Section 21 Notice Period

[GloomMonger]

Probably been asked before, but is it normal to sign a Section 21 when renewing the contract. We signed up for another year in January and have been asked to sign the Section 21 which is dated January 2013. Should I sign?

[Squeeky]

sometimes called the sword of Damocles. So they will be kicking you out one way or another in a years time or try to get you to sign another contract (pay more fees) in a year. If you are happy with only a years tenure and want to move on that date, go for it. This kind of 'sharp' practice by EA's is something I personally would avoid. Admittedly they can also give you a section 21 at any point after the fixed term, all fun and games.

[GloomMonger]

sometimes called the sword of Damocles. So they will be kicking you out one way or another in a years time or try to get you to sign another contract (pay more fees) in a year. If you are happy with only a years tenure and want to move on that date, go for it. This kind of 'sharp' practice by EA's is something I personally would avoid. Admittedly they can also give you a section 21 at any point after the fixed term, all fun and games.

Am I obliged to sign it?

[Squeeky]

Am I obliged to sign it?

I don't think you have to sign it. But that doesn't mean it isn't valid as it is a notice, rather than a contract.

[zebbedee]

They can issue a section 21 at any time but it must be at least 2 rental periods (or 8 weeks if rent is paid weekly) before possession is required. If a valid s21 is not issued then a court cannot issue an eviction order should that be required. There is nothing to sign, its just a notice that possession is required by the end of the tenancy, the agents will use it to try and scare you into paying up for renewal of the contract at the end of the term, but if you are good tenants only a foolish LL would want possession (and a void period and the risk of getting god knows what in instead of you)^*, if the agents enter into negotiations on renewal the s21 becomes void (check on that) and you can allow the tenancy to lapse to a statutory periodic and a new s21 would be required.

http://www.tenancyagreementservice.co.uk/section-21-notice-to-quit.htm

They'll be wanting you to sign it so they can prove receipt but whether you sign or not you have recieved it and therefor it is a valid notice assuming all details are present and correct and it is of the correct format.

*The LL of course may have intention to sell at the end of your AST in which case having been goven notice they can seek possession, but even then a sensible LL would want you to go statutory and have the money until sale (with obvious reduction in rent for the inconvenience)

Edited February 14, 2012 by zebbedee

[GloomMonger]

Thanks Guys, I never used to, but after reading HPC for a number of years I now have a deep distrust of estate agents!

[porca misèria]

Probably been asked before, but is it normal to sign a Section 21 when renewing the contract. We signed up for another year in January and have been asked to sign the Section 21 which is dated January 2013. Should I sign?

Am I the only one who raises the issue of Section 21 abuse before I ever tell an agent I'm interested in a place? Along with asking them to confirm that the landlord either owns outright or has a legitimate BTL mortgage.

[lastlaugh]

My advice is not to sign the S21 notice. It is a renewal, not a new contract, you are already in the property, so you don't need to bend to the whim of the LA to get the property. No point argueing with them, just say "thank you, but I've taken advice from my solicitor not to sign it".

This subject has been covered a few times on this forum. In the past it was a statutory requirement to serve a S21 before the start of the tenancy, this is no longer the case. Some LA's still do this because they are lazy, stupid or both. It offers a LL no extra protection, and actually undermines their relationship with a tenant. ie. Once you've been served a S21 at the beginning of a tenancy, a tenant is no longer obliged to give a notice to quit at the end. A tenant can simply walk out the door with no notice.

A S21 at the beginning of a tenancy may be correctly served, but the intention of the legislation is not for it to be abused in this way. Judges in eviction proceedings are wise to this type of sharp practice and will most likely ask a LL to serve a new S21 notice anyway.

[zebbedee]

My advice is not to sign the S21 notice.

It matters not whether signed or not

In the past it was a statutory requirement to serve a S21 before the start of the tenancy

You sure about that

Once you've been served a S21 at the beginning of a tenancy, a tenant is no longer obliged to give a notice to quit at the end. A tenant can simply walk out the door with no notice.

This is the case regardless, only if you stay beyond the end date are you required to give notice IMHO, the contract is for a period of x months, at the end of the contract your relationship with the LL ceases unless you remain in which case your relationship becaomes a statutory contractual one.

[lastlaugh]

It matters not whether signed or not

You sure about that

This is the case regardless, only if you stay beyond the end date are you required to give notice IMHO, the contract is for a period of x months, at the end of the contract your relationship with the LL ceases unless you remain in which case your relationship becaomes a statutory contractual one.

Hi Zebbedee,

The AST was first introduced about 25 years ago. The previous forms of tenancy made it very hard for landlords to regain possession, and resulted in the phenomenon of sitting tenants. Initially it was a statutory requirement to serve the S21 prior to the commencement of the AST. Indeed the tenancy would not be an AST without the correct serving of the AST. Hence LAs and LLs were at pains to get the S21 signed and returned, as without it there was a large risk the tenancy would default to a sitting tenancy.

The Housing Act was subsequently changed (in 1996 I think) so that the default tenancy now is an AST, and so there is no longer a requirement to serve the S21 at the beginning of the tenancy.

An AST may be described as having a fixed term, but this is misleading. The fixed term only relates to the time in which a S21 Notice cannot be applied. The fixed term must be for a minimum of 6 months, but there is no maximum limit. It is usual for the rent to be fixed for the same period but there is no requirement for this to be the case. A LL and tenant are free to negotiate whatever they like within these constraints. Thus an AST may have, for instance, a fixed term of say 13 months. A LL then cannot serve a S21 with a date prior to this 13 month period.

From the tenants point of view the 13 month fixed term is purely security of tenure. The fixed term is otherwise meaningless and the tenant can only end their obligations by giving notice. The tenant should not just walk out at the end of the fixed term without giving notice, otherwise the tenant will still be liable for a sum of rent equivalent to the notice period. However, if a LL has served a S21 there is now no need for a tenant to give notice and the tenant is free to leave on the date specified in the S21, in this case the end of the fixed term, with no further obligation to give any notice.

Zebbedee you are right that the S21 does not need to be signed. That indeed seems to be the law. However in the real world, like I said, judges are wise to sharp practice, and an unsigned 12 month old S21, with no proof of posting, and no proof of receipt, is just a piece of paper in a LA's office. It's your word against theirs, and a judge is at liberty to insist that a new S21 is served.

I still advise the OP not to sign the S21. The only purpose of serving a S21 at the start of a tenancy is to wind you up and apply psychological pressure to you.

[zebbedee]

From the tenants point of view the 13 month fixed term is purely security of tenure. The fixed term is otherwise meaningless and the tenant can only end their obligations by giving notice. The tenant should not just walk out at the end of the fixed term without giving notice, otherwise the tenant will still be liable for a sum of rent equivalent to the notice period. However, if a LL has served a S21 there is now no need for a tenant to give notice and the tenant is free to leave on the date specified in the S21, in this case the end of the fixed term, with no further obligation to give any notice.

6 How can I end my tenancy and leave?

If your tenancy is an Assured or Assured Shorthold Tenancy you cannot end it until the end of any fixed term which is specified in the Tenancy Agreement, unless the Landlord agrees.

On the last day of the fixed term (if any) you can leave the property, whether or not you have told the Landlord you intend to do so. However, you should give the Landlord as much notice as possible as a courtesy, and in order to avoid any bad feelings. Once the fixed term (if any) has ended the tenancy will become a periodic tenancy if you remain in the property and the Landlord does not agree a brand new tenancy with you. In this case you can end the tenancy by giving the Landlord one month's notice in writing (if the rent is paid monthly) or 4 weeks notice (if the rent is paid weekly). If your tenancy is a Company Let you cannot end it early unless the Landlord agrees. If your tenancy is a Protected or Regulated tenancy the method by which you can end it will be specified in the lease.

http://www.simplyrent.co.uk/tntfaq.htm

I agree not to bother signing a notice, but if served correctly and they were to say have 2 witnesses to say it had been served then a judge has no room for manouver and must issue a possession order, he CANNOT make the law up as he goes along.

That said, it's just that the LA's are morons and think it gives them a stick to beat you with at the end when in fact the moment they intimate a renewal is on the cards the s21 becomes void (by doing so they have entered into negotiations). They must then issue a new s21 if you don't play ball which they would have had to do anyway if one had never been served before.

Edited February 16, 2012 by zebbedee

[Damocles]

Initially it was a statutory requirement to serve the S21 prior to the commencement of the AST.

It is true that a notice needed to be served, but it was not a section 21 notice, but a quite different notice served under section 20.

[@contradevian]

That said, it's just that the LA's are morons and think it gives them a stick to beat you with at the end when in fact the moment they intimate a renewal is on the cards the s21 becomes void (by doing so they have entered into negotiations). They must then issue a new s21 if you don't play ball which they would have had to do anyway if one had never been served before.

Wish I'd known that a few months ago. Anyway academic now.

[Damocles]

That said, it's just that the LA's are morons and think it gives them a stick to beat you with at the end when in fact the moment they intimate a renewal is on the cards the s21 becomes void (by doing so they have entered into negotiations). They must then issue a new s21 if you don't play ball which they would have had to do anyway if one had never been served before.

I do not think that can be right.

If the conditions set out in section 21(1) or (4) (as the case may be) are met, then the court must order possession.

In the case of a section 21(1) notice the only conditions are that (i) the fixed term has ended and that there is no tenancy in existence other than a periodic tenancy and (ii) the notice was served.

In the case of a section 21(4) notice the only conditions are that (i) the notice was served and (ii) it specifies the correct date. If an agreement for a new fixed term has been made then the notice is no longer applicable because section 21(4) only applies where the property is let on a periodic tenancy.

In both cases merely entering into negotiations will not invalidate the notice.

[zebbedee]

I do not think that can be right.

If the conditions set out in section 21(1) or (4) (as the case may be) are met, then the court must order possession.

In the case of a section 21(1) notice the only conditions are that (i) the fixed term has ended and that there is no tenancy in existence other than a periodic tenancy and (ii) the notice was served.

In the case of a section 21(4) notice the only conditions are that (i) the notice was served and (ii) it specifies the correct date. If an agreement for a new fixed term has been made then the notice is no longer applicable because section 21(4) only applies where the property is let on a periodic tenancy.

In both cases merely entering into negotiations will not invalidate the notice.

The LL 'requires possession', therefor if the parties enter into negotiates on renewal of the contract, initiated by the LL, the LL is in doing so, by default, making a declaration that they no longer seek possession and thus the s21 can no longer take effect.

http://blog.painsmith.co.uk/2010/08/23/after-a-section-21-notice-expires/

(1)Without prejudice to any right of the landlord under an assured shorthold tenancy to recover possession of the dwelling-house let on the tenancy in accordance with Chapter I above, on or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy, a court shall make an order for possession of the dwelling-house if it is satisfied—

(a)that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than [F1an assured shorthold periodic tenancy (whether statutory or not)]; and

(b)the landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than two months’ notice [F2in writing] stating that he requires possession of the dwelling-house.

my bold obviously from the act

Edited February 18, 2012 by zebbedee

[Damocles]

We can focus on each requirement in turn:

(a) that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than an assured shorthold periodic tenancy (whether statutory or not)

The question to be asked is whether a fixed term assured tenancy is in existence. If it is, the condition is not fulfilled. If it is not, the condition is fulfilled. There is no halfway house. If a tenancy is being negotiated it is not yet in existence. Accordingly merely entering negotiations will not invalidate the notice. Since a new tenancy for three years or less does not need to be in writing the parties do though need to take care that they do not agree one without intending to - that I think is what Pain Smith are referring to.

(b ) the landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than two months’ notice in writing stating that he requires possession of the dwelling-house

All that needs to be asked is whether the notice was served by the landlord. If if was served the condition is fulfilled. What the landlord's intentions were at the time of serving the notice or later are immaterial and the court is not required to look into them.

As with the question of whether a tenant has to give notice to quit after a section 21 notice is served, the form the notice is required to take is unfortunate and inclined to give rise to confusion. Indeed there is much in section 21 which is unfortunate.

[zebbedee]

We can focus on each requirement in turn:

(a) that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than an assured shorthold periodic tenancy (whether statutory or not)

The question to be asked is whether a fixed term assured tenancy is in existence. If it is, the condition is not fulfilled. If it is not, the condition is fulfilled. There is no halfway house. If a tenancy is being negotiated it is not yet in existence. Accordingly merely entering negotiations will not invalidate the notice. Since a new tenancy for three years or less does not need to be in writing the parties do though need to take care that they do not agree one without intending to - that I think is what Pain Smith are referring to.

(b ) the landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than two months’ notice in writing stating that he requires possession of the dwelling-house

All that needs to be asked is whether the notice was served by the landlord. If if was served the condition is fulfilled. What the landlord's intentions were at the time of serving the notice or later are immaterial and the court is not required to look into them.

As with the question of whether a tenant has to give notice to quit after a section 21 notice is served, the form the notice is required to take is unfortunate and inclined to give rise to confusion. Indeed there is much in section 21 which is unfortunate.

Fair enough, I can see that, but each time I have recieved from the agents details of renewal it has been of a form that says they are willing to renew (and I think that is general) and to sign and return the documents. I cant remember the wording but it would seem to me that in the wording is an expression of thier agreement to renew, if I agree to that then a new tenancy exists^*. Indeed the last time they were only wanting the same terms with no finge benefits and we felt that having got a rent reduction the last time better not to push it, so we decided to go statutory periodic and save the fees-they had expressed desire we stay so why pay for nothing.

Although I have never been under the cosh with an s21.

* They even got a bit panicy when we didn't respond (we were going statutory so no need to) and sent out another couple of letters (presumably they feared we would leave on the last day of the contract)

Edited February 21, 2012 by zebbedee

[Damocles]

The problem (or one of the problems) with section 21 notices is that they can be used a negotiating tool. What is needed is for there to be a time limit within which the landlord must start proceedings, failing which he should be prevented from serving another until some specified period has elapsed.

[zebbedee]

I just had another thought on this, was the s21 issued prior to your signing the renewal as if so it is invalid, it cannot be issued before the tenancy exists.

http://www.letlink.co.uk/letting-factsheets/factsheets/factsheet-21-section-21-notice-requiring-possession-of-an-assured-shorthold-tenancy.html

Prior can be seconds, if dated the same day as the renewal you can argue that it was before.

Edited February 23, 2012 by zebbedee