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Section 21 notice conflicts with the AST terms

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sal_III
sal_III Posts: 1,953 Forumite
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in House buying, renting & selling
I got served section 21 notice on 24.05 to vacate the flat i'm currently a tenant of, with a vacation date of 27.07 which is slightly more than 2 months, so far so good.

But the break clause in my tenancy agreement states:
Start Date: 28th of July 2017 for a term of 18 months
Break Clause:
Should either party wish to terminate the Tenancy, it is agreed that a minimum of 2 month’s advance written
notice must be served on the other party and must not expire within the first 12 months of the Tenancy
commencement date.

Special Clauses
(Individually negotiated with the Tenant)
Any time after ten months of the initial fixed term of this tenancy (or after a similar period following a
fixed term extension to the original tenancy) either party may invoke this break clause by providing a
minimum of two months written notice to the other (such notice to expire on the last day of a rental
period of the tenancy). At the end of such notice the tenancy shall end and all obligations and
responsibilities shall cease; subject nevertheless to any claim by either party against the other in
respect of any breach of any of the terms and conditions of the agreement.

The pre-tenancy reservation form states:
Should either party wish to terminate the Tenancy, it is
agreed that a minimum of 2 month's advance written notice
must be served on the other party and the tenancy must not
expire within the first 12 months of the Tenancy
commencement date. In this Lease the earliest date either
party can give notice will be the 27th of May 2018.

So here comes the question - Is the section 21 notice valid if it was served on 24.05, if the tenancy agreement states the earliest date either party can give notice will be 27.05?

I know that don't have to vacate the premises and can stick it out until court order bla bla bla, but i'm going for a mortgage now and don't want to mess things up by going to court for this.

But on the other hand if the section 21 notice is invalid I will be happy to stick until September when my new home is due to be completed
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  • franklee
    franklee Posts: 3,867 Forumite
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    I do not know the legal status of the pre-tenancy reservation form so am going to ignore that and just look at the tenancy agreement:

    Start Date: 28th of July 2017 for a term of 18 months.

    Any time after ten months of the initial fixed term of this tenancy ... either party may invoke this break clause by providing a minimum of two months written notice to the other

    So I make it the ten months ended on Sunday 27th May 2018. Notice can be served *after* that. You say it was served on 24th May. Is that the date it was hand delivered through the letter box, or posted, what class of post? You need to be careful exactly when it was deemed served see here:

    https://www.landlordlaw.co.uk/landlords/possession-notices/intro

    e.g. First class post - The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day; or if not, the next business day after that day.
  • sal_III
    sal_III Posts: 1,953 Forumite
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    As far as I understand the start date is the on in the 6A form which is 24.05. As for the served date I received it by e-mail on 24.05 at 16:10 and then via post 1 or 2 days later, so 26.05 at the latest

    By the terms of service linked above it should be considered as served on 24.05
    Other electronic method - If the e-mail or other electronic transmission is sent on a business day before 4.30p.m., on that day; or in any other case, on the next business day after the day on which it was sent.
  • franklee
    franklee Posts: 3,867 Forumite
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    edited 16 June 2018 at 5:11AM
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    sal_III wrote: »
    As far as I understand the start date is the on in the 6A form which is 24.05. As for the served date I received it by e-mail on 24.05 at 16:10 and then via post 1 or 2 days later, so 26.05 at the latest

    By the terms of service linked above it should be considered as served on 24.05

    Notice can be served more than once, only one of them has to be valid.

    The email was too soon so we can discount that.

    The one by post is quite tight so I am not sure. It is usually not the arrival day that matters but the deemed service day.

    If it was posted on Thursday 24th first class post, add two days gives 26th but that was a Saturday so next working day is Monday 28th. So I would say deemed served on 28th. Was it first class post, is it postmarked with a date?

    That leaves pondering if the "providing a minimum of two months written notice to the other" refers to service date. I guess so as that's usually the pertinent date.

    As for it being two months notice, if service day is included (I think it is) then the notice period is 28th May inclusive to 27th July inclusive so that is right too.

    Not sure about "must not expire within the first 12 months of the Tenancy commencement date". 27th July 2018 is the last day of the 12 months so is within the first 12 months but so long as the S21 is asking for possession after 27th July I think that is OK too.

    If being super picky you could say "such notice to expire on the last day of a rental period of the tenancy" means it does expire on 27th July which is within the 12 months contravening the "must not expire within the first 12 months of the Tenancy".

    That seems open to interpretation so I would not want to argue the notice in invalid based just the above dates.

    Worth looking at this to see if there is anything more concrete to go on:

    https://markprichard.co.uk/content/documents/180408-Section-21-checker-tool.pdf
  • sal_III
    sal_III Posts: 1,953 Forumite
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    franklee wrote: »
    Worth looking at this to see if there is anything more concrete to go on:

    https://markprichard.co.uk/content/documents/180408-Section-21-checker-tool.pdf
    Haha it still comes to the same ambiguity:
    Was the notice served before the current tenancy was agreed by the tenant and landlord
  • theartfullodger
    theartfullodger Posts: 14,640 Forumite
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    Can't remember the case but an s21 was deemed valid for exercising a break clause. Some years before Form 6a.

    Challenge in court, call Shelter 0808 800 4444 could be a test case.
  • sal_III
    sal_III Posts: 1,953 Forumite
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    edited 16 June 2018 at 10:33AM
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    theartfullodger wrote: »
    Can't remember the case but an s21 was deemed valid for exercising a break clause. Some years before Form 6a.

    Challenge in court, call Shelter 0808 800 4444 could be a test case.

    I don't argue it is valid if exercising a break clause. I argue that it was served (by e-mail) on 24.05.2018 - before the earliest possible day in the break clause which is 10 months after the start date of 27.07.2017 so 28.05.2018.

    If we count a 1st class posted date of 24.05.2018 it's deemed to have been served on 28.05.2018 which is adhering to the contract break clause but fails to give 2 months section 21 notice as the end date in the A6 form is 27.07.2018

    And now there is a plot twist, the LL/Agent already changed the end date on the Tenancy deposit without notifying us of that change, not sure how relevant this is.

    Edit: Not only the date, they changed the tenancy to "periodic" in the Deposit protection certificate too and kept the original start date of 27.07.2017. all without notifying us.
  • da_rule
    da_rule Posts: 3,618 Forumite
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    Surely the notice should expire on the 28th as well? As expiring on the 27th is still within the first 12 months?
  • sal_III
    sal_III Posts: 1,953 Forumite
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    da_rule wrote: »
    Surely the notice should expire on the 28th as well? As expiring on the 27th is still within the first 12 months?
    No as it counts the day AFTER the end date (27.07.2018) in the 6A form - so 28.07.2018, which is in line with the tenancy agreement.

    But the notice was deemed served
    Either on 24.05.2018 via e-mail, in which case it conflicts with the tenancy agreement break clause
    Or on 25.05.2018 if posted on/before 23.05.2018 in which case it conflicts with the tenancy agreement break clause.
    Or on 28.05.2018 if posted on 24.05.2018 (26-27.05 is a weekend) which conflicts with the termination date of 28.07.2018 as it fails to provide 2 months notice

    Unless of course i'm missing something, hence my post to check the sanity of my arguments.
  • franklee
    franklee Posts: 3,867 Forumite
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    edited 16 June 2018 at 5:57PM
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    sal_III wrote: »
    No as it counts the day AFTER the end date (27.07.2018) in the 6A form - so 28.07.2018, which is in line with the tenancy agreement.

    But the notice was deemed served
    Either on 24.05.2018 via e-mail, in which case it conflicts with the tenancy agreement break clause
    Or on 25.05.2018 if posted on/before 23.05.2018 in which case it conflicts with the tenancy agreement break clause.
    Or on 28.05.2018 if posted on 24.05.2018 (26-27.05 is a weekend) which conflicts with the termination date of 28.07.2018 as it fails to provide 2 months notice

    Unless of course i'm missing something, hence my post to check the sanity of my arguments.
    As I said forget the email notice as that is clearly invalid. Focus on the posted one.

    You've changed the S21 expiry date from 27th to 28th! Which is it?

    Assuming 27th I still think your best bet if all you have is dates is to say the Break Clause and Special Clauses make it impossible for a s.21 notice to expire on the last day of the 12 months.

    Rental period 28th to 27th of following month.

    "such notice to expire on the last day of a rental period of the tenancy" so that would be the 27th.

    and

    "must not expire within the first 12 months of the Tenancy commencement date" 27th July is within the first 12 months of 28th of July 2017 to 27th July 2018.

    It looks to me that in trying to be clear the agent has tied themselves up in unnecessary restrictions and contradicted themselves. But as I said before that needs a certain pickiness that any judge looking at a possession claim may think too picky on the day. You could try the argument on the agent initially but you would need to be accurate in your explination and not mix dates up as you have done here.

    TBH I would prefer something more clear cut than that but it is your call. Are you sure all the deposit serving of prescribed information, EPC, right to rent booklet etc. was all done right?
  • sal_III
    sal_III Posts: 1,953 Forumite
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    franklee wrote: »
    You've changed the S21 expiry date from 27th to 28th! Which is it?
    ~snip~
    You could try the argument on the agent initially but you would need to be accurate in your explination and not mix dates up as you have done here.

    TBH I would prefer something more clear cut than that but it is your call. Are you sure all the deposit serving of prescribed information EPC, right the rent booklet etc. was all done right?

    It's an unholy mess. The date in the 6A states:
    You are required to leave the below address after [27.07.2018 ]
    1. If you do not leave,your landlord may apply to the court for an order under section 21(1) or (4) of the Housing Act 1988 requiring you to give up possession.

    The Agency have already scheduled the checkout for 27.07.2018, which is even better because it's definitely less than 2 months from the date the notice is deemed served by post - the earliest possible is either 28.05.2018 (Monday). Alternatively if its earlier than 25.05.2018 (Friday) it conflicts with the special break clause.

    I will definitely try the argument on the Agency first, if they can come up with a compelling evidence/argument/explanation I will think how to handle the situation. Wife and kids are going to be with grandparents for several week during the "turmoil", so i'm not afraid if it gets hairy. Plus I have where to go if I have to vacate on 27.07 after all, it just going to be a major hassle and double expense for moving, cleaning etc.

    I have fine combed the rest of it and it's valid on all other accounts. Not sure if the messing with the TDS on 29.05.2018 has any bearings.
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