Beware The Sword Of Damocles

[KingBingo]

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.

But the tenant is not 'leaving at will' the tenant is leaving because the LL has severed notice on them.

What in God name is a tenant suppose to do? Ignore the LL every time they give notice just encase the LL didn't really mean it?

[Goat]

I think it's interesting that, Damocles attempted diversion in Laine and Mitchell v Cadwallader & Cadwallader apart, no relevant case law has been posted on this thread.

Surely if there was some validity in the cliam that the notice to quit has no effect on the landlord's position we would have seen this in court. Surely some smartarse landlord would have tried to sue his tennant for damages by now.

So my challenge is this: please find me some relevant case law that demonstrates that a statutory notice can be served without the server accepting the results of the notice.

Shouldn't be too hard for you, no need to restrict yourselves to property, you've got the whole body of English civil law to work with.

[Damocles]

I think it's interesting that, Damocles attempted diversion in Laine and Mitchell v Cadwallader & Cadwallader apart, no relevant case law has been posted on this thread.

Surely if there was some validity in the cliam that the notice to quit has no effect on the landlord's position we would have seen this in court. Surely some smartarse landlord would have tried to sue his tennant for damages by now.

So my challenge is this: please find me some relevant case law that demonstrates that a statutory notice can be served without the server accepting the results of the notice.

Shouldn't be too hard for you, no need to restrict yourselves to property, you've got the whole body of English civil law to work with.

I am not sure why you refer to my quoting Laine and Mitchell v Cadwallader & Cadwallader as an attempted diversion. I think it helps my case, but I conceded that you may have a point. Further, I went on to argue my position on the basis that the case was of no assistance.

As for you call for relevant cases, it depends on what sort of notice you are serving. A notice of intention to start court proceedings commits the sender to nothing. A valid notice to quit (and I refer to a proper notice to quit) has a consequence for the server because it brings the tenancy to an end and cannot be withdrawn. Without more, a section 21 notice really has no consequences for either landlord or tenant and is no more than a requirement that has to be fulfilled before the landlord can apply for possession. It quite definitely does not bring the tenancy to an end. Since there is a call for cases, perhaps you can come up with one that says that if a landlord serves a notice that does not end a tenancy the tenant can up and leave.

There are many points of law (and more than one or two arising out of the Housing Act 1988) that have not been the subject of a court case. (Remember that bank charges have been around for ever, but we only had a case very recently that determined they were not in the nature of contractual penalties.) If we had one on this point we would know where we were.

We do not really need cases here though because it is all in the Act. My main point really is this:

Before the HA 1988 was passed could a tenant on a periodic tenancy end it unilaterally without giving a notice to quit? The answer is that he could not. Did anything expressly set out in the Act change that? That answer is that it did not. Can a change be implied? Not that I can see. It is in any event surely the sort of change that needs to be spelled out.

This means that all there is to fall back on is the contents of the notice. I have a lot of sympathy with the view that since the notice requires possession a landlord can hardly complain if he gets it. The problem with that is (i) that we have no indication of when the tenant can leave and (ii) that it would give rise to the anomaly that the notice had the effect of terminating the tenancy at the election of the tenant without telling the landlord he is going; there is nothing whatsoever in the Act that can support that.

[@contradevian]

I actually did walk out under a S21 notice. This came as a bit of a surprise to the letting agents and landlord. I had an offer of social housing which had to be accepted almost immediately and I'd had nothing back from the landlord or letting agency to suggest the S21 notice "issued as a matter or routine" had been revoked or withdrawn.

No possession proceedings had commenced, and I assumed the tenancy had reverted to a statutory periodic tenancy due to the lack of tenancy renewal signed by both parties. Agents issue a S21 seemingly without recognising the implications. Should I have given a months notice?

Also for 20 months of my tenancy I could only have said to have possessed an actual copy of a contract for six months of it (the initial period). I'd sign and returned the contracts but never had them back signed so I've know way of knowing if actually signed by the landlord or his agent. I'd chased them up, but they could never find them! So was a fixed term contract actually exist or a periodic tenancy? It takes two to tango.

Edited May 2, 2012 by "Steed"

[tim123]

I actually did walk out under a S21 notice. This came as a bit of a surprise to the letting agents and landlord. I had an offer of social housing which had to be accepted almost immediately and I'd had nothing back from the landlord or letting agency to suggest the S21 notice "issued as a matter or routine" had been revoked or withdrawn.

No possession proceedings had commenced, and I assumed the tenancy had reverted to a statutory periodic tenancy due to the lack of tenancy renewal signed by both parties. Agents issue a S21 seemingly without recognising the implications. Should I have given a months notice?

Also for 20 months of my tenancy I could only have said to have possessed an actual copy of a contract for six months of it (the initial period). I'd sign and returned the contracts but never had them back signed so I've know way of knowing if actually signed by the landlord or his agent. I'd chased them up, but they could never find them! So was a fixed term contract actually exist or a periodic tenancy? It takes two to tango.

A S21 doesn't remove your need to give notice unless you leave on (or before) the date that a periodic tenancy finishes.

The LL would need to supply the signed agreement if he wanted to enforce a fixed term (and you would need to supply it if you wanted to walk out with zero notice on the final day). Otherwise (should it come to that) a court would construct a periodic tenancy for you based upon the agreed facts and calculate the required notice from that.

tim

[@contradevian]

A S21 doesn't remove your need to give notice unless you leave on (or before) the date that a periodic tenancy finishes.

The LL would need to supply the signed agreement if he wanted to enforce a fixed term (and you would need to supply it if you wanted to walk out with zero notice on the final day). Otherwise (should it come to that) a court would construct a periodic tenancy for you based upon the agreed facts and calculate the required notice from that.

tim

But what about where the tenant has signed and returned a contract, but doesn't get a signed copy back? No doubt the landlord could suddenly produce a signed contract in court if he wanted to enforce a notice period or a contract term. Would he not have to prove to the court, the tenant had been duly "served" with the completed contract at the time if was due to start, so was fully aware of what his obligations were? Had the landlord wanted to enforce a fixed term with me, I'd have just said "well I signed the contract, but got nothing back, I've had nothing back to suggest the S21 was revoked" (provided with a copy signed by both parties, which is a legal obligation)?

Edited May 2, 2012 by "Steed"

[Damocles]

But what about where the tenant has signed and returned a contract, but doesn't get a signed copy back?

This seems to happen a lot.

Since a contract for an AST for a term of three years or less does not need to be in writing, the question to ask is whether, despite one party having failed to sign, a contract has already arisen. We can distinguish between:

(a) where the writing actually creates the contract

and

(b ) where the writing does no more than record a contract already made.

Anyone wanting to show that a contract was created orally does have the problem of proving it. If the letter sending the agreement says something like: "We are pleased you have agreed to renew your tenancy" it will help. Absent anything in writing, the tenant is in difficulty although where there is an increase in rent the agent is going to have difficulty proving the increase was agreed without producing the agreement. However, the fact remains that if a tenant sends off a signed part and does not get one in exchange he is left in a sort of limbo. Assuming there was no oral contract, there has to come a point where the tenant is entitled to assume that there is no contract; the snag is knowing when that point arrives.

The tenant can set his own terms by writing a suitable letter when he sends the agreement back. Better though is for the tenant to inform the agent that he has received the agreement and that upon, hearing that the agent has in his possession the part signed by or on behalf of the agent, he will call into the office and hand over his signed part in exchange for the landlord's signed part.

[zebbedee]

This seems to happen a lot.

Since a contract for an AST for a term of three years or less does not need to be in writing, the question to ask is whether, despite one party having failed to sign, a contract has already arisen. We can distinguish between:

(a) where the writing actually creates the contract

and

(b ) where the writing does no more than record a contract already made.

Anyone wanting to show that a contract was created orally does have the problem of proving it. If the letter sending the agreement says something like: "We are pleased you have agreed to renew your tenancy" it will help. Absent anything in writing, the tenant is in difficulty although where there is an increase in rent the agent is going to have difficulty proving the increase was agreed without producing the agreement. However, the fact remains that if a tenant sends off a signed part and does not get one in exchange he is left in a sort of limbo. Assuming there was no oral contract, there has to come a point where the tenant is entitled to assume that there is no contract; the snag is knowing when that point arrives.

The tenant can set his own terms by writing a suitable letter when he sends the agreement back. Better though is for the tenant to inform the agent that he has received the agreement and that upon, hearing that the agent has in his possession the part signed by or on behalf of the agent, he will call into the office and hand over his signed part in exchange for the landlord's signed part.

We had this very problem 18 months ago when we renewed, sent he agents email after email requesting they send us the signed contract to no avail. They kept giving the excuse the LL had not returned the copy yet, although the contract has them down as acting 'for and on behalf of'. This was for a 3 months up front rent payment (in return for reduced rent) then continuing monthly. Finally sent them an email stating that if the signed copy was not forwarded to us before the commencement of the term we would assume that no contract existed and continue on a statutory periodic basis, they sent a .pdf copy signed in the LL name within hours. Then the next day an email from the person we normally dealt with who was out of office the day before saying they would sign and copy with the agents signature arrived in the post. So either they had the LLs signed copy all along or one of them forged it in order to get payment from us .

It makes me wonder how many times does it happen that the agents are holding onto the signed copy so that the T is in the dark and could be out with no way of proving a contract exists but the LL is sitting pretty.

[salamander]

Here's a happier tale.

Landlord didn't as expected extend our tenancy for another year and for various personal reasons we felt we needed a little longer to find somewhere to live. Practically begged for a rolling extension of a month or two but landlord refused, also citing personal reasons.

We have been looking for somewhere to rent or even buy despite the other stresses we are under. Have made some progress and do actually hope to be out by the date required by the landlord.

However it turns out that a section 21 notice was never issued, neither at the beginning of the latest tenancy renewal (the start point of this thread) nor when we were informed of the non-renewal of the tenancy.

Landlord is now aware of this but there is nothing * they can do apart from issue a section 21 at the next rental date, hope that we can move out in time, and that they won't have to wait an additional month to take possession. We have stated our hope that this will be the case, but the ball is firmly in our court for now.

No real story here but a message that the law is very clear on this and if landlords or their agents fail to follow protocol they lose control,if only temporarily, to the tenant. After everything that has been going on recently with myself and my partner it is very comforting to finally be in the driving seat of our destiny rather than passengers strapped loosely on to the roof-rack

Edit: * There may other legal routes open to them but these would still leave us with a full 2 months notice from the time they initiate these, and in fact such a notice period will also need to end on a rent date, with the same net effect as a section 21 issued next month.

Edited June 19, 2012 by salamander

[slmnneil]

Please can anyone say how long this has been legally valid

[lastlaugh]

Please can anyone say how long this has been legally valid

Are you asking when were Section 21 Notices introduced?

About 25 years ago.

Housing Act 1988

[GloomMonger]

Despite reading much of this thread I'm still confused. If I was issued an S21 on 1/7/14 and the deposit wasn't protected until 22/7/14 does this invalidate the S21? I have taken legal advice and been told the S21 is invalid, but this thread makes me doubt his knowledge. As I understand it, if the deposit is protected within 14 days then it is valid, in my case it took 21 days. Any advice greatly appreciated.

[kibuc]

I've lost my S21 virginity today. I've just finished a call with my LA, where I heard the dreaded S21 mentioned to me for the first time.

Our fixed-term AST ends on the 31st of July and we communicated that we'd like to stay on a periodic agreement, to which our LL replied OK, but she wants us to have 2-months notice period instead of 1 month. I was certainly less then ecstatic about that, hence today's call from the LA.

First, I was told that we need to give advanced notice anyway even if we decide to move out at the end of our agreement. LA was quick to retreat on this one once I called her out on her ********.

Then I was told that if we don't budge, we will be just given S21 after the weekend (6th of June), which will result in us having to move out on the 6th of August. We're paying monthly, so that's ******** number two, which she was forced to admit a few moments later.

I'm still stunned by the amount of legal inaccuracies presented to me as facts during that phone call. Is that a standard practice in the industry? Are there any laws around that?

Anyway, it all ended up with me sending an email, stating that if the landlord decides to serve us S21 before our fixed term ends, then she can expect us to give her our own 1-day notice on the 31st of July, as we're legally entitled to.

Ohh, I feel so alive!

[Rozza]

I've lost my S21 virginity today. I've just finished a call with my LA, where I heard the dreaded S21 mentioned to me for the first time.

Our fixed-term AST ends on the 31st of July and we communicated that we'd like to stay on a periodic agreement, to which our LL replied OK, but she wants us to have 2-months notice period instead of 1 month. I was certainly less then ecstatic about that, hence today's call from the LA.

First, I was told that we need to give advanced notice anyway even if we decide to move out at the end of our agreement. LA was quick to retreat on this one once I called her out on her ********.

Then I was told that if we don't budge, we will be just given S21 after the weekend (6th of June), which will result in us having to move out on the 6th of August. We're paying monthly, so that's ******** number two, which she was forced to admit a few moments later.

I'm still stunned by the amount of legal inaccuracies presented to me as facts during that phone call. Is that a standard practice in the industry? Are there any laws around that?

Anyway, it all ended up with me sending an email, stating that if the landlord decides to serve us S21 before our fixed term ends, then she can expect us to give her our own 1-day notice on the 31st of July, as we're legally entitled to.

Ohh, I feel so alive!

Without meaning to sound like a naysayer, you havent actually done yourself any favours here really.

When the LA said you can stay periodic but with 2 months notice you should have just said "OK" as without a new bit of paper stating otherwise the periodic tenancy would by default have had one months notice, so you could have agreed and then just said "we are off. see ya" whenever it suited

You havent necessarily made the situation worse but sometimes when the other party says "we will do X" and you know thats not how the law works, its easier to just accept it knowing that you are actually getting what you want they just "think" they won

[Bruce Banner]

Without meaning to sound like a naysayer, you havent actually done yourself any favours here really.

When the LA said you can stay periodic but with 2 months notice you should have just said "OK" as without a new bit of paper stating otherwise the periodic tenancy would by default have had one months notice, so you could have agreed and then just said "we are off. see ya" whenever it suited

You havent necessarily made the situation worse but sometimes when the other party says "we will do X" and you know thats not how the law works, its easier to just accept it knowing that you are actually getting what you want they just "think" they won

Years a go, after selling a company, I had to sign a three year service contract and one clause seemed particularly onerous.

My solicitor agreed but said to sign it, as, if we queried it, the other side would change the clause to one that would stand up in a court of law, whereas the original clause would be thrown out.

[kibuc]

Without meaning to sound like a naysayer, you havent actually done yourself any favours here really.

When the LA said you can stay periodic but with 2 months notice you should have just said "OK" as without a new bit of paper stating otherwise the periodic tenancy would by default have had one months notice, so you could have agreed and then just said "we are off. see ya" whenever it suited

You havent necessarily made the situation worse but sometimes when the other party says "we will do X" and you know thats not how the law works, its easier to just accept it knowing that you are actually getting what you want they just "think" they won

LA wanted that in writing, so that would probably trump the default 1-month notice.

What buggers me now if the onus of invalidating S21 is on me, or is it the landlord who needs to prove it is valid, and if it's on me, then do I have a deadline for that? I haven't been given any information about my deposit, the scheme that was used, withdrawal rules, nothing, which I believe renders any potential S21 notice invalid. Supposing I'm served one, do I have a fixed term to question it, or can I just keep on with my life and when landlord shows up to get his property back, ask them to serve a valid S21 first? I'm worried that if I highlight any issues with their paperwork as soon as S21 is delivered, they'll just fix it on the very next day and serve a new, valid one immediately after.

[xela57]

As I understand it the only person who can tell you to leave is a Judge. If the landlord applies to the court to evict you then if you can prove to the court that the S21 is invalid then the court will not evict you. As to who has the burden of proof I don't know.. but probably best to assume the more proof you have the better.

This might help!?!

http://nearlylegal.co.uk/2016/06/validity-section-21-notices-flow-chart/

If the Landlord wants you out you may want to start thinking about moving as it will just be a matter of time until the court orders you to move.... but if you are just playing for time then go for it.

Good luck!

[lastlaugh]

LA wanted that in writing, so that would probably trump the default 1-month notice.

What buggers me now if the onus of invalidating S21 is on me, or is it the landlord who needs to prove it is valid, and if it's on me, then do I have a deadline for that? I haven't been given any information about my deposit, the scheme that was used, withdrawal rules, nothing, which I believe renders any potential S21 notice invalid. Supposing I'm served one, do I have a fixed term to question it, or can I just keep on with my life and when landlord shows up to get his property back, ask them to serve a valid S21 first? I'm worried that if I highlight any issues with their paperwork as soon as S21 is delivered, they'll just fix it on the very next day and serve a new, valid one immediately after.

I don't understand the S21 aspect of your story. Have you been served a S21 yet? Why do you think it might be invalid?

Personally I would chase up the lack of protection of the deposit.

[kibuc]

I don't understand the S21 aspect of your story. Have you been served a S21 yet? Why do you think it might be invalid?

Personally I would chase up the lack of protection of the deposit.

No, I have only been threaten with one if I don't give in on my notice period. My worry is I might get it late June / early August and I'm heading for 6-week holiday on the 3rd of August. If I'm served a S21 right before my holiday, I'd like to be assured that I can go, get my well-deserved rest and, upon returning, tell the LA that S21 was invalid.

@xela57 - thanks for your help. After reading that and browsing Shelter website I'm 100% certain that any S21 notice would be invalid. Still not sure if I'm obligated to point it out straight ahead upon receiving it, but the worst case scenario is I take it to court. Unless, of course, the landlord listens to the voice of reason and we live happily ever after, which still cannot be ruled out.

[lastlaugh]

No, I have only been threaten with one if I don't give in on my notice period. My worry is I might get it late June / early August and I'm heading for 6-week holiday on the 3rd of August. If I'm served a S21 right before my holiday, I'd like to be assured that I can go, get my well-deserved rest and, upon returning, tell the LA that S21 was invalid.

@xela57 - thanks for your help. After reading that and browsing Shelter website I'm 100% certain that any S21 notice would be invalid. Still not sure if I'm obligated to point it out straight ahead upon receiving it, but the worst case scenario is I take it to court. Unless, of course, the landlord listens to the voice of reason and we live happily ever after, which still cannot be ruled out.

OK, I get you.

Firstly, your AST ends on 31st July, right? If so, a S21 dated in July will end on the 30th September. A S21 dated in August will end on 31st October. All the S21 means is that the LL can start legal proceedings against you once it has expired. It will take several weeks to organise, but once a judge makes a decision, you might have to move very quickly.

No LL in their right mind with a half-decent tenant wants to go through all that hassle, risk and expense, just because you won't sign away your legal right to one-month notice in a Periodic Tenancy. (As an aside, I'm not even sure you can sign it away. Something about statute overriding contract and all that. But that's another argument). So chances are they will fold soon.

However, if you are correct about the deposit, then it seems your LA and LL might be amateurs and don't know what they are doing. Amateurs have a habit of doing stupid, unpredictable and vindictive things, even when it's bad for business.

My advice is hold firm on the 1-month notice, it's your right and not negotiable. Chances are they won't serve you a S21. If they do, and if they have screwed up your deposit, then there is a simple legal process for you to put the brakes on the S21. But keep that close to your chest until near the expiry of your S21. That will buy you a lot more time and should put a nice bit of money in your pocket.

In the meantime, send a strongly worded email to your LA to tell them the subject is no-longer up for discussion and to not harass you anymore. Then relax and enjoy your holiday. You deserve it! ?

Edited June 23, 2016 by lastlaugh

[Damocles]

Just to clarify a few points raised by the last few posts:

The parts of section 5(3) of the HA 1988 relevant to the discussion are:

The periodic tenancy referred to in subsection (2) above is one—

(a) -

(b )

(c ) -

(d) under which the periods of the tenancy are the same as those for which rent was last payable under the fixed term tenancy; and

(e) under which, subject to the following provisions of this Part of this Act, the other terms are the same as those of the fixed term tenancy immediately before it came to an end, except that any term which makes provision for determination by the landlord or the tenant shall not have effect while the tenancy remains an assured tenancy.

As to (d) it should be noted that the periodic tenancy will only be monthly if the rent was paid monthly. If the rent was payable weekly, four weekly or quarterly, the periods of the tenancy will be weekly, four weekly or quarterly as the case may be. The period of notice to be given by the tenant is as follows:

Weekly or four weekly tenancy = four weeks

Monthly tenancy = one month

Quarterly tenancy = a quarter

As to (e) the words "while the tenancy remains an assured tenancy" should be noted. If the tenancy ceases to be an assured tenancy (for example because the tenant leaves) any notice provisions of the fixed term tenancy will apply.

Further, the sub-section sets out what the terms of the periodic tenancy will be immediately it begins. The parties are free to vary the terms by agreement and that includes varying the period of notice required to be given by the tenant.

Edited July 26, 2016 by Damocles