Why was I given a section 21 when i signed my lease?

guppy

twirlie wrote: »

Thats interesting, since mine definately was (signed on the 22nd Feb, not the 23rd when the tenancy started). However I have no way to prove this, as we all dated it from the 23rd, as I was mistakenly led to believe that this was how things are done, by the now looking dodgier by the second agent!!

Don't be led to believe anything ever again! Especially not by letting agents.

twirlie wrote: »

I'm sorry but I'm really not comfortable with this guy at all now. What on earth makes him think he can 'kick me out' as and when he feels like it?! I know he can't, legally, but this is the first flat I've ever rented, I really need good references (which I should damn well get, considering how well I've looked after his flat) and its hard enough finding a flat on HB as it is - I don't need anything else going against me.

Try not to let his arrogant attitude bother you. Unfortunately too many LL's can't get their head around the idea that they've surrendered some of their rights to a property for the duration of the tenancy. No doubt he lets himself in whenever he feels like it too as well as seeing fit to store his old furniture there for free.

Anyway, he no doubt knows he can't kick you out. But he might think you don't. In the interests of maintaining good relations, just ignore him unless he starts really acting up.

twirlie wrote: »

So anyway, the upshot of this is I'm planning to give him my notice in December and move out on Feb 23rd. I have a 1 year old little boy and I'm not happy with a landlord who can completely ignore any promises he's made (see my other threads) and seems to think that he can kick me out as and when he feels like it. I'm also a little concerned about getting my deposit back from him since he seems to have a lot of cash flow problems, and £850 is a lot to lose.

You don't legally have to give him any notice, just so long as you've vacated the property by end of the last day of the tenancy.

In practice, I'd give him as much notice as you think best. Personally I won't hesitate to use my legal rights as and when, but its usually better to keep things friendly if you can do so without being walked all over.

Get him round shortly before you move out to discuss the deposit and to discuss any issues that might give him an excuse to hold money back. Your deposit at the new place should be covered by the new compulsory protection scheme.

Did you and the LL carry out an inventory of the property's condition before you moved in? Personally whenever I have rented in the past, I never got one. Don't worry if you haven't, if things turn nasty, its usually down to the LL to prove the damage was caused by you.

Finally, keep reading this board - you're in a much better position if you know your rights But don't take everything on here as gospel (especially if its written by me!). You can get reliable info on renting at the Shelter charity website (http://shelter.org.uk/).

franklee

guppy wrote: »

I realise this, and I agree with the sentiments in your sig, franklee, but in reality, what else can a tenant do but negotiate with the LL once they've signed up for six months?

Ah, good question! I would:

1. Ask about the landlord's plans before committing to the property. I'd ask him: Is it a long term let? Can I see the AST? Are you planning to sell? What are all the charges? Do you routinely serve an S21 at the start? What do you prefer to happen after the fixed term a renewal or a periodic tenancy? Etc. etc. That way I can choose to look elsewhere if I don't like the answers.

2. If, despite the landlord saying otherwise, the Sword of Damocles S21 is still served and it's too late for me to back out I'd attempt to invalidate it. I would look horrified and say but I thought you were offering a long term let? Why have you changed your mind? Does this mean I will have to move in six months? I'm renting unfurnished and have a house full of stuff, it's not worth my moving in properly for such a short time, I'd need to start arranging to move out on four months time etc. etc. Then when the landlord rushes to reassure me that "should all go well" I'll be able to stay I'll ask very nicely for that reassurance in writing. If that is not forthcoming I'll write up the whole conversation and post it to him inviting him to correct anything he disagrees with. This will give me proof that the SoD S21 is in fact invalid.

3. If the landlord asks me to sign the AST and the S21 on the same day then I will be sure to sign both with date and time making sure the S21 is signed first making it invalid.

4. Two months before the end of the AST I'd write to the landlord enquiring if I can stay on. I'll explain I need to full two months to arrange moving and will wish to start arranging that now unless he confirms he wants me to stay. Any written offer from the landlord for me to remain also invalidates the S21.

5. If the landlord has been co-operative then I may stay. Otherwise I'll take my time to find somewhere else and move out without giving notice as the S21 was my notice and that notice, unless I challenge it successfully, remains in force even after the fixed term expires. That way I can get a good deal elsewhere as I can be flexible with the moving dates.

6. If I still haven't moved and the landlord moves to action the S21 I'll challenge it. I'll have enough to knobble the accelerated possession and force a hearing which will buy me more time to move. Chances are I'll win the challenge as I'll have plenty of written evidence the S21 was invalidated several times over.

guppy wrote: »

Even if the LL doesn't serve the S.21 straight away, the tenant could still be left wondering if they have to move out, right up until the end of month 4 of the tenancy.

Right. With an Assured Shorthold Tenancy the tenant has limited security of tenure but so long as I get two months fair notice I know I can arrange to move in two months. Not ideal but better than no notice and facing possession proceedings that I would lose if I didn't guard against the Sword of Damocles.

franklee

twirlie wrote: »

Thats interesting, since mine definately was (signed on the 22nd Feb, not the 23rd when the tenancy started). However I have no way to prove this, as we all dated it from the 23rd, as I was mistakenly led to believe that this was how things are done, by the now looking dodgier by the second agent!!

Noooo!! Always put the actual date on which you signed!

If you signed on the 22nd Feb when the tenancy started on the 23rd Feb then the S21 should be invalid. But if you've no proof, and as you dated your signature as being on the 23rd Feb then you are stuffed! The agent misled you to make the S21 valid.

twirlie wrote: »

Well I was planning on kicking you out a few months ago (I laughed, thinking he was joking - but then realised he was serious) because I'm having a few family problems and was thinking of living there myself, but thats okay now so I guess you can stay."

Unless there is a break clause he can't kick you out during the fixed term. Have a look to see if there is a break clause so you don't get caught out with this next time! Bearing in mind that break clauses may not always be enforceable.

twirlie wrote: »

I really need good references (which I should damn well get, considering how well I've looked after his flat) and its hard enough finding a flat on HB as it is - I don't need anything else going against me.

Yes, that's what all those glibly saying a teanant can ignore the S21 forget, good references are important, but you also need to enforce your rights.

twirlie wrote: »

So anyway, the upshot of this is I'm planning to give him my notice in December and move out on Feb 23rd.

Whoa there, lets get the detail clear:

If your tenancy started on 23rd Feb 2007 then, unless a time is stated in the AST, the last day of the years fixed term is 22rd Feb 2008. See here for reasoning:

http://forums.moneysavingexpert.com/showpost.html?p=6513708&postcount=26

A tenant can move at at the end of the fixed term and no later without giving notice. So you can move out on the 22nd Feb 2008 without giving notice even if there was no S21 served. If you do this make sure it's clear you've handed your keys back etc. so that there can be no argument when you left. I think it's best to attend the checkout too so in practise you may have to give a few days notice of your leaving so the checkout can be arranged.

twirlie wrote: »

However, my next question is this - if this S21 has already been served, how do I go about giving him my notice?

The S21 means the landlord is asking you to leave. That means you can leave anytime on or after S21 expiry and you do not have to give notice. If you stay past the 22nd Feb 2008 AND the S21 is not properly withdrawn AND there is no new AST agreed then you can leave anytime and owe rent pro-rata for the days you were in occupation. Not that I recommend staying past S21 expiry like this as it will stuff up your references as I said in post #16 and you may have to face posession proceedings but it's worth knowing in case you have no where else to go.

guppy

franklee wrote: »

5. If the landlord has been co-operative then I may stay. Otherwise I'll take my time to find somewhere else and move out without giving notice as the S21 was my notice and that notice, unless I challenge it successfully, remains in force even after the fixed term expires.

Are we assuming that the S.21 is invalid here?
I'm not sure it would be possible for the tenant to have his cake and eat it in this way.

Assuming the S.21 is invalid then surely by remaining in occupation and paying rent once the AST expires the tenant is entering in to a periodic tenancy. So you couldn't just walk, you'd have to give a month's notice?

If the S.21 is valid then the tenant is running the risk of being taken to court and having to pay the LL's costs.

Anyway, I entirely agree that serving a S.21 at the beginning is a very strange way to do business.

franklee

guppy wrote: »

Are we assuming that the S.21 is invalid here?

In point 5 above I was referring to a Sword of Damocles S21 where the landlord would not start possession proceedings straight away as he doesn't actually yet want the tenant to leave. Therefore the S21 will go unchallenged. This means I can walk at any time.

I would have collected evidence I think the S21 is invalid. But the S21 would still stand unless I as the tenant a) Challenge the S21 AND b) Am successful in that challenge. I would only challenge the S21 if the landlord starts possession proceedings. Then either the landlord takes legal advice, finds out I'm right and backs down OR it goes to court and the court decides on if the S21 is valid or not.

The landlord cannot withdraw the S21 unilaterally. Say the S21 has expired and I'm about to sign up to a new property, having paid a deposit and I'm ready to move. If the landlord writes to me tomorrow, prompted by having been asked for a reference, withdrawing the S21 and making it technically invalid does it still stand? Of course it does as I'm committed to moving and that's that. On the other hand if I didn't want to move then on receipt of the landlord's letter withdrawing the S21 I can agree with him to stay by (preferably written) agreement from both sides that the S21 is now withdrawn. Then I can no longer walk as I have agreed with the landlord that I will stay and will adhere to what ever terms we agreed provided they are writen down which I will make part of the agreement!

guppy wrote: »

Assuming the S.21 is invalid then surely by remaining in occupation and paying rent once the AST expires the tenant is entering in to a periodic tenancy. So you couldn't just walk, you'd have to give a month's notice?

Regardless of if the S21 is valid or not then the tenancy continues whilst the tenant remains in occupation so again the validity of the S21 makes no difference.

If the tenant wants to rely on an invalid S21 they can do so. As explained above regardless of if the S21 is technically valid or not it stands unless the tenant successfully challenges it which I would not do if I was planning to walk soon as I would be gone before the landlord applies to court for possession.

The landlord should have no problem with this as he's getting what he requested in the S21, possession of his property. If the landlord has made a technical error in the S21 then that is the landlord's problem and not the tenant's. After all many tenants are evicted with invalid S21s and they probably do not even realise the S21 was invalid.

The tenant paying rent and the landlord accepting rent have no effect on the S21. Think of it like this, if the landlord wanted the tenant to leave he still accepts rent while waiting for the court to process his possession application. The payment and acceptance of rent does not cancel the court proceedings or affect the S21. If it did then landlords would never be able to evict rent paying tenants!

guppy wrote: »

If the S.21 is valid then the tenant is running the risk of being taken to court and having to pay the LL's costs.

That's why I would not recommend staying past S21 expiry if the S21 is valid unless it's the tenant's last resort!

guppy wrote: »

Anyway, I entirely agree that serving a S.21 at the beginning is a very strange way to do business.

Indeed!

guppy

Apologies franklee, I think I missed your point.

Basically you're saying if an invalid S.21 is served, the tenant is still entitled to take it at face value? Unless he chooses to fight it because it does not suit his ends? So, the tenant can effectively have his cake and eat it. I suppose it would be ridiculous for a LL to take a tenant to court on the basis that the LL's own S.21 was not valid.

I assume rent is payable on pro rata basis while the tenant is occupation beyond the expiry of the tenancy?

franklee

guppy wrote: »

Apologies franklee, I think I missed your point.

That's OK, it gets a bit involved sometimes as there are so many things that could happen in different orders. In post #23 I didn't go into all the details or it would have been too long a post.

guppy wrote: »

Basically you're saying if an invalid S.21 is served, the tenant is still entitled to take it at face value?

Correct. In doing so the tenant is complying with the landlord's request.

guppy wrote: »

Unless he chooses to fight it because it does not suit his ends?

Yes. The tenant can chose to comply with the landlord's request for possession if he likes, regardless of if that request is technically flawed. Or he can choose to fight it if he thinks it worthwhile.

guppy wrote: »

So, the tenant can effectively have his cake and eat it.

Not if the cake the tenant wants is to remain in one place without being served notice :mad: As the S21 was voluntarily served by the landlord, it was the landlord that chose to request the tenant to leave, I think it's more akin to the tenant eating a cake that the landlord has offered the tenant when maybe the landlord secretly wanted to have the cake and eat it himself!

guppy wrote: »

I suppose it would be ridiculous for a LL to take a tenant to court on the basis that the LL's own S.21 was not valid.

He he, yes! That would be hilarious.

guppy wrote: »

I assume rent is payable on pro rata basis while the tenant is occupation beyond the expiry of the tenancy?

Beyond expiry of the S21, yes, calculated to the day. But the tenancy hasn't expired, it continues until the tenant properly leaves or the court ends it.

twirlie

Wow, complex stuff!

I'm pretty convinced that a fresh start is definately the way to go for me personally. I'm aware that my LL has limited finances and isn't the most organised (I pay a top up every month on top of my HB, and it took him 6 months to give me his bank details so I could pay it. I dutifully stuck it in a jam jar every month, until one day he responded to my monthly email for his details with a very frantic phone call asking if he could pick up the money that day! Two hours later he was round to collect it, very suprised that it was all there, including a month in advance. At that point he claimed to be flat broke and desperate!) I might be being snobby here, but if someone who owns several properties is that desperate for £300 then it doesn't leave me feeling too confident about a lot of things - receiving my deposit back, ever getting shot of this damn sofa.. etc etc etc.

We did do an inventory, however it was me who drew it up because I needed it to show the council. Its very basic though. To be honest, I live in a 2004 flat, and there isn't much damage other than cigarette burns on the carpet from the previous tenant, which is detailed in the inventory. If anything, I've improved the standard of the place just by CLEANING it!

Its good to know I can be flexible about looking for a new place though, and that technically I don't need to worry about notice too much. (However I will give notice, mainly because of my concerns about the state of LL's finances, I think it might take him a while to get my deposit money together again!)

Thanks so much everyone for commenting on this thread. Its made me much more aware of the things i need to look for when signing a new lease. I will definately be coming back here when the time comes with my concerns about the new place!

Another question, just out of interest - if I did stay (this IS a nice flat and finding a similar one on HB might be hard) - could I negotiate with the LL? My dad seems to think that because I've been such a good tenant he won't want to lose me. He recons I should basically give him an ultimatum, and say "I'm willing to stay here and sign another years lease only if you a) allow me to install a dishwasher / install one for me, and b) replace the carpets as originally agreed as I have proven over the last year that I will take care of the place and not destroy the new ones.

My dad recons that the above will only cost him £400 if that, however me moving out will cost him at least £500 in agents fees and also the posibility of losing a months rent with the flat sitting empty. Not to mention the chance of getting a dodgy tenant next time round (the last guy had to be forcefully evicted!)

After yesterdays conversation about nearly kicking me out, I'm not so sure of my position with the LL anymore, and would be worried about rocking the boat. :S

What would you guys say if your tenant asked for the above?


Thanks guys!

franklee

twirlie wrote: »

Wow, complex stuff!

Sorry, guppy and I are getting involved in a bit more details than you need.

twirlie wrote: »

I might be being snobby here, but if someone who owns several properties is that desperate for £300 then it doesn't leave me feeling too confident about a lot of things - receiving my deposit back, ever getting shot of this damn sofa.. etc etc etc.

You are right to be concerned. If I may add to your worries, if the landlord hasn't got permission to let from his mortgage lender then should he get repossessed the tenancy agreement with you will not be recognised. So keep a keen eye out for any letters that may be to do with the landlord falling into arrears with his mortgage or with repossession.

twirlie wrote: »

if I did stay (this IS a nice flat and finding a similar one on HB might be hard) - could I negotiate with the LL?

You can try if you want but do get anything agreed in writing. It's funny how things get "forgotten" when they are inconvenient.

twirlie wrote: »

I'm willing to stay here and sign another years lease only if you

Signing a new AST will render the current S21 void. If you agree to stay without a new AST then make sure the existing S21 is withdrawn in writing.

If you do sign a new AST then the landlord will have to protect your deposit in one of the approved schemes, so that will help your deposit issues.

guppy

Hi Twirlie,

I don't think you'd have anything to lose by negotiating with the LL, though I'd want to see those carpets on the floor and that bedroom free of his junk before I signed up for a new tenancy.

I would ask him at the same time you tell him you want to move, so he has some time to arrange those things if he goes for it. If those things are important to you, don't sign up again until they are actually in your flat. Talk is cheap!

I imagine he will squirm and squirm, given his cashflow. Maybe even be offended. I would normally say you hold the power, but I don't know how hard it is to find somewhere on HB?

To be honest he sounds like a bit of a wideboy. Its one thing to have six flats on six 100% mortgages, another to own them all outright. I'd imagine he falls in to the first category.