Notice Requiring Position Expiry?

ajayre

Position in title = Possession

Hello, we originally had a six month AST and then renewed with a 12 month AST from November 2011 to November 2012. We have not renewed so we are now in the periodic AST.

One of the documents we signed along with the 12 month renewal was titled "Notice Requiring Possession" and contains "I give you notice that I require possession, etc., etc..." along with a date of expiry "after 7th November 2012" which is the end date of the 12 month renewal.

This document is signed by the LA and by us and dated November 7th 2011.

In the AST there are no clauses describing notice periods for either side.

Our deposit is in TDS and we have the prescribed info.

What does this notice actually mean? Does it mean that there is no two month notice required by the LL and they just go straight to court?

We are in the process of buying a house but it is taking a long time. We haven't received any S8/S21 but I was just looking for details/reassurance that we can be confident we can't be kicked out before completion on our house.

Thanks, Andy

G_M

Was the Notice a S21?

Either way, if it was issued at the start of the (12 month) Fixed Term in Nov 2011, and you are now in a Periodic Tenancy, it is expired.

There are 2 different S21s - one for use during the Fixed term (which I assume this was) and the other for Periodic Tenancies (which you now have).

So the LL will need to give you your 2 months notice again.

There are example S21s in this post:

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?)

edit: I'm having a blank moment.... Perhaps the selection of correct S21 (1b Vs 4a) depends when served, rather than when implemented.

brain stoppedworking. Wait for someoneelse...

ajayre

The top of the document says "Section 21(1)(b)" and "Assured Shorthold Tenancy: Fixed Term".

Andy

franklee

The LL serves a Section 21(1)(b) during the fixed term and this is not invalidated by the tenant going onto a periodic tenancy. Really that makes sense as the S21 can't ask for possession during the fixed term so any tenant staying on would most likely go onto a periodic tenancy which does not put the landlord back to square one.

So the LL has served the correct notice and if the last day of your fixed term was on or before 7th November 2012 the S21 has been filled in correctly. The only flaw as far as I can see it that it may have been served too early: "One of the documents we signed along with the 12 month renewal" To be valid the S21 needs to be served after the tenancy has started which is hard to argue if it was given at the same time as the renewal paperwork - before the renewal was formally agreed. However if it isn't invalid on that score then the effect is as as you say "there is no two month notice required by the LL and they just go straight to court".

This little ruse is nicknamed the Sword of Damocles and is fairly common. The idea is to get the two months notice out of the way early on so the landlord can just go straight to court if later on he wants the tenant to leave. It saves him waiting that pesky two months but effectively deprives the tenant of their notice as they didn't realise they should have been arranging to move. IMO it's not a good idea to stay on a periodic tenancy with an S21 hanging over you.

franklee

So as to dates did it go like this?

Fixed term: 8th Nov 2011 to 7th Nov 2012
Periodic tenancy from 8th November 2012
Renewal paperwork and S21 given and signed on Nov 7th 2011.

Looks to be too soon to me as the renewal hasn't yet started. The S21 should have been served a couple of days later. I think you may have just about got away with it.

ajayre

Yes, that timeline is correct.

Our deposit was taken and protected April 2011 at the start of the initial six month AST.

From the 12 month AST:
The 12 month renewal is dated 3rd Nov 2011.
The 12 month term starts on 8th Nov 2011.
There is no date for our signature on the AST but we have a receipt for the renewal fee dated 7th Nov 2011.

The S21 date of expiry is "after 7th November 2012".
The S21 was signed by LA on 3rd November 2011.
We signed and dated the S21 on 7th November 2011.

At the bottom of the S21 it says:

"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".

Andy

BitterAndTwisted

But surely that S21 Notice would have been invalid if the tenant's deposit hadn't registered before the date of issue?

Edit: How could the deposit have been protected in April when the fixed-term started in November of the same year?

ajayre

We originally had a six month AST. Then one month periodic. Then 12 months AST. It was our choice to get the 12 months - we wanted the security.

Andy

franklee

The S21 date of expiry is "after 7th November 2011". Surely it's after 7th November 2012.

What matters here is what day the S21 was served that is what day it's legally deemed to have arrived. The detail of that is going to depend on how and when it was served. E.g. was it posted first class on 3rd (or whatever). However given it has arrived with you by the 7th (as that's the day you signed it) I think the agent will have a job proving it was served on or after the 8th (even on the 8th is debatable). So as I said on currently available details it looks like the S21 was served before the renewal started. I'm at a loss why agents do this, if they posted the S21 say a week later they'd have been in the clear.

ajayre

Hi Frank, It is simpler than that. We went into their office on the 7th Nov 2011 and signed the S21, prescribed info, and 12 month AST all at the same time. Nothing was posted to us.

Andy

franklee

In that case I'd argue that the S21 was served before the renewal started on the 8th and is therefore invalid.

Plus it's bad practise to give the S21 at the same time as the tenancy agreement to sign as the agent cannot prove which was first. Even if they were handed over together a tenant can say they were given the S21 before they signed the tenancy agreement.

Of course the LL/agent may press ahead with actioning such a S21 but I think there is doubt they'd succeed so explaining the above may well put them off actioning that S21.