When to leave after section 21 (periodic tenancy)

franklee

Rollinghills wrote: »

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.

Yes that's it. However I also linked to the blog post for the comments which address a tenant leaving when the section 21 notice expires as they are having a similar discussion to the one here. Besides which ordering a pro-rata refund if the tenant leaves at the end of the section 21 notice does show it's OK to leave then IUSWIM. A useful point to note even for those tenants who don't need a refund as it confirms they can leave with no more rent to pay (should that confirmation be needed). In other words if a tenant wasn't free to leave at the end of the section 21 notice period there would be no need for a refund as the tenant would still owe the rent.

jjlandlord

The Deregulation Act is extremely badly written regarding this new right to pro-rata refund and might even prevent the landlord from receiving rent.

Certainly, it does not give any indication as to whether a tenant may leave at the expiry of a section 21 notice.

My guess (it is really badly drafted) is that it is meant for the normal possession procedure: the tenancy will end when bailiffs execute the court order.
Obviously bailiffs may show up on any day and under existing tenancy law the tenant would be liable for the full month rent even if he is evicted e.g. 1 single day into a monthly period.

I foresee a lot of problems and new case law attempting to make sense of the drafting.

Rollinghills

I think there also has to be better guidance for tenants and landlords on what section 21 really is.

I would guess a very large % of landlords would expect the tenant to leave at the expiry of s.21 and would not expect a notice from from them. Equally I'm sure 99% of tenants would not think of giving notice having received s21 unless they overstay the expiry and even then would expect the landlord to agree to a surrender at a reasonable notice, not a full contractual notice period.

S.21 form comes with guidance for tenants but these points are not clear at all.

franklee

Rollinghills wrote: »

I think there also has to be better guidance for tenants and landlords on what section 21 really is.

I would guess a very large % of landlords would expect the tenant to leave at the expiry of s.21 and would not expect a notice from from them. Equally I'm sure 99% of tenants would not think of giving notice having received s21 unless they overstay the expiry and even then would expect the landlord to agree to a surrender at a reasonable notice, not a full contractual notice period.

S.21 form comes with guidance for tenants but these points are not clear at all.

Your point about the section 21 guidance is a good one. If it were necessary for the tenant to serve their own notice to leave on the s21 date I'd expect to see it in the guidance. Even more so once the deregulation bill comes in stipulating a prescribed form of s.21 notice must be used, with an information pack for the tenants.

Frankly I think a landlord arguing a tenant cannot leave in accordance with the section 21 notice is shooting himself in the foot as it undermines his most powerful tool. There have been a few new restrictions placed on the section 21 in recent years (deposit protection etc.) plus more in the pipeline (retaliatory eviction restraints). The old saying if you abuse it you lose it springs to mind.

I think the problem is that landlords these days abuse the section 21 notice by using it as a precaution and thus get upset when a tenant acts on it by leaving. Therefore they have tried to look for loopholes to justify why a tenant should not leave without serving their own notice. Really if the landlord only served the section 21 when he actually wanted possession there would be no issue as he would be happy for the tenant to go.

The comments on the Nearly Legal blog post I linked to are worth reading to clear this up especially those by Giles 12/02/2015 at 2:05 pm and 13/02/2015 at 7:43 pm.

Still it's your rent money at stake so I suggest you still email Shelter to double check and importantly give you something to show your landlord should it be necessary. Plese come back and let us know what Shelter say.

jjlandlord

There is no guidance at the moment on a "section 21 form" for the simple reason that there is no such form.

franklee

There is no prescribed form for the section 21 notice at present, that's due with the deregulation bill coming soon. However clearly the notice Rollinghills got did come with guidance notes as have those I've got. Many organisations produce section 21 forms like landlord's associations, RICS etc, they can do their own thing at present.

I think a prescribed form is a good thing - let's see if the information pack for tenants brought in with it stipulates that a tenant has to serve their own notice to leave at the end of the section 21 notice period

jjlandlord

Guidances can only repeat the legal position, which is that a section 21 notice has no effect beyong entitling the landlord to start legal proceedings...

This debate has been going on for years. Where are the actual evidence?
If the solicitors mentioned here can only write what they think ought to be the case without evidence it is not very convincing (*) (but they have this lawyerly self-confidence when expressing their views, or perhaps when just repeating views).

Even case law states, for example, that nothing in the Housing Act changes the normal position (notice to quite or surrender acceptance).

If that was not the case then it should be in the statute.

The bottom line remains that in any case a tenant would be foolish to just pack his bags and leave, as said.
He should at the very least communicate with his landlord to assert his landlord's intentions and arrange a check out. All in writing, of course.

Edit:
(*) That being said, I have no doubt that when such case gets to county court (and such cases must get to county court) the result is grey, with courts probably not unsympathetic to the tenant.

sniperpenguin

All of this just goes to convince me further that should I ever need to ask my tenant to leave.... they will utterly, utterly have me by the balls should they decide not to want to go!

Pixie5740

How would your tenant have you by the balls? You issue a Section 21, if the tenant doesn't move out then you go to court. As the Section 21 is mandatory grounds for possession the assuming you're paperwork is in order then you'll be granted an eviction notice.

sniperpenguin

Pixie5740 wrote: »

How would your tenant have you by the balls? You issue a Section 21, if the tenant doesn't move out then you go to court. As the Section 21 is mandatory grounds for possession the assuming you're paperwork is in order then you'll be granted an eviction notice.

Because rather than "You need to leave", its more a case of "You can sit there whilst I pay a ton of money to go through a court process and get an eviction notice, which you can appeal... all the while likely not getting my rent since I've evicted you" :rotfl: