When to leave after section 21 (periodic tenancy)

jjlandlord

Rollinghills wrote: »

But being liable for a whole month's rent isn't necessarily common sense.

Well this has nothing to do with section 21...

LplateSaver

SerialRenter wrote: »

Technically yes.

But it could be seen as an unwritten mutual agreement to end the tenancy if they comply with the S21.

Basing this on the sword of damocles not altering the requirements for tenants to give notice to quit. It could be argued that a S21 does not constitute the landlords agreement to surrender on any date, only the option to seek possession after the date on the notice has passed.
Please feel free to disagree, as far as i'm aware, nothing like this has gone to court, so who knows how it would pan out.

Dear god that is something else :rotfl: How has something like that gone to court yet? It seems to be leaving the tenant in limbo as it currently is.

jjlandlord

Tenants are not left in limbo at all at the moment.

Rollinghills

LplateSaver wrote: »

Dear god that is something else :rotfl: How has something like that gone to court yet? It seems to be leaving the tenant in limbo as it currently is.

Yep! I do feel a bit like I don't know where we stand if we overstay the expiry of section 21 by even one day. Or one minute. Of course this is the worst case scenario, most landlords would probably be happy the tenant is leaving without having to go to court. Buy I bet some would try to take advantage, and as we are not on good terms with our ll at the moment I'm thinking about the worst case scenarios.

franklee

Rollinghills, Suggest you phone or email Shelter and ask them if you can leave on the last day of the section 21 notice period without your own notice and without incurring anymore need to pay rent after that date. Then come back and let us know what they say. Hundreds of tenants do this as the normal course of action yet the nay sayers here can't point to one court case about it. Meanwhile I agree with Painmsiths view in the comments of this blog here:

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

I recall your other threads now. Given your landlord has been awkward so far do ask Shelter for yourself. Keep good paper records of everything including the report that the damp wasn't your fault in case this all gets acrimonious.

You still have the issue of the length of notice you need to give to resolve as it seemed like you signed up to a contractual periodic tenancy that specifies two months notice. You will need to get this clear especially if you can't meet the section 21 date in which case you will have to serve your own notice or agree a surrender with the landlord. Good job you challenged that 21% rent increase at tribunal as otherwise paying an extra month or twos rent is going to get very expensive! Suggest you have all your tenancy agreements to hand including the periodic one when you call Shelter to get this resolved also.

Rollinghills

Franklee, thank you again. The painsmith blog is very informative and I am now convinced that it is actually the right interpretation of the law. Most tenants and landlords I'm sure would not look that deeply into it but I'm glad I understand - even though it makes life more complicated for us.

I really need to find that piece of paper we signed when tenancy went periodic to see if our notice period is 1 or 2 months.

I will email Shelter and ask whether it is OK to leave on expiry date of section 21 without our own notice. Might be good to have it in writing from them.

SerialRenter

Interesting read. especially seeing other's take on the matter. I think lawcrunchers reply to the blog is very relevant:

Before the HA 1988 came into force a tenant under a periodic tenancy wishing unilaterally to bring a tenancy to an end needed to serve a notice to quit and nothing in the Act does specifically alters that. The question is therefore whether there is any justification for the view that a tenant served with a section 21 notice is entitled to leave (whether before or after the notice expires) without giving a notice to quit.

The first point to make is that I cannot help feeling that if Parliament had intended that the service of a section 21 notice should give the tenant the right to leave without notice it would have said so in the Act. That is not of course conclusive and is at the most a string to my bow.

The first argument that a tenant does not need to give notice to quit is that a section 21 notice is an offer to surrender. The first hurdle that anyone advancing that argument has to negotiate is to persuade a court that where an act requires a notice to be served that the notice serves any purpose other than that set out in the act. The HA 1988 provides that a section 21 is a preliminary to applying to the court for possession and no more. It is a bit of an oddity in that the act does not (specifically) provide for the notice to have any effect. It is certainly not a notice to quit and does not impose on the tenant any obligation to leave. The fact that the act requires the landlord to state he requires possession is no more than a matter of form.

If we assume that a statutory notice can have a secondary purpose, then the next question is whether the wording amounts to an offer to surrender. Let’s suppose for a moment that the tenancy is not an AST. You write a letter to the tenant simply saying “I require possession of the property on…” I do not think that that is an offer to surrender, but rather an invitation to treat. There is not enough there to constitute an offer for a tenant to accept and in any event could only be an offer to accept a surrender on the date specified in the letter. If such a letter is not an offer to surrender, then a section 21 notice cannot be an offer to surrender.

Even if the notice does constitute an offer, the tenant has to accept it for there to be an agreement to surrender. We then run into the problem of whether offer and acceptance comply with section 2 of the Law of Property (Miscellaneous Provisions) Act. They almost certainly will not because “a contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document or, where contracts are exchanged, in each.” We can add that an actual surrender, as opposed to an agreement for surrender, needs to be made by deed or by operation of law, which involves unequivocal acts by both parties.

I think therefore that following the service of a section 21 notice notice there can only be a surrender if:

1. The parties specifically agree one.

2. There is a surrender by operation of law. You need a scenario where there is something done by both parties which is inconsistent with the tenancy continuing or where one party does something inconsistent with the tenancy continuing and the conduct of the other party is such that it would be inequitable for the tenancy to continue. The tenant simply leaving the premises is not enough.

The second argument that a tenant does not need to give notice to quit is that a section 21 notice gives the tenant an equitable right to leave because he is only complying with the landlord’s request. I initially found this argument attractive, but on reflection had to reject it. I repeat the point I made above: the HA 1988 does not provide for a section 21 notice to have any effect and the fact that the Act requires the landlord to state he requires possession is no more than a matter of form. Apart from that, it is an essential requirement of a tenancy that at any moment of time the parties know the earliest date on which it can be brought to an end. If after the service of a section 21 notice a tenant can leave when he chooses without serving a notice to quit (and whether you argue that he can leave before or after the expiry or date or both) that would fly in the face of a basic principle of landlord and tenant law. Of course statute can change basics principles of law, but there is nothing in the HA 1988 that changes the principle that the parties must know the earliest date on which a tenancy can be brought to an end.

Hundreds of tenants do this as the normal course of action yet the nay sayers here can't point to one court case about it.

I doubt there's been a court case, it's in the interest of the landlord to grant a surrender at the date on the S.21. It's always best to cover your bases and have proof that it was mutual surrender. Just in case.

franklee

SerialRenter wrote: »

Interesting read. especially seeing other's take on the matter. I think lawcrunchers reply to the blog is very relevant:




I doubt there's been a court case, it's in the interest of the landlord to grant a surrender at the date on the S.21. It's always best to cover your bases and have proof that it was mutual surrender. Just in case.

I'm guessing that's the same lawcruncher that posts on landlordzone although he/she hasn't revealed their identity or qualifications my guess is based on same writing style and arguments. He/she also posts on other forums under different names but not here as far as I know. However I've seen Painsmith, Tessa and Nearly Legal all disagree with lawcruncher on Painsmith's and Tessa's blogs and they are well known qualified expert solicitors in landlord and tenant law. No idea what if any qualifications lawcruncher has or if he/she works in the field. Have already posted the Painsmith link, will look for Tessa's later.

Interesting that the Deregulation Bill 2014-15 proposes a pro-rata refund of rent that reinforces it's OK for a tenant to leave at the end of the section 21 notice period and their liability to pay rent ends there.

http://nearlylegal.co.uk/blog/2015/02/proposed-changes-s-21/
"Rent repayment. Where a s.21 notice ‘ends’ a tenancy other than at the end of a period of the tenancy, and rent for that period has been paid in advance, and the tenant leaves before the end of the period, the landlord must pay the rent back to the tenant, pro rata for each full day unoccupied.

All of this will only apply to new tenancies granted on or after the date of commencement. After three years from commencement, it will apply to all ASTs."

The bill isn't in time to help the OP so the OP won't be able to reclaim rent paid in advance but hopefully her section 21 notice runs to the end of a period anyway. The point is it confirms the effect of a section 21 notice when the tenant leaves at the end of the section 21 notice period.

Besides it is well worth reading the comments especially the ones from Giles answering Romain's questions on the effect of a s21 which covers the same issues we've been discussing.

Rollinghills

franklee wrote: »

Interesting that the Deregulation Bill 2014-15 proposes a pro-rata refund of rent after the section 21 that reinforces it's OK for a tenant to leave at the end of the section 21 notice period and their liability to pay rent ends there.

I read that based on some court ruling it may now be acceptable for landlords to give 2 calendar months notice when issuing s.21, i.e. the expiry would not correspond with the end of the tenancy period. Do I remember that right? I guess that could be why they are proposing the pro-rata refund. This isn't an issue for us as our landlord used the date to correspond with the end of our tenancy period.

SerialRenter

Tessa did actually make a blog post about this subject:

http://www.landlordlawblog.co.uk/2013/07/12/if-a-s-notice-is-served-does-this-mean-tenants-dont-have-to-give-notice-to-quit/

I belive this section:

The only exception to this that I can see is if the tenant leaves on or very shortly before the date for possession given in the section 21 notice. I don’t think it is reasonable for a tenant to have to give notice in this situation unless perhaps he has agreed with the landlord that he will be staying on.

Is based on the assumption that the landlord is agreeing to a mutual surrender of the tenancy on that date, which is perfectly reasonable and i assume this happens in the vast majority of scenarios.
However, there's no reason a landlord couldn't change their mind. I do not believe a S21 would have the same legal clout as a letter signed by the landlord stating "I agree with the tenants wish to terminate the tenancy on x date".
Because an S21 is a notice to seek possession through the courts AFTER a certain date. It is not (although commonly is misunderstood to be) a notice to GAIN possession on that date.