Help with section 21 notice

krissy08

Hello all,

We moved for work reasons and let our house, the tenant has been in there since 2007, we have never put up the rent. We signed an assured short hold tenancy agreement in 2007, and again in 2008 which thereafter rolls on monthly. Each party can give a month's notice to terminate the contract.

Tenant started defaulting on rent 6 months ago, paying in bits and pieces, putting us under a lot of pressure.

We served a warning letter a about month ago stating that she had broken her contract any more defaults would mean action would be taken.
She defaulted again but finally paid up 10 days late.
We served a notice giving her 1 months notice, citing the fact that the house has now been put up for sale because we can't cope with the defaults. We received a letter from the council the next week stating she had reported some minor faults in the property and now the council which we have to fix beore the end of April..we don't mind this as we are planning to sell and they are very minor (shower head not working properly).

We contacted council to say, we have already served her a one month notice to quit. They say we can't that it has to be a section 8 or 21....what's the point of the one month get out clause in the contract she signed?

I have no letting agent, sacked after we found out they failed to take references, I have read up what sec. 21 is but can I write one myself? Any advice welcome

moromir

krissy08 wrote:

We contacted council to say, we have already served her a one month notice to quit. They say we can't that it has to be a section 8 or 21....what's the point of the one month get out clause in the contract she signed?

Basically absolutely no point at all because its unenforceable, where did you get this agreement from?

BitterAndTwisted

Legislation says that in order to secure an eviction under a Section 21 Notice you need to serve it giving the tenant AT LEAST two rental periods notice, so it really doesn't matter what unenforceable clauses you may have written into your contract.

Under the circs I would serve both a S21 and a S8, on ground 8, 10 and 11.

And yes, you can write both a S21 and a S8 Notice but it needs to have very specific wording. This where a competent letting-agent may have come in. Not the one you chose to appoint, naturally.

perhaps this might be the time to join a landlords association, so you could use their expertise and guidance to get shot of your deadbeat tenant.

princeofpounds

Yes you can write a section 21 yourself. It's not hard, there are lots of standard forms, but you need to understand how the dates work, the obligations to protect deposits, and all the other little things that make a notice valid. Assuming the fixed period is over it cannot be defended against, but it can be thrown out on a technicality.

Basically, whatever your contract says doesn't matter if it is not in accordance with the law. The law on tenancies is that you have a serve a valid S21 notice before you can apply to the court to terminate the tenancy (on S21 grounds, there are others like S8 etc).

princeofpounds

perhaps this might be the time to join a landlords association, so you could use their expertise and guidance to get shot of your deadbeat tenant.

Yes good point. It's probably the least expensive way to get the help you need, if you are comfortable with learning to manage the process yourself.

G_M

The post linked below has links to sample S21 S8 Notices as well as infomation on ending a tenancy.

as said, the clause in your AST is useless. Did you write it yourself......?

Ending/Renewing an AST (what happens when the Fixed Term ends?)(What is a Periodic Tenancy?)(How can a LL remove a tenant?)(How can a tenant end a tenancy?)

If the tenant owes equivelant to 2 months rent now, serve a S8. If they still owe that much when it reaches court, you'll get possession.

A S21 takes longer (2 + months notice required), but no reason is needed.

Whichever you use (better still serve both) you MUST get format, dates, service etc right or your Notice will fail in court.


As you seem a bit at sea in terms of understanding letting:

New Landlords (general information for new or prospective landlords)

krissy08

Much appreciated..I will spend time reading the links. Questions answered below.

The contract says
a break clause shall be in operation within this agreement and either party may end the tenancy by giving one months prior notice in writing. Without prejudice to the other rights and remedies of the landlord. the landlord may seek to lawfully terminate the tenancy by obtaining a court order if a notice is served under sec 21.

I contacted a lawyer who says he will charge 75 pounds to write a section 21 up for me...good idea? I can't really afford it. I simply extended the contract from the letting agents before.
The tenant has defaulted every month for the last 6 but is up to date at the moment after topping it up 2 weeks ago, so I can't serve a section 8.
With all this going on can I put the house on the market?, I am really worried about the future and have a valuation booked with one for tomorrow.

oh and the tenant did not pay a deposit, there is a council bond in place

BigAunty

Your tenant, as well as being entitled to proper notice, also has the right to quiet enjoyment of the property which means she does not have to suffer any visitors unless the landlord serves notice and receives permission. I would concentrate on increasing your knowledge of her rights and your responsibilities in the meantime and leave the selling to when she leaves the property - she does not have to cooperate with viewings and buyers tend to shun properties with tenants in place because of eviction issues.

G_M

krissy08 wrote: »

The contract says
a break clause shall be in operation within this agreement and either party may end the tenancy by giving one months prior notice in writing. Without prejudice to the other rights and remedies of the landlord. the landlord may seek to lawfully terminate the tenancy by obtaining a court order if a notice is served under sec 21.

Ah! You did not mention that this was a Break Clause!

But now you've got me stumped! I'm not sure how a LL implements a break clause. Yes, I believe it's valid, but yes, you still need a court possession order, for which you need to issue a S21 with 2 months notice.....:huh:

I contacted a lawyer who says he will charge 75 pounds to write a section 21 up for me...good idea?
If you are reasonably intelligent, and literate, and have the time, you should be able to research Notices and DIY. But do NOT do a rushed cobbled-together job. You currenly lack the knowledge and getting it wrong is easy..

I can't really afford it. I simply extended the contract from the letting agents before.
Yeah well, don't get us started on letting agents....
The tenant has defaulted every month for the last 6 but is up to date at the moment after topping it up 2 weeks ago, so I can't serve a section 8.
correct. Although annoying, if the tenant is basically paying the rent (albeit late) you are not in a dire situation.
With all this going on can I put the house on the market?, I am really worried about the future and have a valuation booked with one for tomorrow.:eek: Hope you have the tenant's agreement to this....

oh and the tenant did not pay a deposit, there is a council bond in place

Note to all - implementing a break clause... see above

G_M

With regard to claiming possession on the rent problem (only 2 weeks notice needed), this may help clarify the options:

(from: http://www.makeurmove.co.uk/page/Guidance-Notes-Section-8)

3. Rent Arrears - S8 proceedings


Landlords will most frequently want to recover possession of their property because the tenant is not paying the rent. In these circumstances he can rely on either or a combination of grounds 8, 10 and 11 (of Section 8):

1. Ground 8 - At the date section 8 notice is served the tenant must owe at least 2 months' rent (where the rent is paid monthly) or 8 weeks (if paid weekly or fortnightly). The rent in each case must be “lawfully due” in accordance with s48 of the Landlord and Tenant Act 1987. These arrears must still be owed at the date off the court hearing which means that if the tenant pays off part of the arrears before the hearing this ground can no longer be proved and relied upon. If a landlord has cited this ground alone in his section 8 notice then possession proceedings would have to be abandoned at this stage.
2. Ground 10 - The court may make an order for possession where any amount of rent was in arrears at the date the section 8 notice was served and when possession proceedings were started. It is therefore worth including this discretionary ground for possession in the section 8 notice along with ground 8 (if applicable) so that an order for possession may still be made even if the tenant pays off the arrears before the court hearing.
3. Ground 11 - This discretionary ground can be used even where there are no rent arrears at the time possession proceedings are started. All that is required is evidence that the tenant has been persistently late in making rent payments.

NB: Landlords should use as many grounds for possession as they can in order to maximise their chances of obtaining an order for possession.

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krissy08

Thanks so much everyone, I am up for the challenge;
Yes tenant knows we are selling to be honest I haven't had any indication they won't move...but the lady at the council said..".you can't just do that", when we thought we would notify them out of courtesy- we thought our break clause meant either of us could..
The template on bad apple produced this below for me, I am concerned because it doesn't mention actual dates anywhere on it. The tenant pays on the 3rd of every month and signed on the 3rd as well so monthly period of tenancy is from 3rd to the 2nd of every month. I work it out as 3rd of June she needs to be out by..




Housing Act 1988

Section 21(4)(a)

Assured Shorthold Tenancy: Notice Requiring Possession:

Periodic TenancyTo:


xxxxxxxxxxxx

Of:
36 Anystreet, Anytown, postcode, United Kingdom

From:
xxxxxxxxx

Of:
12 Anystreet Anytown xxxxxxxxx postcode

I/we give notice we that I/we require possession of the dwelling house know as xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, United Kingdom. After the end of the period of your tenancy which will next end after the expiration of 2 months from the service of this notice upon you.

Dated The Twentieth day of March, Two Thousand And Thirteen
Signed, either by, or on behalf of, the Landlord Date:_______________