Question on S21 timing

franklee

jjlandlord wrote: »

This has been discussed many times...
This might make a judge refuse to grant possession according to the opinion of well-known solicitors in the field, though I never came across any actual case (let alone case law).

Maybe the lack of cases is because a landlord wanting possession after having given a tenant written permission to remain would be advised to serve a new section 21. The wait for a court date can be quite long so it'd be a waste of time for the landlord to wait if he thinks the S21 might be iffy. The practical approach is to serve a new notice when he realises he wants possession. Besides a landlord would not go back on their written word and use a S21 they wrote to void would they Any verbal agreement is easier to go back on as the parties may "forget" or later disagree what was said.

Unless of course you've seen a case where a S21 had been successful when the landlord gave the tenant open ended written permission to remain after that S21 was served? If so can we have details please?

I've not seen cases either way so base my opinion of the likes of Paimsmith's or Tessa's websites and blogs although even amongst experts there can sometimes be differing opinions.

jjlandlord wrote: »

It should also be considered that while an agent can serve a s.21 notice, only the landlord can start court proceedings. I don't exactly understand how the pain of evicting a good tenant would help achieving "certainty of income", at the same time I should not assume that people always behave rationally.

I don't understand it either as I think having got a good tenant the landlord should be flexible enough to accommodate their preferences and keep them. However perhaps they think a tenant would cave rather than face the hassle of moving.

An example of offering a new fixed term but wanting to evict rather than have a periodic tenancy is here:
http://forums.moneysavingexpert.com/showpost.php?p=26348947&postcount=1
http://forums.moneysavingexpert.com/showpost.php?p=31823519&postcount=8
http://forums.moneysavingexpert.com/showpost.php?p=31951299&postcount=25

DVardysShadow

franklee wrote: »

Maybe the lack of cases is because a landlord wanting possession after having given a tenant written permission to remain would be advised to serve a new section 21. The wait for a court date can be quite long so it'd be a waste of time for the landlord to wait if he thinks the S21 might be iffy. The practical approach is to serve a new notice when he realises he wants possession. Besides a landlord would not go back on their written word and use a S21 they wrote to void would they Any verbal agreement is easier to go back on as the parties may "forget" or later disagree what was said.

Unless of course you've seen a case where a S21 had been successful when the landlord gave the tenant open ended written permission to remain after that S21 was served? If so can we have details please?

I agree. I cannot see a judge upholding a S21 which has been withdrawn in writing, to the point that I cannot see a LL trying it on. Perversely, it seems to me, those here who are of the opinion that the S21 cannot be revoked seem to be relying on a lack of case law arising from the perceived unlikelihood of a revoked S21 being upheld

jjlandlord

Let's not re-open the debate every single time... Especially if only to repeat personal opinions (I'm glad that you now seem to restrict your point to "open ended permissions to remain", though)

My point was that I think it's bad advice to say "oh that would void the notice" because there's no fact to support that assertion (at least no-one produced any)
It might prevent a landlord from getting possession if the tenant uses that as defense in court. It could also lead to possession being granted but not costs.
That's the only sure thing. And that's why e.g. Tessa advises landlords not to communicate as such with tenants: it creates a risk.

She obviously does not state that it will void the notice. So if you want to stick with Tessa's opinion, at least understand it correctly

those here who are of the opinion that the S21 cannot be revoked seem to be relying on a lack of case law arising from the perceived unlikelihood of a revoked S21 being upheld

Let's not forget the Housing Act 1988, which the basis for how s.21 notices operate.

jjlandlord

franklee wrote: »

An example of offering a new fixed term but wanting to evict rather than have a periodic tenancy is here:
http://forums.moneysavingexpert.com/showpost.php?p=26348947&postcount=1
http://forums.moneysavingexpert.com/showpost.php?p=31823519&postcount=8
http://forums.moneysavingexpert.com/showpost.php?p=31951299&postcount=25

These 3 threads are examples of the classic case of using a s.21 notice to pressure the tenant to sign a new fixed term tenancy.
None of them suggest that the landlord will actually evict if the tenant refuses.
Nothing to see here, move along...

DVardysShadow

jjlandlord wrote: »

Let's not re-open the debate every single time...


My point was that I think it's bad advice to say "oh that would void the notice" because there's no fact to support that assertion (at least no-one produced any)
It might prevent a landlord from getting possession if the tenant uses that as defense in court. It could also lead to possession being granted but not costs.
That's the only sure thing. And that's why e.g. Tessa advises landlords not to communicate as such with tenants: it creates a risk.

She obviously does not state that it will void the notice. So if you want to stick with Tessa's opinion, at least understand it correctly

DVardysShadow wrote: »

those here who are of the opinion that the S21 cannot be revoked seem to be relying on a lack of case law arising from the perceived unlikelihood of a revoked S21 being upheld

Let's not forget the Housing Act 1988, which the basis for how s.21 notices operate.

There are a lot of facets to the subject. Previous discussions have centred on whether a S21 notice is revoked by an offer of a tenancy under new terms. The point is plainly moot.

The point about the LL revoking his own S21 notice is a different one, but equally moot. It does not cut it to say that Housing Act 1988 addresses this point. It does not clarify one way or the other whether a LL may revoke his own S21 notice. So if it came to the point, it would be down to a judge to decide.

Or more likely to a solicitor advising his LL client intending to take his tenant to court for not complying with a revoked S21 notice to serve the notice again, because "you wouldn't want to get in a fight with your tenant about estoppel, which could go either way with a risk of costs against you and will take longer to resolve than serving a new S21 with costs in your favour if there is a hearing"

My thinking has moved on about this. These questions are moot and almost certain to remain moot because in every case where the Landlord may have thrown the S21 into doubt either by explicitly revoking the S21 or by acting in a way which conflicts with the S21 [eg offering to continue the tenancy on certain terms], a solicitor would be professionally bound to advise his client that reissuing the S21 will be both cheaper and quicker.

And more broadly, the S21 is a blunt instrument which the LL [and more to the point, the LA] is well advised to use only when needed - as part of an irrevocable move to shift the tenant - not as a posturing tool for negotiations.

jjlandlord

DVardysShadow wrote: »

Previous discussions have centred on whether a S21 notice is revoked by an offer of a tenancy under new terms. The point is plainly moot.

I agree, this one is obvious: It is not 'revoked'. And it is not in any way incompatible with the notice.

DVardysShadow wrote: »

revoked S21

What is a 'revoked s.21 notice'?

franklee

DVardysShadow wrote: »

My thinking has moved on about this. These questions are moot and almost certain to remain moot because in every case where the Landlord may have thrown the S21 into doubt either by explicitly revoking the S21 or by acting in a way which conflicts with the S21 [eg offering to continue the tenancy on certain terms], a solicitor would be professionally bound to advise his client that reissuing the S21 will be both cheaper and quicker.

Yes, below is a comment from Painsmith on their blog. They are advising caution as "it is possible to invalidate a section 21 when you did not intend to", so I suggest that a LL putting clearly in writing that he revokes the S21 and/or is allowing the tenant to remain on a periodic tenancy is a clearer step to invalidate the S21 than conducting negotiations:

http://blog.painsmith.co.uk/2010/08/23/after-a-section-21-notice-expires/

"PainSmith says:
28 March, 2011 at 11:23
When a section 21 has been issued it states that the landlord seeks possession. Therefore if negotiations take place with regards to the early release or release in general from the tenancy that should not affect the validity of the section 21. However, negotiations should be conducted carefully as it is possible to invalidate a section 21 when you did not intend to, for example agreeing to extend the occupation for some weeks after the section 21 has expired."

See also the end of the article itself:

"Therefore agents should not be overly focused on the section 21 notice and tenants staying on after it has expired and more on making sure they have not offered a new tenancy which might override the notice."

DVardysShadow wrote: »

And more broadly, the S21 is a blunt instrument which the LL [and more to the point, the LA] is well advised to use only when needed - as part of an irrevocable move to shift the tenant - not as a posturing tool for negotiations.

Agreed.

Perversely I think abuse of the S21 could make routine evictions longer not shorter. Shelter reported that most tenants move when the S21 asks. However if it was routine and generally acceptable to ignore the S21 date forcing the landlord to get a possession order the court waiting time would go up and it'd likely take the landlord more than two months to obtain.

Also if abuse of the S21 gets noticed there is the possibility that the law may be changed to restrict use of the S21. In recent years the deposit regulations affected the S21 and Shelter already run a campaign against retaliatory eviction wanting the S21 to be curtailed if a tenant has complained about disrepair.

DVardysShadow

jjlandlord wrote: »

] ... What is a 'revoked s.21 notice'?

Something which the likes of you are not supposed to know about.

DVardysShadow

franklee wrote: »

.... Perversely I think abuse of the S21 could make routine evictions longer not shorter. Shelter reported that most tenants move when the S21 asks. However if it was routine and generally acceptable to ignore the S21 date forcing the landlord to get a possession order the court waiting time would go up and it'd likely take the landlord more than two months to obtain.

Also if abuse of the S21 gets noticed there is the possibility that the law may be changed to restrict use of the S21. In recent years the deposit regulations affected the S21 and Shelter already run a campaign against retaliatory eviction wanting the S21 to be curtailed if a tenant has complained about disrepair.

Yes, we are seeing a mood swing on this forum over the last few months. People seem more ready than ever to say "A S21 notice is a notice seeking repossession, not a notice to quit".

Certainly, I believe that the S21 notice should not be valid unless it is served less than 3 months before the end of the assured term of a tenancy. There is no need for it until that time - and by that time a good LL or LA should know if they wish to keep a tenant.

Blanket issuing of S21's tends to give the impression to good tenants that they are regarded as scum while falling like water off a duck's back with the bad tenants. Which is more or less the opposite of the messages the LL would really want to deliver.

franklee

DVardysShadow wrote: »

Yes, we are seeing a mood swing on this forum over the last few months. People seem more ready than ever to say "A S21 notice is a notice seeking repossession, not a notice to quit".

Yes. Although it's always been clear a S21 isn't a notice to quit it was more often rammed home that the "done thing" is to move out at the end of the S21 notice period unless the tenant is wanting to be re-housed by the local authority. Indeed we have landlords (such as the recent comments in Tessa's blog) who get irate when a tenant overstays a S21 notice:

e.g. the comment from Damon which includes:
http://www.landlordlawblog.co.uk/2012/06/19/moving-out-after-service-of-a-section-notice/

" The problem now however would be that the tenant has been legally evicted, a fact that would have to be declared during the application for private rented accomodation, meaning they would almost certainly be declined. This is not therefore a simple decision, the tenant should be aware of teh longer term consequences of not moving out and waiting to be legally evicted.
...
By being proactive and seeking new accomodation prior to eviction they should still pass referencing. Wait to be evicted and the private rented sector will almost certainly become out of reach."

Which is IMO a fair point for a tenant to consider.

Also from Ben a comment about the Homeless Code of Guidance (I've bolded to highlight the relevant bits):

http://www.communities.gov.uk/publications/housing/homelessnesscode

"The Secretary of State considers that where a person applies for accommodation or assistance in obtaining accommodation, and:
(a) the person is an assured shorthold tenant who has received proper notice in accordance with s.21 of the Housing Act 1988;
(b) the housing authority is satisfied that the landlord intends to seek possession; and
(c) there would be no defence to an application for a possession order;
then it is unlikely to be reasonable for the applicant to continue to occupy the accommodation beyond the date given in the s.21 notice, unless the housing authority is taking steps to persuade the landlord to withdraw the notice or allow the tenant to continue to occupy the accommodation for a reasonable period to provide an opportunity for alternative accommodation to be found."

Yet some here have gone so far to say a tenant on a periodic tenancy is wrong to leave at the end of the S21 notice period if they haven't served their own notice. This perversely blocks a tenant moving "on time" as to serve their own notice they'd need to have secured their new accommodation in the first month of the two months notice period. Once they get past that any notice they serve couldn't end till at least a month after the S21 notice end date. I can only assume this is quite frustrating for the good landlords who serve the S21 when they mean it because the more tenants get used to ignoring the S21 dates the harder it will be for them to evict.

Certainly the only time I've been served an S21 (the landlord wished to sell) I moved out bang on the end date of the notice period without a second thought. I may not do that next time and be more willing to go for a date that suits me rather than the landlord.

DVardysShadow wrote: »

Blanket issuing of S21's tends to give the impression to good tenants that they are regarded as scum while falling like water off a duck's back with the bad tenants. Which is more or less the opposite of the messages the LL would really want to deliver.

Exactly. A welcome to your new home here's your notice doesn't get the tenancy off to a good start IMO. Once a tenant sees the landlord is exploiting loopholes it opens the door for the tenant to do the same.