notice every three months thus keeping the tenant permanently with a S21 whose notice period has expired or is about to expire? If you put in a lock out such that the notice can't be served again right away then you penalise the fair landlord who had made a genuine mistake in serving the notice and needs to serve another right away.

jjlandlord

franklee wrote: »

Agreeing an indefinite stay is granting more than than days but it's hardly the opposite case as both are agreeing to the tenant staying.

Not really, as per my comment.

franklee wrote: »

Still it's good to hear that Tessa agrees the landlord's actions can void the S21 which is more than the views that hold the S21 cannot be voided at all. Can we have a small quote from Tessa do you think? Does she mention any case law to support her view?

Her view seems that some actions by the landlord may be risky. As mentioned, she is not exactly definitive, and I'm not aware of any case law.
So it might depend on the mood of the court and of the exact wording used by the landlord when agreeing not to start proceedings immediately.

franklee wrote: »

However it was written at the time Marveen used to appear on money box live as a tenancy expert so I've no reason to doubt it.

Ah if that was on TV, then obviously it's full-proof

franklee wrote: »

However with your proposal what would stop the landlord serving notice every three months thus keeping the tenant permanently with a S21 whose notice period has expired or is about to expire?

There must be a balance.
If landlord cannot freely serve notice, then basically ASTs should be abolished...