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Has a new contract been created
chappers
Posts: 2,988 Forumite
Hi guys not been on here for a while, I have searched but can't find a definitive answer to this question.
A friend of mine was made homeless about three years ago and their employer at a pub said they could move into the empty flat above the premises, until they found somewhere else and charged them rent accordingly, but no official contract was drawn up.
He then subsequently put the lease of the pub up for sale and being savvy to the fact that an inferred contract had been created. On the 15th of March last year (2014) gave them a written section 21 notice to quit which expired on the 31st June 2014. since that date he has continued to collect rent from them and then last week(6th May 2015) he said that they had to move out on the 31st May as someone else is taking over the lease on the 1st June.
My question is , that having continued to take rent for a further eleven months from the expiration of the S.21 has he in fact created another fixed term/periodic tenancy and therefore does he have to give them a further two months notice.
Cheers in advance
Gareth
A friend of mine was made homeless about three years ago and their employer at a pub said they could move into the empty flat above the premises, until they found somewhere else and charged them rent accordingly, but no official contract was drawn up.
He then subsequently put the lease of the pub up for sale and being savvy to the fact that an inferred contract had been created. On the 15th of March last year (2014) gave them a written section 21 notice to quit which expired on the 31st June 2014. since that date he has continued to collect rent from them and then last week(6th May 2015) he said that they had to move out on the 31st May as someone else is taking over the lease on the 1st June.
My question is , that having continued to take rent for a further eleven months from the expiration of the S.21 has he in fact created another fixed term/periodic tenancy and therefore does he have to give them a further two months notice.
Cheers in advance
Gareth
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Comments
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edit: sorry I misread your post: The S21 does not expire unless the LL grants a new tenancy. Has the T been given a new fixed term tenancy? Moving to a Statutory Periodic Tenancy would not invalidate the S21 since this happens automatically rather than by any express action by the LL.
If the LL expressly granted a new fixed term, that would invalidate the S21.
But from what you say, the LL could go to court on 31st May, and it sounds like that may be the intention.
Yes rent has been paid and accomodation provided so a tenancy exists as does a contract.
Is the flat self-sufficient, or is any part 'shared' with the pub?
Does he work in the pub? If so he might be a service occupier or service tenant (see shelter's tenancy checker here)
The S21 also makes clear the landlord believes there is a contract.
A change in ownership of the property does not affect the tenancy. The new owner should write to the tenant informing him, and the tenant then starts paying rent to the new owner.
Landlord & Tenant Act 19853 Duty to inform tenant of assignment of landlord’s interest.
(1)If the interest of the landlord under a tenancy of premises which consist of or include a dwelling is assigned, the new landlord shall give notice in writing of the assignment, and of his name and address, to the tenant not later than the next day on which rent is payable under the tenancy or, if that is within two months of the assignment, the end of that period of two months.
(2)If trustees consititute the new landlord, a collective description of the trustes as the trustees of the trust in question may be given as the name of the landlord, and where such a collective description is given—
(a)the address of the new landlord may be given as the address from which the affairs of the trust are conducted, and
(b)a change in the persons who are for the time being the trustees of the trust shall not be treated as an assignment of the interest of the landlord.0 -
My question is , that having continued to take rent for a further eleven months from the expiration of the S.21 has he in fact created another fixed term/periodic tenancy and therefore does he have to give them a further two months notice.
Nothing in what you wrote suggests that a new tenancy was created, and therefore the existing s.21 notice remains valid.
The s.21 notice suggests that they consider that an assured shorthold tenancy exists. I am not sure that there is much point arguing whether this is actually the case as that type of tenancy is the best option for the tenant.
I think your friend should be grateful to have had that accommodation and move whilst remaining in good terms with the landlord, especially if the landlord is also his employer.0 -
Staying on with a valid section 21 notice isn't a great idea as the notice could be actioned anytime without the need for the landlord to give anymore notice (Sword of Damocles). At present the section 21 notice doesn't have a use by date. That is changing in the deregulation act which is now passed but I don't know when the new rules apply - possibly not till autumn.On the 15th of March last year (2014) gave them a written section 21 notice to quit which expired on the 31st June 2014. since that date he has continued to collect rent from them and then last week(6th May 2015) he said that they had to move out on the 31st May as someone else is taking over the lease on the 1st June.
My question is , that having continued to take rent for a further eleven months from the expiration of the S.21 has he in fact created another fixed term/periodic tenancy and therefore does he have to give them a further two months notice.
Collecting rent on it's own isn't enough to invalidate a section 21 notice. However a tenancy doesn't have to be in writing and so it would depend on the conversation if any between tenant and landlord when they discussed the tenant staying on on after the section 21 notice. If the landlord has allowed the tenant to stay on then I would say that the section 21 notice is no longer valid. If no conversation took place and the tenant just stayed and the landlord didn't say anything then the section 21 is still valid and there is no need for the landlord to serve anymore notice.
That is assuming the Section notice was valid in the first place. It will be invalid if the deposit regs weren't met, if there is a deposit. This includes serving the prescribed information.0 -
Agreed but it doesn't have to be a new fixed term. The landlord could just say it's OK for the tenant to stay on an open ended basis and that would also do although the tenant may have trouble proving it. One has to ask if the landlord wants the tenant out what are the chances it's dragged on for a year without the landlord at least starting to get a possession order without some verbal agreement being reached especially as the landlord is the tenant's employer so presumably they communicate?If the LL expressly granted a new fixed term, that would invalidate the S21.0 -
Of course, in practice whatever was said carries very little to no value unless there is written evidence...0
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True, though I did first say "rather than by any express action by the LL." The new fixed term was given as an obvious example.Agreed but it doesn't have to be a new fixed term. The landlord could just say it's OK for the tenant to stay on an open ended basis
I agree a verbal statement by the LL that the tenant could stay would be an express action & invalidate the S21 - assuming it was not disputed &/or could be proved.......0 -
Cheers folks.
It's a bit confusing this one as the contract was basically inferred, but I think it's pretty clear that there has been a contract created.
Yes he does work in the pub but the flat is wholly self sufficient from the pub.
The guy is grateful to the LL for helping them out, and is a good friend of the family and won't want to rock the boat and obviously should have been looking for a place sooner. It's just that nothing has happened on the sale of the pub for quite a while and then has happened very quickly.
The LL did actually say that they could stay until a buyer was found.
I think they will find somewhere they just wanted to know where they stood in case.
Thanks for the replies0
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