Notice Served Too Early?

[jorsher]

Hi,

I signed a 12 month tenancy agreement on the 10th October 2009. I have been a good tenant and have always paid rent on time. I was served a 21(1)B notice on the 7th April 2010 (dated 8th April) by the landlords giving me and my family two months notice and that possession of the property was required on the 7th June 2010.

Is this notice valid because it was served only 5 months and 29 days after I originally moved in? The 10th April would have been six months, a six break clause was included within the contract for use both by the landlord and tenant. Also the notice is asking me and my family to move out 2 days too early in June, I would have paid rent up until the 9th June (rent paid on the 10th of each month)?

I am not trying to be awkward, I wish to legitimately to stay in the property. The landlords want to move back into this property after they moved out just 7 months ago (they claimed they moved out because they want more space for their family). However I know they moved out and into rented accommodation only 1 mile away in order to be within the school catchment area for one of the best public schools in the borough. They have recently received notification that their child has received admission into this school and because of this they are now demanding we leave so that they can live in their home again. This is surely cheating the local learning authorities admission criteria, this temporary renting to get into catchment areas is a widespread problem in our borough.

(Additional note, in relation to early termination contract says "the landlord may bring the tenancy to an end any time before the expiry of the term but not before sixth months from the commencement date of this agreement whichever shall be later to the tenant not less than two months written notice..." and for the tenants specific clauses it says "This tenancy may be terminated by the tenants by not giving less than two months written notice to the landlord from the 10th of each month only not be served prior to the sixth month, the sixth month being 10th April 2010....."

Sorry for long question

Thanks in advance

Jorsh

Edited May 15, 2010 by jorsher

[porca misèria]

Hi,

I signed a 12 month tenancy agreement on the 10th October 2009.

[ ... ]

The landlords want to move back into this property after they moved out just 7 months ago (they claimed they moved out because they want more space for their family). However I know they moved out and into rented accommodation only 1 mile away in order to be within the school catchment area for one of the best public schools in the borough.

Sorry, can't comment on the legalities, though it sounds very dubious.

Sounds to me like the landlord never intended to let you have 12 months, and has sold you an unsuitable rental that was not in your interests. If you had been in possession of the facts, you'd've found somewhere that was available for longer! So the rent you've paid has been on false pretences, and the landlord obtained that money by deception. That's a serious offence called fraud.

Faced with that argument, they might be persuaded to "buy you out" - compensate you for cost and hassle of having to move.

I hate to say this, but if you don't want to move, it sounds like a case to take proper legal advice. But if your real needs go beyond October, you're going to have to move anyway, ...

[Bloo Loo]

you have a 12 month contract.

that is the main condition

the break clause could be a minor condition and would be overriden by the main condition.

indeed, the whole first page of your AST would state the start and end dates and the number of days.

whats the point of a 12 month contract when there is a break clause they can enforce?

I sure the rental brains here will have an answer for you.

My LL queried the break clause in the contract issued by the EA...he didnt think it was possible unless another major term was broken, and only then with a court order,

we never needed it and are on a rolling AST with 12 months agreed.

[Tiger Woods?]

It has been some time since I looked into this sort of stuff - I'm sure someone more knowledgable will come along. However, landlords do tend to have more rights of possession if the house was at some stage their family home.

See for instance: http://www.propertyhawk.co.uk/index.php?page=bible&id=138

I don't know much about how break clauses affect possession i.e. how can one have a 12 month AST if there is a 6 month break clause?

Anyhow, I suspect you have probably been had by a bit of a p****. I think you are correct in asserting that they had no intention of ever letting you rent for 12 months. I'd normally not suggest the following, but it looks like your LL has lied to you and will have caused you great inconvenience and expense. You could consider:

(1) Sit in the house, not pay rent, and make them get a court order to have you evicted. That should waste some of their money and give you a few months, but I never said that and you may not want the legal hassle.

(2) Alternatively, once they have moved back in, why not send a letter to the school's principal/LEA explaining what your landlord has done. They may not take too kindly to it and take them to court for deception; it has happened.

People like this deserve everything they get.

Edited May 15, 2010 by D'oh

[Damocles]

We need to know the exact wording of the break clause and the exact wording of the notice.

[zebbedee]

There are solicitors who will give you free consultations - 10 mins or so. Find one, go along well prepared and they will advise. We know one in London who does this, no messing about gives very straight forward advise. eg (different problem).. ' no you can't sue for slander you are not famous.... next...

And yes I would send a letter to the school's principal/LEA explaining what your landlord has done ... after you have moved.

I'm pretty sure that the 2 months norice from the tenant cannot be enforced if it was a standard term in the contract provided to you and not specifically negotiated. As for the 12 month contract with a break clause in the landlords interest, I think that also depends if it was a standard term in the contract provided or negotiated with you. If it was provided as such without negotiating it probably comes under the unfair terms in consumer contracts and a court would probably chuck it-(wheres the point in a 12 months contract that is only 6 months on the landlords whim). But IANAL, like D'oh said tell him to f off and wait for the court summons whilst looking for somewhere else (sounds like you'd be better off out of it), pay the rent though, and if you get hassle from him phone the police for an attempt at an illegal eviction.

Edited May 16, 2010 by zebbedee

[tim123]

Ignoring the break clase.

ISTM that the notice is completly invalid because it does not terminate the tenancy at the end of a rental period.

All other considerations are therefore irrelevent.

tim

[Planner]

You have signed a contract with a 6 month breakclause. You are obviously aware of what a 6 month breakclause is and what it means for the length of your tenancy i.e. you are not guaranteed a 12 month stay.

The LL/LA have confused issues (at least in posters minds on here) by invoking the breakclause via s.21. Never theless, I see no reason why a s.21 cannot be used to invoke the breakclause, in deed it might actually be quite sensible should you fail to move after the notice on it runs out.

From what you have posted, the breakclause says:

"the landlord may bring the tenancy to an end any time before the expiry of the term but not before sixth months from the commencement date of this agreement whichever shall be later to the tenant not less than two months written notice..."

Have they complied with this?- Well, they have given you two months notice (8th April to 7th June); the notice doesnt attempt to end the contract anythime within the first six months; and you have recieved it in writing. They have therefore complied with the breakclause and the fixed term of your agreement will end on the 7th June 2010. If you remain in occupation after this date a periodic tenancy will arise (hence why it might be quite sensible to invoke the break via s.21).

Options therefore are:

- Move as requested;

- Let the landord take you to court under the s.21 (b ) notice (assuming its correct in a statutory sense - note it is correct in the contractural sense discussed above) - you will be responsible for costs and any unpaid rent;

- Let the landlord take you to court once correct notice is served (assuming the s21 (b ) notice already servedis incorrect in a stautory sense im not convenienced it is incorrect) - you will be responsible for costs and any unpaid rent.; or

- Try and negotiate someother compromise that suits you both.

My advice would be 'pick your battles'. This is ultimatley one you are not going to win. It can end positivley, you find another place, get a reference etc OR it can potentially end negativley, in court, with ballifs, potentially CCJ for unpaid rent and no reference.

For the record, theres no 'fraud' in this situation and you should never ever withold rent for this kind of situation.

Good luck.

Edited May 18, 2010 by Planner

[Matt Henson]

You have signed a contract with a 6 month breakclause. You are obviously aware of what a 6 month breakclause is and what it means for the length of your tenancy i.e. you are not guaranteed a 12 month stay.

The LL/LA have confused issues (at least in posters minds on here) by invoking the breakclause via s.21. Never theless, I see no reason why a s.21 cannot be used to invoke the breakclause, in deed it might actually be quite sensible should you fail to move after the notice on it runs out.

From what you have posted, the breakclause says:

"the landlord may bring the tenancy to an end any time before the expiry of the term but not before sixth months from the commencement date of this agreement whichever shall be later to the tenant not less than two months written notice..."

Have they complied with this?- Well, they have given you two months notice (8th April to 7th June); the notice doesnt attempt to end the contract anythime within the first six months; and you have recieved it in writing. They have therefore complied with the breakclause and the fixed term of your agreement will end on the 7th June 2010. If you remain in occupation after this date a periodic tenancy will arise (hence why it might be quite sensible to invoke the break via s.21).

Options therefore are:

- Move as requested;

- Let the landord take you to court under the s.21 (b ) notice (assuming its correct in a statutory sense - note it is correct in the contractural sense discussed above) - you will be responsible for costs and any unpaid rent;

- Let the landlord take you to court once correct notice is served (assuming the s21 (b ) notice already servedis incorrect in a stautory sense im not convenienced it is incorrect) - you will be responsible for costs and any unpaid rent.; or

- Try and negotiate someother compromise that suits you both.

My advice would be 'pick your battles'. This is ultimatley one you are not going to win. It can end positivley, you find another place, get a reference etc OR it can potentially end negativley, in court, with ballifs, potentially CCJ for unpaid rent and no reference.

For the record, theres no 'fraud' in this situation and you should never ever withold rent for this kind of situation.

Good luck.

Planner, should L not envoke the break clause and issue a S21( similtaneously as the breakclause has brought about the end of the fixed term. I am thinking an s21 alone simply requires T to leave at the end of the contractual term.

Assumes L did not send a cover letter evoking the BC

Also is the S21 not invalid as it needs to expire after the full two month notice i.e.after the 9th and not the 7th

[Planner]

Planner, should L not envoke the break clause and issue a S21( similtaneously as the breakclause has brought about the end of the fixed term. I am thinking an s21 alone simply requires T to leave at the end of the contractual term.

Assumes L did not send a cover letter evoking the BC

Also is the S21 not invalid as it needs to expire after the full two month notice i.e.after the 9th and not the 7th

In this instance the s.21 b notice is serving two functions:

1) a contractural action of invoking the breakclause on the 7th June

2) a statutory action ofa notice seeking possesion (which should say after the 7th June in a s.21 (b ) notice - (O/P does it say after the 7th of June?)

The s.21 (b )notice can do both, there is not requirement for a covering letter etc. All requirements of the breakclause are met by the form of the s.21 (b )notice.

I dont believe there is a requirement for a s.21 (b ) notice to end at the end of a rental period in the same way as a s.21 (a ) notice, merley it must require possesion after the end of the fixed term, which in this case is the 7th June.

[Damocles]

There is apparently (though I cannot quote it) judicial authority for the view that a section 21 notice can operate as a break notice (or it could be vice versa). However, whether it is always the case has to depend on there being no inconsistency between the statutory requirements and the contractual requirements. Until we know what the break clause says and what the notice says we cannot comment on the effectiveness of the notice either to break the term or to operate as a section 21 notice.

[Planner]

There is apparently (though I cannot quote it) judicial authority for the view that a section 21 notice can operate as a break notice (or it could be vice versa). However, whether it is always the case has to depend on there being no inconsistency between the statutory requirements and the contractual requirements. Until we know what the break clause says and what the notice says we cannot comment on the effectiveness of the notice either to break the term or to operate as a section 21 notice.

The O/Ps first post contains details of what they have been served and the wording of the breakclause.

[jorsher]

Thank you all for your replies,

Today I visited our local councils housing advice centre. I showed them the contract and section 21B notice. I was advised that the notice was not valid because it was not served with a FULL 2 months notice. .

- Notice was served to us 8th April 2010 asking for possession on the 7th May 2010, this is ONE day short of 2 months.

- I was told that because possession was required BEFORE our 12 month agreement is due to expire we need 2 months notice in full

- A correct notice served on the 8th April 2010 should have asked for possession on the 8th June 2010.

Do you guys think this advice is correct?

Thanks

Edited May 19, 2010 by jorsher

[Rozza]

Thank you all for your replies,

Today I visited our local councils housing advice centre. I showed them the contract and section 21B notice. I was advised that the notice was not valid because it was not served with a FULL 2 months notice. .

- Notice was served to us 8th April 2010 asking for possession on the 7th May 2010, this is ONE day short of 2 months.

- I was told that because possession was required BEFORE our 12 month agreement is due to expire we need 2 months notice in full

- A correct notice served on the 8th April 2010 should have asked for possession on the 8th June 2010.

Do you guys think this advice is correct?

Thanks

Well you would hope they know what they are on about.

I doubt you will get firmer advice from here than the advice centre as these topics have many differing views, my own view would be.

Notice served on 8th, this is not a full day as u got it during the day, therefore notice period starts from the 9th, 2 months from the 9th is the 8th June. But im as uninformed as the next guy.

I guess it depends if its worth the time and hassle to dispute, best case as i see it you have delayed your notice by a few weeks, if its invalid they will re serve it correctly.

Edit to say, didnt spot the detail about payment date being the 10th, the notice is invalid simple as that as you cant serve part way through a month apart from if you are giving more notice than required.

Edited May 19, 2010 by Rozza

[Planner]

Thank you all for your replies,

Today I visited our local councils housing advice centre. I showed them the contract and section 21B notice. I was advised that the notice was not valid because it was not served with a FULL 2 months notice. .

- Notice was served to us 8th April 2010 asking for possession on the 7th May 2010, this is ONE day short of 2 months.

- I was told that because possession was required BEFORE our 12 month agreement is due to expire we need 2 months notice in full

- A correct notice served on the 8th April 2010 should have asked for possession on the 8th June 2010.

Do you guys think this advice is correct?

Thanks

- As far as I can see 8th of April to 7th of June is two months. 8th of April to 8th of June would be two months and one day.

Put it another way - whats 12 months? is it the 1st January 2010 to the 31st December 2010 or is it the 1st of January 2010 to the 1st of January 2011? - ones 365 days and ones 366 days.

- I note that you where served the notice on the 7th April so the 8th of April will 'count' as a full day.

- Rozza a s.21 b notice doesnt have to coincide with rental periods. The requirements for a s.21 b notice are at least two full months notice to be served in the fixed term to end after (any point after) the end of the fixed term.

- Pedro for the Fed the O/P is still within the fixed term of their contract. They must serve TWO months notice, not one as you have suggested.

Again my suggestion would be pick your battles, this one isnt a winner.

Edited May 19, 2010 by Planner

[Rozza]

Again my suggestion would be pick your battles, this one isnt a winner.

Totally agree, you will just be delaying the inevitable, move on and then have that chat about the school place, it might make u feel better.. but probably not.

Good luck with the move

[Planner]

planner i was trying to say the OP can give one months notice during the section 21 two months,that's what I was referring to.thanks for pointing out that I may have not been clear.

Pedro your still not right. The OP is still within the fixed term of their contract until the 9th of October. They must serve two months as per the breakclause, until the tenancy becomed periodic.