Can staying after expiry of Section 21 be a "breach of contract"

britbat

Hi folks

I'll keep this as brief as possible to begin with.

I have been served with Section 21 notice on a statutory periodic tenancy. The S.21 appears valid as far as I can tell, and I have been expecting one for some time.

Along with the notice, the estate agent has booked an inventory clerk to attend at a specified time on the last day of the contract. The terms and conditions of the tenancy state that, unless cancelled with 48 hours notice, there is a hefty charge for a "failed check-out".

Upon receipt of the S.21 I immediately contacted the EA to instruct them to cancel the inventory clerk as I had not given notice on the contract.

The EA refuses to confirm that they have cancelled the inventory clerk. This leaves me potentially facing a charge (or fine) if I have not left on the expiry of the S.21. This seems unacceptable. Can an EA unilaterally book a service based on notice that has not been given, then charge a tenant if the service is not carried out?

Furthermore, they insist that if I stay beyond the expiry of the S.21 I will be in breach of my tenancy agreement.

I do not see how this can be true: I can find no clause in my TA that reflects this, and I cannot see how such a clause could be lawful. Is staying beyond the expiry of an S.21 a de facto breach of contract? Could a clause in a TA lawfully make it so?

For the record, I intend to quit before the S.21 expires, but I do not want to create a situation where it may appear that I have agreed to quit before that date.

Anyone know the position on either of these issues?

Marktheshark

Who is the other party on the agreement ?
This is who the contract is with.
If it is the landlord, which it should be.
If the agent claims authority when asked in what roll they have an interest in the contract it should be to act as "third" party.
They are acting in a tri party agreement as a third party between you and the landlord, if they are not on the agreement you can sack them just as the landlord can and deal directly with the landlord.

The tail does not wag the dog, agents are your employees.

Guest101

britbat wrote: »

Hi folks

I'll keep this as brief as possible to begin with.

I have been served with Section 21 notice on a statutory periodic tenancy. The S.21 appears valid as far as I can tell, and I have been expecting one for some time.

Along with the notice, the estate agent has booked an inventory clerk to attend at a specified time on the last day of the contract. The terms and conditions of the tenancy state that, unless cancelled with 48 hours notice, there is a hefty charge for a "failed check-out".

Upon receipt of the S.21 I immediately contacted the EA to instruct them to cancel the inventory clerk as I had not given notice on the contract.

The EA refuses to confirm that they have cancelled the inventory clerk. This leaves me potentially facing a charge (or fine) if I have not left on the expiry of the S.21. This seems unacceptable. Can an EA unilaterally book a service based on notice that has not been given, then charge a tenant if the service is not carried out?

Furthermore, they insist that if I stay beyond the expiry of the S.21 I will be in breach of my tenancy agreement.

I do not see how this can be true: I can find no clause in my TA that reflects this, and I cannot see how such a clause could be lawful. Is staying beyond the expiry of an S.21 a de facto breach of contract? Could a clause in a TA lawfully make it so?

For the record, I intend to quit before the S.21 expires, but I do not want to create a situation where it may appear that I have agreed to quit before that date.

Anyone know the position on either of these issues?

Even if it is in breach, it is no different to the usual process.

britbat

Marktheshark wrote: »

Who is the other party on the agreement ?
This is who the contract is with.
If it is the landlord, which it should be.
If the agent claims authority when asked in what roll they have an interest in the contract it should be to act as "third" party.
They are acting in a tri party agreement as a third party between you and the landlord, if they are not on the agreement you can sack them just as the landlord can and deal directly with the landlord.

The tail does not wag the dog, agents are your employees.

The above may be true in principle but is not really feasible in practice. We have only a UK postal address for the landlord who is, in fact, based in the Far East and whom we communicate with via the EA. Generally messages are relayed to the landlord and responses to us in good time.

Not an ideal situation perhaps but to change now would take time and muddy the waters. So rather than sacking the agent I'm more interested in telling whether aforementioned agent is talking out of their... y'know.

00ec25

please explain whether the fixed term of the tenancy has already ended or is due to end on the same date the S21 states, as it is unclear why the S21 has been served.
Is the LL giving notice that he does not want to renew a further fixed term and is thus seeking to end the tenancy, or are you already beyond the fixed term and the LL is seeking to end it whilst you are in a periodic tenancy?

as has been said countless times on here, a S21 served on a tenant does not end the tenant's tenancy. EITHER the tenancy has reached its end date and the S21 notifies the tenant that if they do not move out the LL will go to court to seek eviction OR the LL wants to repossess the property after the end of the fixed term and the S21 in that case gives notice that the LL will go to court to get an eviction order if the tenant does not leave.

Neither the S21 nor the LL can end a tenancy, only a court order can do that. If the tenant stays on beyond the date in the S21 it is not a "breach" of contract, but it does mean that the LL has to get a court order to physically evict you.

On the other hand, as a tenant, if you wish to leave before (or after) the S21 expiry date then you MUST give notice of your own in accordance with whatever is the relevant notice period for the type of tenancy then in place, otherwise you are the one who is in breach of the tenancy contract by leaving "early" if you stop paying rent.

britbat

00ec25 wrote: »

please explain whether the fixed term of the tenancy has already ended or is due to end on the same date the S21 states, as it is unclear why the S21 has been served.

Tenancy was originally an AST which became an SPT on expiry of the term several months ago. The S.21 appears valid and validly served - not quibbling with that.

The notice has been served because the landlord wants to sell the property, and indeed has been marketing it for several months without success.

As things stand it's looking like we might want to stay just a week or so beyond the expiry of the S.21 (ie a few days past the end of a rent period) which, I know, will require the agreement of the landlord.

Of course we will give the appropriate month's notice for that - just wanted to make sure that, contrary to the EA's advice, staying after the end of the S.21 isn't some kind of breach of contract in and of itself.

Guest101

britbat wrote: »

Tenancy was originally an AST which became an SPT on expiry of the term several months ago. The S.21 appears valid and validly served - not quibbling with that.

The notice has been served because the landlord wants to sell the property, and indeed has been marketing it for several months without success.

As things stand it's looking like we might want to stay just a week or so beyond the expiry of the S.21 (ie a few days past the end of a rent period) which, I know, will require the agreement of the landlord. - No it wont? but it may be useful as otherwise you'd be liable for the full months rent

Of course we will give the appropriate month's notice for that - you wont, as notice must be in tenancy periods. - just wanted to make sure that, contrary to the EA's advice, staying after the end of the S.21 isn't some kind of breach of contract in and of itself.

Since you ignored me before, does it matter if it is a breach or not?


Legally it make no difference. What do you think happens when you breach a contract?

Barejester

G_M Created a thorough guide on ending a tenancy and under what circumstances a tenancy can end and would be worth a read through so you're familiar with the process.


The S21 does not end the tenancy on the day the notice is set to expire, it only allows the Landlord to apply to the courts for them to end the tenancy. This process can take several weeks and so past the expiry of the S21 you could effectively be in the property for another several months once you include the process of applying the courts and then applying for bailiffs to have you removed.


The notice you give must align with and expire at the end of a tenancy period, subject to whatever other conditions you agreed to. Even in the event of an S21, contractually you still need to end your tenancy in this manner by serving the required notice in line with the tenancy period.


However - this is where you can start to negotiate with the Landlord. The courts and bailiffs process will take several weeks/months to conclude, and if you want to stay only for a few weeks and those weeks do not align with the tenancy period, you come to an understanding with the Landlord to that extent as it is mutually beneficial to you both to not let it reach court.

saajan_12

Is it a breach? Probably
Your contract may state that you will leave at the expiry of a landlord's Section 21 notice. If you don't, you have breached a contractual term and so have to pay for the LL's costs in enforcing that, i.e. court filling costs to apply for possession.

Does it matter? No
Tenancy law still applies so the only way you can be evicted is through a valid Section 21 notice followed by a possession order from the courts and ultimately a bailiffs visit. The LL should know that a Section 21 notice doesn't end a tenancy and so shouldn't line up the next tenants etc. Thus even if its considered a 'breach', you shouldn't be liable for further LL costs if they have made arrangements to use the property immediately after the Section 21 expired as that wouldn't be mitigating their losses.

Pixie5740

1) You do not require the landlord's permission to remain in the property after the date given on the Section 21.

2) Your contract (the AST) does not overrule your statutory rights as a tenant.

Read G_M's guide to Ending/Renewing an AST.