Te Mata

Beware The Sword Of Damocles

247 posts in this topic

Your suggestion that Laine and Mitchell v Cadwallader & Cadwallader does not make my point on the grounds that the word "unilaterally" appears and because the case does not involve the service of a section 21 notice is arguable. I am inclined to think the case leans in my favour, but let's discuss the question on the assumption it does not.

As mentioned previously, LvC covers a point that is not in dispute.

No-one has suggested that one can simply unilaterallywalk out on a tenancy; the point is that the possession notice imposes a legally enforcable requirement on the tenant to return possession of the property to the landlord and that there is not a further requirement on the tenant to give notice of his intention to comply with the landlords demand.

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You're trying to make it complicated, it isn't.

When a s.21 notice is issued 2 things happen:

  1. The landlord demands possession of the property.

  2. The landlord agrees to accept possession of the property.

Quite simply you cannot demand that a person does something without agreeing to the consequences of them doing it.

I can agree 1, but not 2. What is your authority for suggesting that a section 21 notice means that the landlord agrees to accept possession?

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The notice period is the 2 months contained within the s.21.

Parliaments intention was clearly that the s.21 would bring the tennancy to an end at the end of that period

A section 21 notice does not bring a tenancy to an end. The Act is quite clear on that. See section 5(1).

it is even less plausible that their intention was to permit landlords to circumvent the notice procedures whilst imposing a strict obligantion on the tennants.

Not sure I see what you are getting at.

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Nonsence - the s.21 is not a legal formality, it is a demand that the tennant gives up possession of the property, to repeat from earlier:

I give you notice that I require possession of this dwelling house

The subsequent provisions in the act then provide the landlord with remedy should the tennant ignore the demand for possession.

Of course it is a legal formality - without it the landlord cannot apply to the court for possession. There is no "remedy" since the tenant is under no obligation to give up possession. Absent agreement between the parties or the service of a notice to quit by the tenant, the tenancy does not end until the court says it does.

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More nonsense - ignoring the legal niceties the s.21 actually reads "give me the f***ing house or I'll be round with large men and a court order to throw you out".

The demand isn't an offer, it isn't the begining of a negotiation, it is a notice requiring the tennant to leave.

But it imposes no obligation on the tenant to leave nor does it bring the tenancy to an end. I thought you were arguing that the notice was an offer to surrender.

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Section 21 of the housing act 1988 (repeated in full for completeness):

I have highlighted the relevant paragraphs.

Quite simply you imagine that the s.21 notice is a "legal formality" that allows the landlord to begin the process of requiring the tenant to leave. This is not the case.

S.21(1) provides that the landlord demands possession of the property (and agrees to accept possession) and if the tenant ignores the demand then allows him to obtain a court order authorising the use of force to remove the tenant.

I don't know what else to say, the s.21 isn't a meaningless formality, it isn't suggestion that the landlord might like the property back. It is an important legal document that creates rights and obligations that bind both the landlord and tenant.

You seem to be saying that I am arguing both that the notice is a legal formality and that it is a meaningless formality.

What I am saying is that a section 21 notice is an oddity. It does not do anything beyond what is set out in the Act. It gives the tenant no rights nor does it impose upon him any obligations. All it gives the landlord is the right to apply to the court for possession. If the landlord does nothing the status quo is maintained.

The way the Act operates may be contrasted with the way Part II of the Landlord and Tenant Act 1954 operates. Section 25 of that Act says: "The landlord may terminate a tenancy to which this Part of this Act applies by a notice given to the tenant in the prescribed form specifying the date at which the tenancy is to come to an end." See also section 5 (1) of the Agricultural Tenancies Act 1995: "A farm business tenancy for a term of more than two years shall, instead of terminating on the term date, continue (as from that date) as a tenancy from year to year, but otherwise on the terms of the original tenancy so far as applicable, unless at least twelve months but less than twenty-four months before the term date a written notice has been given by either party to the other of his intention to terminate the tenancy." In both cases it is clearly stated that notice by the landlord brings the tenancy to an end. There is no such provision in the HA 1988. Quite the contrary. It clearly says that, absent a surrender or notice to quit by the landlord, only the court may end the tenancy.

It is not unreasonable to think that a tenant ought to be able to walk away once a section 21 notice is served, but a careful analysis of the Act indicates that that is a view that cannot be sustained.

Finally, I do wish that people on this site would stop telling me I'm talking nonsense. It may be that my analyses are incorrect, but they at least are closely reasoned with appeal to authority and not merely assertions of what I think the law ought to be.

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I can agree 1, but not 2. What is your authority for suggesting that a section 21 notice means that the landlord agrees to accept possession?

The clue is:

I give you notice that I REQUIRE POSSESSION of this dwelling house

:rolleyes:

Edited by Goat

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May I suggest you have a look at this thread and see what you make of it: http://www.landlordzone.co.uk/forums/showthread.php?12447-Does-service-of-S21-notice-remove-need-for-T-s-N-to-Q

I've checked briefly and can't see anything different to what has been covered on our thread. I don't however propose to wade through all 4 pages plus the linked topics as well on the off chance that there is something interesting in there but what I have seen appears to support my arguement.

Back on topic, can you offer anything to support the arguement that a written notice saying "I require possession" does not mean "I agree to accept possession".

If not then the effect of the possession notice is to bind the landlord into accepting surrender of the property at any point after the expiry of the notice period.

Edit: I've checked further and almost everything in that link supports my position - have you changed your opinion?

Edited by Goat

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The key posts in the thread are by me (Lawcruncher) and Agent 46 (a barrister). I suggested you read it because it shows how my thinking evolved and I think I took Agent with me. Not in that thread, but in another I cannot seem to find, I summarised the position by suggesting that we had all been over-complicating and that it came down to something like this:

What was a tenant's position before the HA 1988 came into force? It was that a tenant needed to give a notice to quit. Is there anything in the HA 1988 that changes that? No.

Agent agreed that that simple statement was difficult to refute.

I can only add to that that if Parliament had intended to make such an important change in the law it would have made it explicit.

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The key posts in the thread are by me (Lawcruncher) and Agent 46 (a barrister). I suggested you read it because it shows how my thinking evolved and I think I took Agent with me. Not in that thread, but in another I cannot seem to find, I summarised the position by suggesting that we had all been over-complicating and that it came down to something like this:

What was a tenant's position before the HA 1988 came into force? It was that a tenant needed to give a notice to quit. Is there anything in the HA 1988 that changes that? No.

Agent agreed that that simple statement was difficult to refute.

None of which addresses the simple fact that the possession notice represents a binding agreement by the landlord to accept possession and thus we have a mutually agreed surrender.

I can only add to that that if Parliament had intended to make such an important change in the law it would have made it explicit.

Likewise, had parliament intended to allow landords to evict tennants effectively without notice whilst requiring tennants to give notice I'm sure they would have made that explicit.

That said, we are not talking about a change in the law here. What we are talking about is landlords attempting to circumvent the law without understanding the effect of what they are doing (i.e. agreeing to accept surrender without further notice).

I think the mistake we are all making is in believing that there is such a thing as a section 21 notice that has a specific effect when in fact there is not.

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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, but it must be in writing from the LL, do ensure you insist on this to be done in writing.

What legal weight does email correspondence have? For instance, sent and received emails in a GMail account - is this enough of a paper trail?

Edited by oracleofdoom

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Can't see anything directly relevant to the s.o.d. issue but I'm not going to wade through all 7 pages of it; if there's a particular point you wish to draw to our attention please do so.

Are you one of the posters on that thread? If so which one?

From your silence, am I to take it that you accept my arguement that (subject to the expiry of the notice period) a possession notice represents a binding agreement by the landlord to accept possession and thus we have a mutually agreed surrender.

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Can't see anything directly relevant to the s.o.d. issue but I'm not going to wade through all 7 pages of it; if there's a particular point you wish to draw to our attention please do so.

May I suggest you start on page 4 with post number 32?

Are you one of the posters on that thread? If so which one?

Yes. Lawcruncher.

From your silence, am I to take it that you accept my arguement that (subject to the expiry of the notice period) a possession notice represents a binding agreement by the landlord to accept possession and thus we have a mutually agreed surrender.

My failure to reply was a case of wondering what I could say without repeating myself. However, I think that in addition to what I said above, I can usefully reiterate a point made by one of the posters on the LLZ site and which I do not think I made explicitly, which is that a surrender moves from tenant to landlord. This means that if a landlord says: "I am prepared to accept a surrender" the tenant must actually make the surrender and have it accepted by the landlord.

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May I suggest you start on page 4 with post number 32?

None of which seems particularly relevant to the issue.

My failure to reply was a case of wondering what I could say without repeating myself.

With respect, you've never actually said anything clearly and have certainly not addressed my point.

However, I think that in addition to what I said above, I can usefully reiterate a point made by one of the posters on the LLZ site and which I do not think I made explicitly, which is that a surrender moves from tenant to landlord. This means that if a landlord says: "I am prepared to accept a surrender" the tenant must actually make the surrender and have it accepted by the landlord.

Your arguement seems to be that a possession notice reads "I am prepared to accept a surrender" as if it were an invitation to begin negotiations; what it actually says is "I REQUIRE POSSESSION", which is entirely different.

Quite simply, the possession notice is written agreement by the landlord to accept surrender, he can not subsequently change his mind and decide at a later date whether he wishes to accept surrender or not; if he didn't want the property back he shouldn't have issued the notice.

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None of which seems particularly relevant to the issue.

If you say so. However, I confess I am puzzled that you find both threads on LLZ where lawyers discuss this issue to be irrelevant.

With respect, you've never actually said anything clearly and have certainly not addressed my point.

Actually I think I did address it at some length in post 193. As to it being clear I quote what westminster said on LLZ: "I think [it] provides a wholly convincing argument in support of the view that T cannot end the tenancy merely by vacating at s.21 notice expiry (and says it better than I ever could!)"

Your arguement seems to be that a possession notice reads "I am prepared to accept a surrender" as if it were an invitation to begin negotiations; what it actually says is "I REQUIRE POSSESSION", which is entirely different.

I make the same point whatever the wording. I am having difficulty seeing how, except at a stretch, "I require possession" can mean: "I agree to accept a surrender".

Quite simply, the possession notice is written agreement by the landlord to accept surrender, he can not subsequently change his mind and decide at a later date whether he wishes to accept surrender or not; if he didn't want the property back he shouldn't have issued the notice.

Even if a section 21 notice can be interpreted to indicate a willingness to accept a surrender it cannot possibly be an enforceable agreement because it fails to comply with section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 - see here: http://www.legislation.gov.uk/ukpga/1989/34/section/2

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I am having difficulty seeing how, except at a stretch, "I require possession" can mean: "I agree to accept a surrender".

I am having difficulty seeing how any sane person could interpret it otherwise.

Even if a section 21 notice can be interpreted to indicate a willingness to accept a surrender it cannot possibly be an enforceable agreement because it fails to comply with section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 - see here: http://www.legislation.gov.uk/ukpga/1989/34/section/2

Explain why you think section 2 of that act is relevant in this situation and in what respect it fails to comply.

Edited by Goat

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I am having difficulty seeing how any sane person could interpret it otherwise.

We are going to have to disagree on that. What I think supports my view is that if Parliament had intended a section 21 notice to serve any purpose other than a necessary step before applying for an order for possession it would have spelled it out.

Explain why you think section 2 of that act is relevant in this situation and in what respect it fails to comply.

I refer to the text of section 2 here: http://www.legislation.gov.uk/ukpga/1989/34/section/2

If you look at subsection (1) you will see that the section is concerned with "the sale or other disposition of an interest in land ". A surrender is a disposition and a tenancy is an interest in land - see subsection (6). Further, the contract must incorporate "all the terms which the parties have expressly agreed in one document". There is insufficient detail in a section 21 notice to form the basis of a contract, quite apart from the fact that a section 21 notice does not record what the parties have agreed for the simple reason that nothing will have been agreed before the notice is served.

Subsection (3) is a killer. The contract must be signed by each party.

The exceptions set out in sub-section (5) do not apply.

Edited by Damocles

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Post # 212 - the possession notice represents a binding agreement by the landlord to accept possession and thus we have a mutually agreed surrender.
Post #217 - Quite simply, the possession notice is written agreement by the landlord to accept surrender, he can not subsequently change his mind and decide at a later date whether he wishes to accept surrender or not
Post #198 - The demand isn't an offer, it isn't the begining of a negotiation, it is a notice requiring the tennant to leave.
Post #199 - the s.21 isn't a meaningless formality, it isn't suggestion that the landlord might like the property back. It is an important legal document that creates rights and obligations that bind both the landlord and tenant.
Post #210 - can you offer anything to support the arguement that a written notice saying "I require possession" does not mean "I agree to accept possession".

The trouble is, you have nothing to support your argument that it does mean what you claim it means, except the [unsupported] interpretation you personally place on the words “I require possession”, the repetition of which does nothing to further your argument.

According to you, a notice pursuant to s.21 Housing Act 1988:

1. Represents a binding agreement by the landlord to accept possession and thus we have a mutually agreed surrender. [For a surrender by operation of law to take place, T must offer up possession, LL must accept - in that order. Nothing in s.21 even faintly suggests that the notice is a ‘binding agreement’ or has any effect other than to serve to satisfy the court that the requirements of s.21 have been met at the time a possession order is sought – if and when it is sought.]

2. Is written agreement to accept surrender. [How can LL accept what has not been offered?]

3. Is a demand not an offer. [so, it’s not only a ‘binding agreement’ that LL will accept possession – that is, if one accepts the false premise that serving the notice magically causes T to offer possession - it’s also a demand? Since it cannot be a demand that T vacates – see point 4. below – what is the LL demanding?]

4. Requires the tenant to leave. [No, the LL can’t demand or require the T to vacate, only a court can do that. It is just advance notice of LL’s requirement for vacant possession, a necessary formality before LL may ask the court to order T to vacate under s.21. The LL’s notice may be invalid – they often are - in which case the court will not make an order regardless of the LL requiring it; or the LL may choose not to apply for possession for whatever reason (e.g. having renewed the fixed term with T); or T may vacate at fixed term expiry, or serve NTQ and vacate at his notice expiry.]

5. Isn’t a meaningless formality. [Not entirely without meaning, I agree, but its meaning is restricted to satisfying the formal requirements of s.21. The section provides for no other meaning or effect.]

6. Creates rights and obligations that bind both the landlord and tenant. [it entitles the LL to apply for possession after notice expiry, but this entitlement is not ‘binding’, and the notice confers no other rights on either party nor any obligations whatsoever. Both parties are free to choose to do precisely nothing following service of the notice.

And whilst they might, independent of the LL’s notice, agree an early surrender, equally they might instead agree to enter into a new fixed term contract. The LL’s notice, having no effect in itself, has no effect on what LL/T may separately agree.]

Post #196 - Parliaments intention was clearly that the s.21 would bring the tennancy to an end at the end of that period

What is the source or basis for this assertion, since the Act appears to reflect an entirely contrary intention?

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The trouble is, you have nothing to support your argument that it does mean what you claim it means, except the [unsupported] interpretation you personally place on the words "I require possession", the repetition of which does nothing to further your argument.

According to you, a notice pursuant to s.21 Housing Act 1988:

1. Represents a binding agreement by the landlord to accept possession and thus we have a mutually agreed surrender. [For a surrender by operation of law to take place, T must offer up possession, LL must accept - in that order. Nothing in s.21 even faintly suggests that the notice is a 'binding agreement' or has any effect other than to serve to satisfy the court that the requirements of s.21 have been met at the time a possession order is sought – if and when it is sought.]

2. Is written agreement to accept surrender. [How can LL accept what has not been offered?]

3. Is a demand not an offer. [so, it's not only a 'binding agreement' that LL will accept possession – that is, if one accepts the false premise that serving the notice magically causes T to offer possession - it's also a demand? Since it cannot be a demand that T vacates – see point 4. below – what is the LL demanding?]

4. Requires the tenant to leave. [No, the LL can't demand or require the T to vacate, only a court can do that. It is just advance notice of LL's requirement for vacant possession, a necessary formality before LL may ask the court to order T to vacate under s.21. The LL's notice may be invalid – they often are - in which case the court will not make an order regardless of the LL requiring it; or the LL may choose not to apply for possession for whatever reason (e.g. having renewed the fixed term with T); or T may vacate at fixed term expiry, or serve NTQ and vacate at his notice expiry.]

5. Isn't a meaningless formality. [Not entirely without meaning, I agree, but its meaning is restricted to satisfying the formal requirements of s.21. The section provides for no other meaning or effect.]

6. Creates rights and obligations that bind both the landlord and tenant. [it entitles the LL to apply for possession after notice expiry, but this entitlement is not 'binding', and the notice confers no other rights on either party nor any obligations whatsoever. Both parties are free to choose to do precisely nothing following service of the notice.

And whilst they might, independent of the LL's notice, agree an early surrender, equally they might instead agree to enter into a new fixed term contract. The LL's notice, having no effect in itself, has no effect on what LL/T may separately agree.]

What is the source or basis for this assertion, since the Act appears to reflect an entirely contrary intention?

whilst all this is true, surely the point is, if the tenant leaves on the date the landlord required possession, the landlord cant come after the tenant for breaking an agreement.

The tenant has left the building, the tenancy is over.

In my experience the S21 is used as a leverage of fear by an Agent to the tenant...they usually attach it with a very serious looking letter that unless you agree to the new rent, you are out, and they usually do this 3 -4 months before the end of the tenancy, PLUS they DEMAND that they be allowed to invade your home with viewers if you dont agree to sign.

Edited by Bloo Loo

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whilst all this is true, surely the point is, if the tenant leaves on the date the landlord required possession, the landlord cant come after the tenant for breaking an agreement.

We all sort of feel that it ought to be the case that if a landlord serves on a tenant a notice saying he requires possession and the tenant (without giving notice) vacates that the landlord has no recourse. It may be that a county court judge would say to a landlord: "You gave notice requiring possession. The tenant has given you possession. You have you what you said you required. Go away." However, for all the reasons I set out above, I do not see how that can be justified legally. The problem a court has to overcome is this:

We know for certain that a section 21 notice does not terminate a tenancy.

A section 21 notice is a creation of statute. There is nothing whatsoever in the HA 1988 to support the idea that a section 21 notice operates to give the tenant any sort of right to leave at will.

Even if there were such a right, since the Act is silent, we have nothing to let us know how or when it could be exercised. Accordingly, assertions to the effect that the alleged right can be exercised on and/or before and/or after the date specified in the section 21 notice cannot be sustained.

It is an essential requirement of a tenancy that its duration is certain. In the case of a periodic tenancy that means that both parties need to know at any given moment the earliest date on which it can be determined by notice to quit. For an assured periodic tenancy to be subject to the possibility that at any given moment one party can terminate it at will requires the intervention of statute and no such statute exists.

Despite all this, it is entirely possible that a higher court will decide that a landlord who serves a section 21 notice is estopped from arguing that does not actually require possession until he starts proceedings. However, until a court does so decide, to be absolutely safe a tenant on a periodic tenancy served with a section 21 notice should serve a notice to quit if he wants to leave before a court order is obtained.

Just to be clear, discussions between, and subsequent actions by, landlord and tenant after service of a section 21 notice may amount to a surrender by operation of law that obviates the need for the tenant to serve a notice to quit.

The tenant has left the building, the tenancy is over.

A tenant vacating does not on its own bring a tenancy to an end.

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Surely people are on a wind up here? It's not in dispute that a tenancy can come to to end in a number of ways these are:

1: End of a fixed term.

2: LL give 2 months notice and the tenant moves out after at the date at the end of that notice, it does not require the T to also provide notice.

3: The T can give 1 months notice and the tenant moves out after at the date at the end of that notice, it does not require the LL to also provide notice.

But issuing a s21 says very clearly:http://www.letlink.co.uk/GeneralInfo/General_possession/S21_1_B.pdf

"I give you notice that I require possession of the dwelling"

In the notes it says "The length of the notice must be at least two months"

There can be no doubt that issuing a s21 is exactly what it clearly states it is, it is the act of giving notice that you want the property back. When one party gives notice they have given notice plain and simple. How is that any different to any other 2 month notice? It seems some people have undergone some extraordinary mental gymnastics to convince themselves that when you write to a tenant and tell them that you want them out and you do so more than 2 months in advance you are in fact not giving the two month notice at all! You are just giving yourself an option to circumvent the 2 months if you choose at any time.

When the LL issues notice he does not need or can require the tenant to also give notice, any more than the other way around.

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