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Beware The Sword Of Damocles

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I wanted to bring your attention to a deceptive practice being used by Landlords the cheat tenants out of their statutory right to two months notice. It has been dubbed the [b]Sword of Damocles[/b], as under this regime, the LL can ask you to leave at any time without notice.

Firstly, the most certain way for a LL to evict you is by issuing you with a section 21 notice requiring possession of the house you're living in. It is a no fault notice which means that the LL doesn't need any reason to issue it. The notice must be issued at least two months before the LL wants you to leave with the following provisos:

*It cannot expire (that means its time to move out) during a fixed term lease
*It cannot expire in the first six months of a tenancy
*Anytime negotiations are entered into regarding extending the lease, [u]the s21 is invalidated[/u] and the LL must issue a new s21 notice giving you a further 2 months notice to evict you. (But in court, the onus of proof is on the tenant so get any negotiations in writing)

It looks something like this: [url="http://www.letlink.co.uk/GeneralInfo/General_possession/S21_1_B.pdf"]http://www.letlink.co.uk/GeneralInfo/Gener...ion/S21_1_B.pdf[/url]

This is all above board when used within the spirit of the law and gives the tenant at least two months to find alternative accommodation.

Where the s21 becomes the Sword of Damocles is when the LL issues you with an s21 notice RIGHT AT THE BEGINNING OF THE TENANCY, to expire at the end of your fixed term. This is even when you have taken the tenancy under the understanding that it is a long term arrangement.

If you question the notice, the LL will say something like "it's just for insurance purposes" or "its just paperwork don't worry about it" or "if we get on well together we'll just ignore it" or some soothing fob off like that.

But in reality, once the fixed term expires, you have no right to notice as YOU HAVE ALREADY RECEIVED IT. The landlord can go to court at anytime for an immediate eviction order. They rely on the tenant being either not aware of its implications or unaware they have even been served a possession notice.

There are two instance where this is invalidated
1/ when you sign another fixed term lease
2/ when you negotiate to extend the lease, even if it is to say the lease will lapse into a periodic tenancy.

The danger point for the tenant is
1/ at the expiry of the fixed term before signing a new fixed term. The LL can change his mind and ask you to leave immediately
2/ when the fixed term expires and the tenancy is periodic. The LL can change his mind and ask you to leave immediately at any time.

[u]How to protect yourself and maintain your right to two months notice:[/u]

As stated, the s21 is invalidated whenever you both start negotiating to extend the terms of the lease, whether its for a new lease or simply for the lease to continue on a month to month basis (periodic). However you need to prove this should the landlord immediately apply to the court for a possession order.

If you have been served a Sword of Damocles s21 and the intention of both you and the LL is to stay on past the fixed term, you must contact the landlord and start discussions about staying on two months before your fixed term expires, [u][b]but it must be in writing from the LL[/b][/u], do ensure you insist on this to be done[u] in writing[/u].

If the LL won't play ball, immediately look for alternative accommodation for when your fixed term expires, because from then on, you have no right of notice.

So to be clear, either:
1/ Get negotiations in writing two month before fixed term expires, or
2/ Leave

An important point; if you are living under an expired s21, you can vacate at any time[u] without[/u] giving notice, because you have already received notice to leave.

I believe the Sword of Damocles is dishonest, deceitful and sneaky and relies on tenants ignorance of the law to be in place.

Good argument on this here: [url="http://www.landlordzone.co.uk/forums/showthread.php?t=6803"]http://www.landlordzone.co.uk/forums/showthread.php?t=6803[/url] Edited by wayneL

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[quote name='wayneL' post='682294' date='Jun 30 2007, 06:24 AM']I wanted to bring your attention to a deceptive practice being used by Landlords the cheat tenants out of their statutory right to two months notice. It has been dubbed the [b]Sword of Damocles[/b], as under this regime, the LL can ask you to leave at any time without notice.

Firstly, the most certain way for a LL to evict you is by issuing you with a section 21 notice requiring possession of the house you're living in. It is a no fault notice which means that the LL doesn't need any reason to issue it. The notice must be issued at least two months before the LL wants you to leave with the following provisos:

*It cannot expire (that means its time to move out) during a fixed term lease
*It cannot expire in the first six months of a tenancy
*Anytime negotiations are entered into regarding extending the lease, [u]the s21 is invalidated[/u] and the LL must issue a new s21 notice giving you a further 2 months notice to evict you. (But in court, the onus of proof is on the tenant so get any negotiations in writing)

It looks something like this: [url="http://www.letlink.co.uk/GeneralInfo/General_possession/S21_1_B.pdf"]http://www.letlink.co.uk/GeneralInfo/Gener...ion/S21_1_B.pdf[/url]

This is all above board when used within the spirit of the law and gives the tenant at least two months to find alternative accommodation.

Where the s21 becomes the Sword of Damocles is when the LL issues you with an s21 notice RIGHT AT THE BEGINNING OF THE TENANCY, to expire at the end of your fixed term. This is even when you have taken the tenancy under the understanding that it is a long term arrangement.

If you question the notice, the LL will say something like "it's just for insurance purposes" or "its just paperwork don't worry about it" or "if we get on well together we'll just ignore it" or some soothing fob off like that.

But in reality, once the fixed term expires, you have no right to notice as YOU HAVE ALREADY RECEIVED IT. The landlord can go to court at anytime for an immediate eviction order. They rely on the tenant being either not aware of its implications or unaware they have even been served a possession notice.

There are two instance where this is invalidated
1/ when you sign another fixed term lease
2/ when you negotiate to extend the lease, even if it is to say the lease will lapse into a periodic tenancy.

The danger point for the tenant is
1/ at the expiry of the fixed term before signing a new fixed term. The LL can change his mind and ask you to leave immediately
2/ when the fixed term expires and the tenancy is periodic. The LL can change his mind and ask you to leave immediately at any time.

[u]How to protect yourself and maintain your right to two months notice:[/u]

As stated, the s21 is invalidated whenever you both start negotiating to extend the terms of the lease, whether its for a new lease or simply for the lease to continue on a month to month basis (periodic). However you need to prove this should the landlord immediately apply to the court for a possession order.

If you have been served a Sword of Damocles s21 and the intention of both you and the LL is to stay on past the fixed term, you must contact the landlord and start discussions about staying on two months before your fixed term expires, [u][b]but it must be in writing from the LL[/b][/u], do ensure you insist on this to be done[u] in writing[/u].

If the LL won't play ball, immediately look for alternative accommodation for when your fixed term expires, because from then on, you have no right of notice.

So to be clear, either:
1/ Get negotiations in writing two month before fixed term expires, or
2/ Leave

An important point; if you are living under an expired s21, you can vacate at any time[u] without[/u] giving notice, because you have already received notice to leave.

I believe the Sword of Damocles is dishonest, deceitful and sneaky and relies on tenants ignorance of the law to be in place.

Good argument on this here: [url="http://www.landlordzone.co.uk/forums/showthread.php?t=6803"]http://www.landlordzone.co.uk/forums/showthread.php?t=6803[/url][/quote]

Yikes! Thanks for the heads up wayneL. Landlords, nearly as bad as banks!

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My landlord is sound as a pound, called him about my bed being uncomfortable and told him what I wanted and was only two happy to replace it.

One chunky brown leather bedstead and pocket sprung mattress coming my way in 2 weeks time.

:D Edited by FrozenOut

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[quote name='Ologhai Jones' post='682321' date='Jun 30 2007, 07:53 AM']For the S21 to be valid, does it require the tenant's signature?[/quote]
No.

But LLs often get T to sign. I think there needs to be evidence that it was served. i.e. registered mail or a witness etc., but will double check that one.

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[quote name='FrozenOut' post='682317' date='Jun 30 2007, 07:48 AM']My landlord is sound as a pound, called him about my bed being uncomfortable and told him what I wanted and was only two happy to replace it.

One chunky brown leather bedstead and pocket sprung mattress coming my way in 2 weeks time.

:D[/quote]
Yes, there are some very good landlords. This Sword of Damocles is even controversial among them with many recognizing it as dishonest. Many will not do this at all.

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[quote name='FrozenOut' post='682317' date='Jun 30 2007, 08:48 AM']My landlord is sound as a pound, called him about my bed being uncomfortable and told him what I wanted and was only two happy to replace it.

One chunky brown leather bedstead and pocket sprung mattress coming my way in 2 weeks time.

:D[/quote]

Will he make you cocoa & tuck you in at night?

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[quote name='Livininabox' post='682342' date='Jun 30 2007, 09:10 AM']Will he make you cocoa & tuck you in at night?[/quote]


Not so sure about that, but originally I called him and said I had no qualms in paying for it all and he said, no he should pay, a real nice fella but this is probably due to him being in the game a long time, certainly not one of these new breeds of "Landlord"

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I run half of my properties myself, with a letting agent for the other half. I have since found out that the LA issues the s21 at the start of the tenancies also. I can see that they do it to benefit me, but I don't agree with it. It's not very comforting for the tenant to be told "here is the 6 month security you are looking for, but here's the notice to get out. But don't worry, I won't be enforcing it". I will be creating new leases shortly so it won't be a problem.

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[quote name='Ologhai Jones' post='682321' date='Jun 30 2007, 07:53 AM']For the S21 to be valid, does it require the tenant's signature?[/quote]
This all I've been able to find.

[quote][url="http://www.letlink.co.uk/letting-factsheets/factsheets/factsheet-21---section-21---notice-requiring-possession-of-an-assured-shorthold-tenancy.html"]http://www.letlink.co.uk/letting-factsheet...ld-tenancy.html[/url]
Service Of Notice:

A section 21 notice may be served by post or in person. The courts will recognise the day of postal service as the day on which the letter would normally have arrived. We suggest that the sending of the notice is witnessed by a colleague. When using postal service, it is recommended that the notice be sent by either registered or recorded delivery and that a minimum of three working days is allowed for the notice to arrive.[/quote]

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[quote name='BigAl' post='682464' date='Jun 30 2007, 10:53 AM']I run half of my properties myself, with a letting agent for the other half. I have since found out that the LA issues the s21 at the start of the tenancies also. I can see that they do it to benefit me, but I don't agree with it. It's not very comforting for the tenant to be told "here is the 6 month security you are looking for, but here's the notice to get out. But don't worry, I won't be enforcing it". I will be creating new leases shortly so it won't be a problem.[/quote]

I have been a tenant for many years and have had S21 served on me at the start of tenancy's by agents on several occassions. As I have always signed fixed term agreements I never had a problem with it. In fact, I do not see why it is a problem for anyone.

What is deceitful - maybe I missed something? Surely a S21 simply says at the end of the tenancy term (that has been agreed with the LL already) the LL would like to get the property back. Edited by Wad

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With an s21 notice you can get 'accelerated possession' I believe??

How long does this take, from posting the form to the court, to having the eviction order?

1 month?

More? Less?

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The joys of renting eh?

Though it's cheaper than buying at the moment, it would take a hell of a lot to get me to go back to renting. It's a pretty miserable (and stressful) experience.

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[quote name='Cletus VanDamme' post='682860' date='Jun 30 2007, 07:12 PM']The joys of renting eh?

Though it's cheaper than buying at the moment, it would take a hell of a lot to get me to go back to renting. It's a pretty miserable (and stressful) experience.[/quote]

Hmm, how much exactly?

I went to look at a house last year, 30s detached in Surrey. £525,000.

Today looked at the house next door, up for rent, £1500/month. Identical property, although the rental one was slightly better, in that the extension was slightly bigger.

By my reckoning, excluding any HPI in the mean time, the £525,000 works out £31,500/year Interest/Only (@6%, which is pretty good these days)

And the rent, £18,000 a year.

£13,500 a year saving.

And HPC-proof....

Presumably true value of the house would be somewhere around £300,000 based on current yields?

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[quote name='Cletus VanDamme' post='682860' date='Jun 30 2007, 07:12 PM']The joys of renting eh?

Though it's cheaper than buying at the moment, it would take a hell of a lot to get me to go back to renting. It's a pretty miserable (and stressful) experience.[/quote]

Depends on the landlord. The last two were great until it came to getting the deposit back. Two lost now and counting as they both head to the bankruptcy courts.

Loving the current arrangements in the mansion block. The landlord pays the service charge and we have a delightful caretaker who sorts most of the things out while I am at work.

But I agree with you. Life on the bottom rung of the rental ladder with amateur BTLs is unpleasant.

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[quote name='Cletus VanDamme' post='682860' date='Jun 30 2007, 06:12 PM']The joys of renting eh?

Though it's cheaper than buying at the moment, it would take a hell of a lot to get me to go back to renting. It's a pretty miserable (and stressful) experience.[/quote]

A lot depends on the situation. Owning (or buying rather) can be more stressfull. If you are settled in your area, own outright or have a small mortgage, of course owning is less stressful.

But with a whopping mortgage plus all maintenance, repairs, insurances, refurbishment costs etc., owning may be far more stressful. If a stay in an area is somewhat tempory, it can be extremely costly buying and selling frequently. Unless there is rampant HPI, is can be financially devastating.

With a good landlord, renting is no stress at all. Even the SoD situation above can be alleviated by the simple tactic outlined in the above post.

Horses for courses mate.

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[quote name='Wad' post='682787' date='Jun 30 2007, 04:35 PM']I have been a tenant for many years and have had S21 served on me at the start of tenancy's by agents on several occassions. As I have always signed fixed term agreements I never had a problem with it. In fact, I do not see why it is a problem for anyone.

What is deceitful - maybe I missed something? Surely a S21 simply says at the end of the tenancy term (that has been agreed with the LL already) the LL would like to get the property back.[/quote]
Wad,

There is no problem if you intend to move out at the end of the fixed term, and there is no problem if you sign a lease renewal... or if your landlord acts honourably

The problem is in two situations:

1/ Even when signing a lease renewal, you are vulnerable at the end of the expiring lease. If the LL changes his mind for any reason, say right at the end of the expiring lease, you have no right of two months notice, BECAUSE YOU HAVE ALREADY RECEIVED IT. The LL can insist you move immediately and immediately apply to the court for a possession order. This may even show up on your credit check later, making new LLs suspicious of you.

2/ If the fixed term lapses into a statutory periodic tenancy (month to month), you have no right of 2 months notice AT ALL, because once again, YOU HAVE ALREADY RECEIVED IT. The LL can insist you move immediately and immediately apply to the court for a possession order at any time without even notifying you.

The deception is this: this arrangement is applied specifically to deny tenants of their right to two months notice. Essentially it to protect themselves from rogue tenants, but a landlord may invoke the above against any tenant, for any reason or imagined sleight.

It is a removal of your statutory rights under the Housing Act 1988, via a loophole that means the s21 is valid [u]indefinately[/u], unless the tenant protects themselves as outlined above.

This would entail writing a letter or email to the effect of:

[indent]"Dear Mr/Mrs LL,

Our lease is expiring in two months time and we note that you have issued us with a section 21 possession order to expire along with the lease.

We are happy with the house and would like to stay on a periodic basis/sign a new lease if that is agreeable to you.

Would you please indicate by return whether you would like us to stay as your tenants on the above basis at the conclusion of our lease.

As you can appreciate, if you do require possession at the conclusion of our lease, we need to make arrangements for alternative accommodation.

Yours sincerely,

Mr & Mrs tenant.[/indent]

If the LL answers in the affirmative, the Sword of Damocles S21 becomes invalid, restoring your right to 2 months notice as a new s21 would have to be issued.

Wad, think of why this tactic has been dubbed the [url="http://en.wikipedia.org/wiki/Sword_of_damocles"]Sword of Damocles[/url].

Cheers

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[quote name='Cletus VanDamme' post='682860' date='Jun 30 2007, 07:12 PM']The joys of renting eh?

Though it's cheaper than buying at the moment, it would take a hell of a lot to get me to go back to renting. It's a pretty miserable (and stressful) experience.[/quote]

Damn right.

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Dear Landlord/Landlady (LandPerson ?),

I have just signed a six months Shorthold Assured Tenancy with yourself and notice that
you have attached an S21 eviction notice which will come into force in four months
time, giving me two months to vacate the property by the last day of the six month
tenancy.

I shall therefore apply to yourself in writing in four months time for a second Shorthold
Assured Tenancy for a fixed six month period, to begin on the last day of the
present six month tenancy.

If you are unwilling at that time to enter into a second, full six months (not a month
to month "run-on the current lease) then I shall be making arrangements to leave
at the expiry of the S21 notice which you have served.

Regards

====================================================

This makes your intention clear of having separate, consecutive, six month periods
agreed.

Alternatively, negotiate a lower rent for a 12 month lease.

Any sensible landlord will jump at the chance, given a good tenant, of course.

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[quote name='wayneL' post='683141' date='Jul 1 2007, 08:56 AM']With a good landlord, renting is no stress at all. Even the SoD situation above can be alleviated by the simple tactic outlined in the above post.

Horses for courses mate.[/quote]

I agree, but the problem is finding a good landlord. In my 10 years of renting in London prior to buying, my experience was that landlords fell into one of 3 categories:

1/ The lazy old boy: doesn't charge much rent, but lets his places fall into disrepair. Won't spend a penny on them, so you endure thin brown carpets, tatty orange curtains, woodchip wallpaper and furniture rescued from skip. Tends to turn up unannounced, but happy to let you stay as long as you want.

2/ The dynamic duo: husband and wife professionals. Bloke usually laid back, wife a nightmare, always checking up on you, seeing if you have visitors who stay for more than a few days (and accuse you of subletting if you do). Do all the maintenance themselves, so bodged DIY jobs with lots of mastic. Tend to charge a highish rent but think they are doing you a favour by letting you stay there.

3/ The guy with the spare property: he's the SoD type, just letting it out until he decides to sell to finance purchase of new property with his wife/GF - but won't tell you this when you sign the lease. Liable to pull the rug from under you at any point.

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[quote name='Cletus VanDamme' post='683273' date='Jul 1 2007, 10:56 AM']I agree, but the problem is finding a good landlord. In my 10 years of renting in London prior to buying, my experience was that landlords fell into one of 3 categories:

1/ The lazy old boy: doesn't charge much rent, but lets his places fall into disrepair. Won't spend a penny on them, so you endure thin brown carpets, tatty orange curtains, woodchip wallpaper and furniture rescued from skip. Tends to turn up unannounced, but happy to let you stay as long as you want.

2/ The dynamic duo: husband and wife professionals. Bloke usually laid back, wife a nightmare, always checking up on you, seeing if you have visitors who stay for more than a few days (and accuse you of subletting if you do). Do all the maintenance themselves, so bodged DIY jobs with lots of mastic. Tend to charge a highish rent but think they are doing you a favour by letting you stay there.

3/ The guy with the spare property: he's the SoD type, just letting it out until he decides to sell to finance purchase of new property with his wife/GF - but won't tell you this when you sign the lease. Liable to pull the rug from under you at any point.[/quote]
Yeah there are those,

1/ will be apparent upon viewing the property.

2/ can be managed by knowing your rights. Always checking on you is breaching your right to quiet enjoyment. You can yell them to piss off, or do them for harassment.

3/ This one is a bit hard to pick unfortunatey

I'm renting due to moving around a lot and have never even met the landlords. The agent has always manged. One agent was a bit crappy, but I gave them more grief than they gave me through knowing the tenancty law.

Otherwise have had nothing but good experiences, but must admit have been careful to try and sus out the situation with the Landlord

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We were handed an eviction notice the day we moved into our last house. Rental period was an agreed one year and the notice was post dated to coincide with the end of our agreement. As it was the first time we had rented I thought this was normal procedure, although we have not been given notice in our new house (also for one year).

Anyway, we stayed for our year, during which time the letting agent did any necessary work (a couple of grand's worth) promptly and efficiently and our deposit has just been returned in full, exactly one month after we vacated, as per the agreement.

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[quote name='The_Oldie' post='684691' date='Jul 2 2007, 06:07 PM']We were handed an eviction notice the day we moved into our last house. Rental period was an agreed one year and the notice was post dated to coincide with the end of our agreement. As it was the first time we had rented I thought this was normal procedure, although we have not been given notice in our new house (also for one year).

Anyway, we stayed for our year, during which time the letting agent did any necessary work (a couple of grand's worth) promptly and efficiently and our deposit has just been returned in full, exactly one month after we vacated, as per the agreement.[/quote]

Exactly (see my point earlier) - seems to have worked just fine for you as well as for me. You stayed as long as you expected and the LL did everything expected of them. The S21 did you no harm. Still not really sure why people think it is underhand. I take the point that WayneL made in reply to my post earlier but it seems like being caught out by a S21 is really more to do with the tenant being unsure about when they want to leave the property.

I guess teh advice is that if you sign up for a fixed term tenancy and then you change your mind the only safe way to proceed is sign a new contract - not just let it run on into a periodic tenancy unless its just for a few months.

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[quote name='Wad' post='684749' date='Jul 2 2007, 06:17 PM']Exactly (see my point earlier) - seems to have worked just fine for you as well as for me. You stayed as long as you expected and the LL did everything expected of them. The S21 did you no harm. Still not really sure why people think it is underhand. I take the point that WayneL made in reply to my post earlier but it seems like being caught out by a S21 is really more to do with the tenant being unsure about when they want to leave the property.

I guess teh advice is that if you sign up for a fixed term tenancy and then you change your mind the only safe way to proceed is sign a new contract - not just let it run on into a periodic tenancy unless its just for a few months.[/quote]
I repeat, if you intend leaving at the end of the fixed term and the LL knows it, it is not a problem. In fact it's fine.

The problem is you are staying long term... particularly if the tenancy goes periodic, then is the problem.

You are also vulnerable until the new lease is signed. Read my post again, if LL changes his mind on you right at the death knock you have no notice. You see LL is saying we want the house back officially, but saying yes you can stay on verbally. Read landlord forums and you will see in most cases the motive is specifically to deny tenants rightful notice.

[u]Even ARLA frowns upon it[/u], this statement from one of their chief educators:
[color="#0000FF"]A S.21 Notice MUST be "unequivocal" and "without reservation" i.e. unconditional, so as soon as you start entering into negotiations about a further tenancy, or conditional withdrawal of the Notice then you are effectively withdrawing it anyway. The tenant might use the Protection from Eviction Act 1977 to defend a S.21 Notice in that the landlord can't say "I want possession" and then on the other hand say "but I might not"[/color]

Look, in most cases, things work out fine, but it doesn't take much to protect yourself against a rogue LL.. and having this knowlege, it would be foolhardy not to.

Cheers

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