Beware The Sword Of Damocles

[Te Mata]

The upshot of all this is that fairly soon S21 will almost certainly be removed altogether, thus finally removing any remaining worries from tenants minds. Where that will leave the supply of housing for those who most need it, goodness only knows.

There is no suggestion of the removal of s21 all together, merely that LLs will be prevented from using s21 possession notice as a retaliatory eviction measure for a tenant who enforced LL to honour contract, such as forcing LL to adhere to repairs and maintenance obligations.

That is only fair.

[Matt Henson]

There is no suggestion of the removal of s21 all together, merely that LLs will be prevented from using s21 possession notice as a retaliatory eviction measure for a tenant who enforced LL to honour contract, such as forcing LL to adhere to repairs and maintenance obligations.

That is only fair.

You are falling in the mistake of believing the S21 can be actioned at any time, it can't it can only be used at the end of the term of the contract or when a tenancy has become periodic. It is rarely used as a threat but as Deltec points out it could be used to event a non-paying tenant at the end of the term or if in a SPT sooner than 2 months.

I am actually sort of on Deltec's side if you have a bad tenant it would be easier to enforce the S21 than issue a section 8 for non-payment of rents which as a minimum takes 10 weeks from first non-payment.

As long as a LL makes it clear they have issued the S21 and why it should not present a problem, remember a LL should be keen to keep a good tenant even at a lower than market rate rent

[Te Mata]

You are falling in the mistake of believing the S21 can be actioned at any time, it can't it can only be used at the end of the term of the contract or when a tenancy has become periodic.

I realize that. There was no hint in my post that I believed it could be actioned other than the above.

It is rarely used as a threat but as Deltec points out it could be used to event a non-paying tenant at the end of the term or if in a SPT sooner than 2 months.

Not quite true. It is often used as a threat against vulnerable tenants, http://www.citizensadvice.org.uk/index/pre...ss_20070613.htm hence the current suggestions or changes to section 21.

Under normal circumstances the s21 will (and should) apply as per current arrangements.

I am actually sort of on Deltec's side if you have a bad tenant it would be easier to enforce the S21 than issue a section 8 for non-payment of rents which as a minimum takes 10 weeks from first non-payment.

Yep, with you there.

As long as a LL makes it clear they have issued the S21 and why it should not present a problem, remember a LL should be keen to keep a good tenant even at a lower than market rate rent

With respect, I think you've missed the point. CAB, Shelter's worry is the use of s21 possession notice as a retaliatory measure against tenants who enforce the Housing Act's obligations of repair and maintenance on the LL.

So tenant goes to EH or council to address repair issues, then LL evicts as retaliation. This is a lot more common than you realize.

They are targeting the Rachman wannabes, not s21 for any other reason (Though they should address the SoD issue)

[Deltic21]

Hi all,

Thanks for the reasoned, and reasonable responses. It's really great to get a good discussion going like this to see all sides of the argument.

Chrysalis - You could be my tenant anytime, and stay as long as you want! Have a feeling we'd get on brilliantly (take-aways and Sky Sports etc!). The DSS tenants issue is a minefield and I have a very important point to make on this front: Overall, the very best tenants I have ever had have been DSS. The very worst (those who funded their new car with £8500 of rent debt after my attempts to help them by 'giving them more time', and a couple who just disappeared owing £4100) were both working families with solid work references. So, no, the DSS question is by no means cut and dried, it is just that as an average they tend to be more tricky. This could be because of poor money management skills, lower incomes, social problems or even because - and these are often the biggest problem - because the local authority is so inefficient at their duties! I have this opinion from 11 years of direct personal experience, although I am in regular touch with large numbers of other landlords. I always felt DSS were a strong group because the rent was often paid direct to the landlord and everyone's a winner, but since the introduction of LHA, and payments USUALLY only direct to tenants, the situation is getting predictably worse. Incidentally, I hardly ever do credit checks - past performance almost never proves to be a reliable indicator of future performance. I don't use agents either and charge no upfront fees whatsoever, and with DSS a deposit is sometimes foregone if they truly are in need.

Flopsy - I advertise in local press, although I do have a waiting list. My SoD S21 is brought to the attention of tenants at their initial visit to the property so they can decide if comparing other landlords/property etc. I like to think I'm an affable chap, and want tenants to stay as long as possible, so I explain exactly what it's for and that if rent is paid and the house is in ok-order (I'm realistic) I will NEVER use it. Indeed, if the AST is refreshed after 6 months etc, the whole affair is forgotten. I used to not issue one until it was absolutely necessary, but the time element proved my undoing too often.

WayneL - There are certain people within CAB and Shelter who want S21 gone completely, and being cynical I assume this will one day be the case. I fundamentally disagree with using S21 as a retaliatory measure, but how any law change could be implemented with just this in mind is difficult to foresee. How would one prove/disprove for certain the retaliatory nature of the issue once it arose?

Best wishes all.

[Deltic21]

Actually, having just re-read previous posts, a simple alteration to the law might be "cannot issue S21 within first 3 months of tenancy" or similar? Surely that would solve all problems and still allow landlords to use S21 to terminate the tenancy at the end of a fixed term etc.

Incidentally, a tenant can leave on the last day of a fixed tenancy period without giving any notice whatsoever, (regardless of any S21 being in force or not).

Deltic

[asquithea]

Incidentally, a tenant can leave on the last day of a fixed tenancy period without giving any notice whatsoever, (regardless of any S21 being in force or not).

Aye, but it's after the end that's at issue. A LL that's fool enough to leave an S21 in place after the end of a fixed term, should be aware that the tenant can leave at any time with no notice at all -- and should, in my view. Conversely, the LL must still go through the courts to get possession.

Advantage LL? I don't think so.

[Chrysalis]

my sister has had a s21 which is dated before her tenancy agreement expires, I am right its invalid?

I told her not to say anything to landlord so he cant correct his mistake.

He is a bit unstable, cant make his mind up whether he wants my sister as a tenant or not so now she is looking to move at the end of the year.

[wickywackywoo]

Hi

Wonder if somebody could please clarify my rights please in what seems to be a somewhat grey area.

Been renting for four years in the same house. Started off as an AST now a rolling periodic. Landlord wants to sell and has just issued me an S21 giving me two months.

I'm happy to assume the S21 is correct. What I want to know is can I now leave at anytime without giving any notice and suffering no penalty for it? Or do I need to give a months notice on the correct date?

Law seems ridiculously hazy here. I want to leave early, can guarantee that the LL will want to charge me for two months and need to be certain for when it goes to court.

Any help, gratefully received.

[asquithea]

Been renting for four years in the same house. Started off as an AST now a rolling periodic. Landlord wants to sell and has just issued me an S21 giving me two months.

I'm happy to assume the S21 is correct. What I want to know is can I now leave at anytime without giving any notice and suffering no penalty for it? Or do I need to give a months notice on the correct date?

Law seems ridiculously hazy here. I want to leave early, can guarantee that the LL will want to charge me for two months and need to be certain for when it goes to court.

You're right, the law is hazy. Here's a thread to read: http://www.landlordzone.co.uk/forums/showthread.php?t=12447

I'd recommend you give a counter-notice, or you could be held liable for the remaining rent. Not everyone would agree, but I've never seen anything to suggest you have the right to walk away after an S21 is served (but before the date specified) -- just as you can't abandon a fixed term at any time when an S21 notice is served from the outset.

The LL most likely will want the 2 months to find a replacement tenant, but it's still worth trying to negotiate if you've found your ideal property; you might be able to get some rent back, and he might be able to move higher-paying tenants in earlier. Win-win.

Edited October 5, 2008 by asquithea

[wickywackywoo]

You're right, the law is hazy. Here's a thread to read: http://www.landlordzone.co.uk/forums/showthread.php?t=12447

I'd recommend you give a counter-notice, or you could be held liable for the remaining rent. Not everyone would agree, but I've never seen anything to suggest you have the right to walk away after an S21 is served (but before the date specified) -- just as you can't abandon a fixed term at any time when an S21 notice is served from the outset.

The LL most likely will want the 2 months to find a replacement tenant, but it's still worth trying to negotiate if you've found your ideal property; you might be able to get some rent back, and he might be able to move higher-paying tenants in earlier. Win-win.

Thanks for that. Shame the people who write these laws can't make things a little clearer. Think it's pretty unreasonable to expect people to find somewhere to start in exactly two months time.

[Deltic21]

Sorry, this is probably way too late for your purposes, but this is the exact answer you seek:

If you are given a correctly issued S21 by your landlord you MUST give correct counter-notice if you are to walk away obligation-free. A lot of people would just disappear, or not give correct counter-notice, but to be fair to all sides (and ensure your landlord has no redress to you), you are best off doing it properly. The law is indeed ridiculously written (over most things!) but this is the right answer.

[spanner200]

i am about to sign contracts for a rental property and have been sent a draft copy. I have never rented a house on my own before, so its all very intimidating, but have been reading up alot so that I know my rights.

can someone please confirm if I am being served a S21?

I have a 12 month contract but with a 6 month break clause. Does that mean that if I sign a contract with S21 then I could in theory be evicted after 6 months, rather than 12?

"To accept the teneacy hereby created in anAssured Shorthold Tenancy as defined in Section 19a of the Houseing Act 1988 and the provisions for the recovery of possession by the landlord in Section 21 thereof apply accodringly"

I suspect if I query this I will be fobbed off with an excuse from the EA. I really don't want to move again, have moved far too much over 8 years and want something more long term, but the EA told me they DONT do longer contracts than 12 months, even though I told them I would be wlling to sign for 2 years! Makes me wonder if the LL is aware of this....

[asquithea]

Without seeing more detail, it sounds like a fairly standard contract, to me. A break clause is very common for a 12 month contract, and it usually means that either side can be released from the agreement at or after 6 months (read the fine print to see which variant applies, and make sure it's bi-lateral).

Don't be afraid to ask them straight-out whether the documentation includes a section 21 notice, and have a gander at this checklist before you sign.

[Chrysalis]

Hi all,

Thanks for the reasoned, and reasonable responses. It's really great to get a good discussion going like this to see all sides of the argument.

Chrysalis - You could be my tenant anytime, and stay as long as you want! Have a feeling we'd get on brilliantly (take-aways and Sky Sports etc!). The DSS tenants issue is a minefield and I have a very important point to make on this front: Overall, the very best tenants I have ever had have been DSS. The very worst (those who funded their new car with £8500 of rent debt after my attempts to help them by 'giving them more time', and a couple who just disappeared owing £4100) were both working families with solid work references. So, no, the DSS question is by no means cut and dried, it is just that as an average they tend to be more tricky. This could be because of poor money management skills, lower incomes, social problems or even because - and these are often the biggest problem - because the local authority is so inefficient at their duties! I have this opinion from 11 years of direct personal experience, although I am in regular touch with large numbers of other landlords. I always felt DSS were a strong group because the rent was often paid direct to the landlord and everyone's a winner, but since the introduction of LHA, and payments USUALLY only direct to tenants, the situation is getting predictably worse. Incidentally, I hardly ever do credit checks - past performance almost never proves to be a reliable indicator of future performance. I don't use agents either and charge no upfront fees whatsoever, and with DSS a deposit is sometimes foregone if they truly are in need.

Flopsy - I advertise in local press, although I do have a waiting list. My SoD S21 is brought to the attention of tenants at their initial visit to the property so they can decide if comparing other landlords/property etc. I like to think I'm an affable chap, and want tenants to stay as long as possible, so I explain exactly what it's for and that if rent is paid and the house is in ok-order (I'm realistic) I will NEVER use it. Indeed, if the AST is refreshed after 6 months etc, the whole affair is forgotten. I used to not issue one until it was absolutely necessary, but the time element proved my undoing too often.

WayneL - There are certain people within CAB and Shelter who want S21 gone completely, and being cynical I assume this will one day be the case. I fundamentally disagree with using S21 as a retaliatory measure, but how any law change could be implemented with just this in mind is difficult to foresee. How would one prove/disprove for certain the retaliatory nature of the issue once it arose?

Best wishes all.

Thanks for your thoughts and sorry for my lagged reply.

I agree the DSS are very inefficient, when I last moved a week after I sent in the new application I sent them a recorded letter reminding them my MP will be involved again if they spend another 6 months processing it and reminded them of payment on account, (I had 3 months covered to allow them some time to process), I got the cheques coming a week after that for the low amount (most tenants dont know but DSS have to give you a small amount within 2 weeks of claim regardless of how much backlog they have), this is called payment on account it will be small but better than nothing. Only a month after that I got fully processed and got proper payments. I actually have my payments sent to me not direct to landlord, this isnt because I dont want landlord to get direct it is because I dont tell my landlord I am on benefits. I have no idea if he knows I am but when I first became his tenant 5 years ago I was employed. I have no idea if the payment on account still applies for LHA but one would expect claims are processed faster due to them simplifying it. Outside this the 2 other major problems with DSS are they payout in arrears whilst rent is paid in advance and they dont cover security deposits.

Edited October 28, 2008 by Chrysalis

[Damocles]

Surfed into this thread which raises some interesting questions:

1. Is the fact that a S 21 notice has no time limit attached to it a loophole?

I think the answer to that depends on how cynical a view you take of the government responsible for introducing ASTs. They were introduced as part of a policy to shift renting from the public to the private sector. To induce people into the letting market it was felt necessary to effectively do away with statutory security of tenure for all new tenancies. When first looked at the requirement to serve a S.21 notice seems to give the tenant a reasonable time to find alternative accommodation. However, when it is realised that the notice can be served early and if the tenant does not realise its effect, the two months is lost and all the tenant has is the time it takes for the landlord to obtain an order for possession. The draftsman of the Housing Act 1988 did have as a "precedent" the Landlord and Tenant Act 1954 which imposes a maximum period of notice for notices served in respect of business tenancies. If it was intended that the notice should be to give the tenant time, the Act should have provided for a maximum period of notice (three months would be reasonable) and also for a requirement to apply for an order for possession within a reasonable period (say a month) after the notice expires, the service of a second notice before the first had expired being disallowed. If that had been done, tenants would have plenty of warning and landlords would think twice about serving notices they did not intend to follow up.

2. Can a S 21 notice be served before the tenancy starts?

Although the point has not been litigated so far as I know, the answer must be I think "no". Compare the words of S. 20 (2) (c ) HA 1988 (which relate to the notice that at one time you had to serve before the tenancy began):

is served by the person who is to be the landlord under the assured tenancy on the person who is to be the tenant under that tenancy

with the words of S. 21 (1) (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.

The distinction is apparent. In the second case the notice must be served by the landlord (expressly not "the person who is to be the landlord"); if there is no tenancy there is no landlord. Accordingly, a S 21 notice served before the tenancy begins is invalid.

It should be noted that a "tenancy agreement" is what is says on the label: an agreement for a tenancy - it does not create a tenancy. The tenancy does not in fact start until the tenant takes up occupation. Accordingly, a notice served after the tenancy agreement is signed, but before the tenant takes up occupation is also invalid.

3. If a second or subsequent fixed term tenancy is agreed does any S 21 notice before that tenancy started lapse?

The answer is "yes". S 21 (1) says:

a court shall make an order for possession of the dwelling-house if it is satisfied...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)

4. If the landlord serves a S 21 notice, can the tenant leave without notice?

The tenant can leave without notice if he leaves before the fixed term comes to an end. However, once the tenancy has become periodic, he must give notice. This is a point to which I gave much thought until I realised that the answer was quite simple. All one has to do is ask: what was the position before the Housing Act 1988 came into operation? It was that a tenant on a periodic tenancy had to give a common law notice to quit to unilaterally bring the tenancy to an end. Is there anything in the HA 1988 which changes this? The answer is "no". A S 21 notice does not bring a tenancy to an end. Quite apart from the Act not saying that a S 21 notice brings a tenancy to an end, S 5 (1) says:

An assured tenancy cannot be brought to an end by the landlord except by obtaining an order of the court in accordance with the following provisions of this Chapter or Chapter II below or, in the case of a fixed term tenancy which contains power for the landlord to determine the tenancy in certain circumstances, by the exercise of that power and, accordingly, the service by the landlord of a notice to quit shall be of no effect in relation to a periodic assured tenancy.

That is quite clear. A S 21 notice is nothing more than a preliminary step that needs to be taken before an application can be made to the court for an order for possession. Its service does not take away the need for the tenant to serve a notice to quit.

5. Do the deposit requirements of the HA 2004 ned to be complied with in full before a S 21 notice can be served.

I'll pass on that!

***

So,

For tenants

If you have been served with a SoD S 21 notice consider carefully when it was served. If it was served before the tenancy began argue it is invalid. If it was served before the deposit requirements were complied with in full, argue it is invalid and hope for the best. Remember though, that all you are doing is to buy more time. The landlord will make sure that the next notice he serves is valid.

For landlords

To be certain your S 21 notice is valid defer serving it until the tenant has gone into occupation and the deposit requirements are complied with in full. There is after all no hurry - a few weeks delay makes no difference. It is also a wise policy not to serve a S 21 notice unless you require possession - it may be counterproductive if you want the tenant to stay - see the comments of posters above.

Edited December 5, 2008 by Damocles

[Elvis-Has-Sold-The-Building]

4. If the landlord serves a S 21 notice, can the tenant leave without notice?

The tenant can leave without notice if he leaves before the fixed term comes to an end. However, once the tenancy has become periodic, he must give notice. This is a point to which I gave much thought until I realised that the answer was quite simple. All one has to do is ask: what was the position before the Housing Act 1988 came into operation? It was that a tenant on a periodic tenancy had to give a common law notice to quit to unilaterally bring the tenancy to an end. Is there anything in the HA 1988 which changes this? The answer is "no". A S 21 notice does not bring a tenancy to an end. Quite apart from the Act not saying that a S 21 notice brings a tenancy to an end, S 5 (1) says:

An assured tenancy cannot be brought to an end by the landlord except by obtaining an order of the court in accordance with the following provisions of this Chapter or Chapter II below or, in the case of a fixed term tenancy which contains power for the landlord to determine the tenancy in certain circumstances, by the exercise of that power and, accordingly, the service by the landlord of a notice to quit shall be of no effect in relation to a periodic assured tenancy.

That is quite clear. A S 21 notice is nothing more than a preliminary step that needs to be taken before an application can be made to the court for an order for possession. Its service does not take away the need for the tenant to serve a notice to quit.

So you are saying you could end up with the situation where a landlord is seeking a possession order form the courts, having filed the papers but is still waiting for the court date, while at the same time the tenant cannot leave as they haven't counter served their own notice! Sorry but that's wrong. How would a landlord enforce it anyway, who has ever heard of a landlord going to court to claim more rent from a tenant who left *after* the S21 notice period has passed but who had not served counter notice!!! The landlord would be asked what on earth he'd expected the tenant to do

The mistake in your reasoning is that if the landlord serves an S21 and the tenant acts on the S21 then neither side is bringing the tenancy to an end unilaterally. The landlord has made the request that the tenant has then complied with.

Of course the tenant can leave once the S21 notice period is up. In that situation there is nothing to say the tenant has to serve counter notice or remain till the possession order or bailiffs drag him out! After all in leaving the tenant is complying with the landlord's request and saving the landlord the hassle of getting a possession order and then bailiffs. The fact that the landlord my not have applied for a possession order yet is irrelevant, the tenant can't know if and when this will be started.

If the tenant wants to leave before the S21 notice period is up you have a point and then I think the tenant serving counter notice is worthwhile always assuming there is time to get a counter notice in which there many not be as all these notices served during a periodic tenancy should end at the end of a period.

Edited December 7, 2008 by Elvis-Has-Sold-The-Building

[asquithea]

4. If the landlord serves a S 21 notice, can the tenant leave without notice?

The tenant can leave without notice if he leaves before the fixed term comes to an end. However, once the tenancy has become periodic, he must give notice. This is a point to which I gave much thought until I realised that the answer was quite simple. All one has to do is ask: what was the position before the Housing Act 1988 came into operation? It was that a tenant on a periodic tenancy had to give a common law notice to quit to unilaterally bring the tenancy to an end. Is there anything in the HA 1988 which changes this? The answer is "no". A S 21 notice does not bring a tenancy to an end. Quite apart from the Act not saying that a S 21 notice brings a tenancy to an end, S 5 (1) says:

An assured tenancy cannot be brought to an end by the landlord except by obtaining an order of the court in accordance with the following provisions of this Chapter or Chapter II below or, in the case of a fixed term tenancy which contains power for the landlord to determine the tenancy in certain circumstances, by the exercise of that power and, accordingly, the service by the landlord of a notice to quit shall be of no effect in relation to a periodic assured tenancy.

That is quite clear. A S 21 notice is nothing more than a preliminary step that needs to be taken before an application can be made to the court for an order for possession. Its service does not take away the need for the tenant to serve a notice to quit.

I agree with Elivis. You're quoting S5, which refers to an Assured Tenancy, not an Assured Shorthold Tenancy. A correctly-served S21 notice brings the tenancy to an end on the specified date -- it's just that the LL can't get possession without a court order.

We're always willing to be corrected, but you're writing as if you're some sort of authority on the matter.

[Damocles]

I agree with Elivis. You're quoting S5, which refers to an Assured Tenancy, not an Assured Shorthold Tenancy. A correctly-served S21 notice brings the tenancy to an end on the specified date -- it's just that the LL can't get possession without a court order.

An assured shorthold tenancy is an assured tenancy. See for example the beginning of section 5 (1) of the Housing Act 1988:

An assured tenancy cannot be brought to an end by the landlord except by obtaining an order of the court in accordance with the following provisions of this Chapter or Chapter II below[...]

Chapter II is sections 19A to 23 which deal with ASTs.

See also the opening words to section 19A and section 20 (1):

19A. An assured tenancy which is[...]is an assured shorthold tenancy

20. (1) Subject to subsection (3) below, an assured tenancy which is[...]is an assured shorthold tenancy...

I also quote from The Which? Guide to Renting and Letting (Second edition, page 46):

An assured shorthold tenancy is merely a type of assured tenancy.

I hope you will agree that the above shows that section 5 applies to ASTs.

We're always willing to be corrected, but you're writing as if you're some sort of authority on the matter.

I am certainly not the authority, but I do know a bit.

Edited December 8, 2008 by Damocles

[Damocles]

Elvis-Has-Sold-The-Building

The position you take seems entirely reasonable and is similar to the line I took myself until I thought the matter through. It does seem a bit unreasonable if a landlord can serve a notice requiring possession and then insist on the tenant serving a notice to quit if he wants to leave before the date set for possession by the court. However, the simple fact is that a section 21 notice does not bring an AST to an end.

[Elvis-Has-Sold-The-Building]

............

Edited December 8, 2008 by Elvis-Has-Sold-The-Building

[Elvis-Has-Sold-The-Building]

Elvis-Has-Sold-The-Building

The position you take seems entirely reasonable and is similar to the line I took myself until I thought the matter through. It does seem a bit unreasonable if a landlord can serve a notice requiring possession and then insist on the tenant serving a notice to quit if he wants to leave before the date set for possession by the court. However, the simple fact is that a section 21 notice does not bring an AST to an end.

I agree that a S21 notice does not bring an AST to an end. However it can be brought to an end my mutual consent between landlord and tenant, so the landlord asks the tenant to leave by serving the S21 and the tenant complies by leaving at (or after) the end of this notice period. There is no need for the tenant to serve counter notice. If the tenant doesn't leave then there wasn't mutual consent so as you say the AST continues.

Do you think the only way to end a tenancy is either a possession order or for a tenant to serve notice and that mutual consent doesn't count? I bet there are hundreds of tenants who leave at the end of the S21 notice period without counter notice from the tenant (myself included). Are you saying for this normal practise that due to lack of notice from the tenant the landlord can come after the tenant for more rent? If he did this I think a landlord having served the S21 would have trouble proving to a court that he did not consent to the tenant leaving as the S21 is a notice telling the tenant that the landlord requires possession after the specified date and that is what the tenant has delivered. Having given this consent via the S21 I do not think the landlord can unilaterally withdraw it afterwards.

As I said I think you have point if the tenant leaves before the S21 notice period is up, then I'd say counter notice from the tenant is needed.

[sleepwello'nights]

Damocles glad you resurrected this thread.

The LL's association I belong to recommend their members issue a S21 notice when a tenancy starts. I didn't fully research the reasons why, sometimes I issued the notice some times I didn't. When I did issue them I always explained to the tenant that it was a formality and provided they were happy to stay after the AST expired I would be happy to renew the AST provided I was happy with their conduct as tenants. Nothing deceitful just a way for me to protect my interests and asset.

Like Deltic21 I always behave reasonably and over time some of my tenants have become almost friends. I let them live without intruding so a little distance is kept. As with all ventures problems will occur. The rental market slowed during the summer and one tenant vacated. I advertised privately first, then used agents but was unable to find a tenant. A couple of people viewed. One wanted to rent the property but took offense when I asked for an alternative contact address, as required by the deposit protection scheme I used. He claimed I was being intrusive and wanted the details in case I needed to pursue him if the tenancy ended! Whatever! Tenants can be unreasonable as well.

I approached the local council and they introduced a tenant. First months rent paid in advance, an emergency payment I believe, LHA paid to tenant for second months rent, not paid over to me on the due date or subsequently. No one has been seen in or around the house since for several days, lights have been left on continuously day and night. I entered the property. There is no one there. There is no clothing in the house. There is little furniture - four dining chairs and a coffee table, no beds or bedding. Post had been unopened for several days. I think the tenant is simply defrauding our benefits system, she is claiming LHA and child tax credit for three children who have not been seen in or around the house.

Now as a landlord what can I do. I have entered the property; probably illegally, so I can be sued for trespass. I have to issue a notice warning that I intend to take action to gain possession of the property, that requires 14 days. I then have to apply to the court and pay their fees and wait for a hearing date. If i am granted a possession order I can then start to advertise for a new tenant. No income during the period for an expensive asset.

Yet the OP complains how unfair it is to be a tenant and how deceitful a S21 notice is. There have been very calm reasoned responses from both sides. Now I am obviously biased towards the LLs viewpoint, but the argument from the tenants view seems only to be we don't own the property we're living in and we can be made to move out some time in the future if the LL wants us to. It doesn't seem that unfair to me.

[Elvis-Has-Sold-The-Building]

The LL's association I belong to recommend their members issue a S21 notice when a tenancy starts. I didn't fully research the reasons why, sometimes I issued the notice some times I didn't. When I did issue them I always explained to the tenant that it was a formality and provided they were happy to stay after the AST expired I would be happy to renew the AST provided I was happy with their conduct as tenants. Nothing deceitful just a way for me to protect my interests and asset.

What you have achieved here is to remove the tenant's right to two months notice and replace it with the length of their notice period if any being solely at your discretion. Now you may intend not to abuse this but how does the tenant know for sure their landlord won't especially should a dispute over say a rent rise or a repair happen?

The deceit comes in playing down the meaning of the S21 notice. It isn't a formality it is a powerful document giving the tenant notice that you require possession. You are bypassing the requirement to give the tenant a minimum of two moths notice by getting it out of the way while tyring to reassure the tenants it doesn't matter. It matters as in the future solely at your own discretion, with no fault on the tenant's part required, you can apply for a possession order without having to give the tenant any notice at all as the original S21 was their notice that you invited them not to worry about!

What's more the LL's association recommends you do this for all tenants, there is no hanging about to see which are the bad ones. Does the LL's association recommend you explain to these tenants that their right to two months notice will have been used up by the end of the initial fixed term?

Can you say which LL's association this is?

So it's not the S21 notice itself that's bad it's the minupilating it to remove a tenant's two moths notice is the problem.

As for the example in the rest of your post, the Sword of Damolces does not help you as the earliest the S21 notice period can end is at the end of the fixed term. In your case you would need an S8. So the SoD doesn't help you there, it pisses off the good tenants while not really helping with the obviously bad IMO.

Edited December 8, 2008 by Elvis-Has-Sold-The-Building

[Te Mata]

Damocles glad you resurrected this thread.

The LL's association I belong to recommend their members issue a S21 notice when a tenancy starts. I didn't fully research the reasons why, sometimes I issued the notice some times I didn't. When I did issue them I always explained to the tenant that it was a formality and provided they were happy to stay after the AST expired I would be happy to renew the AST provided I was happy with their conduct as tenants. Nothing deceitful just a way for me to protect my interests and asset.

Like Deltic21 I always behave reasonably and over time some of my tenants have become almost friends. I let them live without intruding so a little distance is kept. As with all ventures problems will occur. The rental market slowed during the summer and one tenant vacated. I advertised privately first, then used agents but was unable to find a tenant. A couple of people viewed. One wanted to rent the property but took offense when I asked for an alternative contact address, as required by the deposit protection scheme I used. He claimed I was being intrusive and wanted the details in case I needed to pursue him if the tenancy ended! Whatever! Tenants can be unreasonable as well.

I approached the local council and they introduced a tenant. First months rent paid in advance, an emergency payment I believe, LHA paid to tenant for second months rent, not paid over to me on the due date or subsequently. No one has been seen in or around the house since for several days, lights have been left on continuously day and night. I entered the property. There is no one there. There is no clothing in the house. There is little furniture - four dining chairs and a coffee table, no beds or bedding. Post had been unopened for several days. I think the tenant is simply defrauding our benefits system, she is claiming LHA and child tax credit for three children who have not been seen in or around the house.

Now as a landlord what can I do. I have entered the property; probably illegally, so I can be sued for trespass. I have to issue a notice warning that I intend to take action to gain possession of the property, that requires 14 days. I then have to apply to the court and pay their fees and wait for a hearing date. If i am granted a possession order I can then start to advertise for a new tenant. No income during the period for an expensive asset.

Yet the OP complains how unfair it is to be a tenant and how deceitful a S21 notice is. There have been very calm reasoned responses from both sides. Now I am obviously biased towards the LLs viewpoint, but the argument from the tenants view seems only to be we don't own the property we're living in and we can be made to move out some time in the future if the LL wants us to. It doesn't seem that unfair to me.

As the OPer I must take issue that you have misconstrued my point regarding the SoD s21.

1/ Within the context of the current housing legislation, I have no challenge with section 21 whatsoever when the spirit of the law is adhered to. If the LL wants his/her property back for whatever reason, and S8 is not applicable, by all means serve an S21 possession notice. This gives the tenant at least 2 months notice to find alternative accommodation. I have not intimated that s21 under normal circumstances is unfair at all. As I am also a LL as well as a tenant, I'm happy for s21 to be in place.

2/ Where it becomes deceitful and in contravention of the "spirit" of the law is when a so called "Sword of Damocles" s21 notice is served. While deceiving the tenant that it is only a formality, in reality it "tricks" the unfortunately trusting and uneducated tenant out of their rightful notice, as per Elvis' post immediately above this one. It relies on the tenant not fully understanding the implications of s21.

3/ You example really has nothing whatever to do with s21 and even less to do with SoD s21. As it seems to be within the fixed term or within the first six months, s21 cannot be actioned anyway. Section 8 is what applies in your example.

Please ensure to be relevant before casting aspersions on us poor OPs.

[Damocles]

Obviously if the landlord and tenant come to a mutual agreement then the tenancy ends, but I am not talking about that. If you say that the tenant can leave on or at any time after the expiry of a section 21 notice without giving a notice to quit then you are saying that the tenancy comes to an end simply by the tenant leaving, which I do not think can be right. When you say: "If the tenant doesn't leave then there wasn't mutual consent so as you say the AST continues" you seem to be confirming the point. When you add: "As I said I think you have a point if the tenant leaves before the S21 notice period is up, then I'd say counter notice from the tenant is needed" the implication is that the only day the tenant can leave without giving notice is the date of expiry.

I think the confusion lies in the wording of the Act which requires a landlord to give "notice in writing stating that he requires possession of the dwelling-house". What I think is important is not the wording of the notice, but its purpose, which is that it is the first step to be taken in obtaining possession. The fact that there is no requirement to take the second step (to apply for an order for possession) within a set time limit seems to confirm this - compare the need to start proceedings within a specified time limit in the case of serving a notice on one of the grounds set out in Scedule 2.

If it is accepted that ASTs were created so that landlords could have much greater control over their property, albeit with limited protection for tenants to ensure that they are not evicted without due process of law and only after being give reasonable notice, the provisions are not satisfactory.