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Beware The Sword Of Damocles


Te Mata
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Excellent post wayne you are dead right it's important that tenants recognise the Sword of Damocles method of serving the S21. In case there is any doubt:

There's noting wrong with the landlord serving notice more than two months in advance but really the landlord should only serve notice if they want the tenant to leave.

The Sword of Damocles is a method whereby the landlord that DOES NOT want the tenant to leave serves a S21 notice. This is done so that (months or even years later) when the landlord then does want the tenant to leave the notice has already expired and the landlord doesn't have to wait another two months to start chucking the tenant out. This relies on the tenant ignoring the S21 so that they don't move out, usually done by deceiving the tenant into "not worrying" about the notice.

Examples of the lies told about the meaning of the S21 are:

http://forums.moneysavingexpert.com/showpo...mp;postcount=48

I always explain to the tenant that the S21 is a document required by the insurance company, but, as long as everyone is happy to continue then the tenancy will become periodic after the fixed term.

http://forums.moneysavingexpert.com/showpo...mp;postcount=55

re what tenants think of a Section 21 included in the AST - i tell my new tenants, that this is a legal requirement, which i will not be put into force unless the tenancy agreement terms are breached - they all seem perfectly happy with that - not one of them has ever said "i'd best leave now then" as the Section 21 date arrives.

http://forums.moneysavingexpert.com/showpo...mp;postcount=67

It's one of the few times and ways the landlord can get an edge in the situation. I used to tell the tenant that it was just a legal necessity to cover me (the landlord) if I needed to get them out at a later date, but obviously it could not start to take affect until the initial tenancy period was over anyway.

This deceit works as:

1. It leads tenant into ignoring the months old S21 notice not realising that it WAS their notice and they won't get more. Not many tenants realise that the notice stays valid even once the tenancy goes periodic. In fact the S21 notice is valid indefinitely unless withdrawn by the landlord, invalidated by the landlord, or a new AST is signed.

2. If the landlord has assured the tenant he can stay on "should the tenancy run smoothly" then technically the S21 notice is now invalid but the tenant can't prove it as landlords know they mustn't put it in writing.

3. If there is a valid expired S21 the tenant is free to leave anytime without giving notice, even months later, but if a tenant does that chances are the landlord will try to charge extra rent in lieu of notice from the tenant.

Examples of tenants who didn't realise the notice was served:

http://forums.moneysavingexpert.com/showpo...mp;postcount=34

Oh pooh!!!!

I've just managed to have a look at the paperwork with our flat.. and there is one piece of paper alongside the contract that IS the Section 21.

We would have signed it at the same time as getting the contract, the day that we moved in.

http://forums.moneysavingexpert.com/showpo...p;postcount=135

To be honest, I think we probably just thought it was another part of the tenancy agreement and as there was nothing on it for us to sign, did not check up what it was - if we had to sign it we would definitely checked it out!

I don't think I have had anything like it in previous tenancies, and even if I had, it's never been a problem because I've only stayed in one place for more than a year, due to flatmates moving on, job changes, landlords selling up etc.

The thing that made me look up the form was reading another thread, which mentioned the section 21. That reminded me of the letter we just had and I thought we should check it out.

The "sword of Damocles" is most damaging if the tenancy is allowed to go periodic with a valid expired S21 in place. The tenant can just be asked to leave. Sometimes the landlord who served the original S21 doesn't even realise this:

http://www.rla.org.uk/rlaforum.exe/landlor...s&archive=0

The section 21 notice was signed when the tenant signed the AST when he first moved in (as advised by RLA) I have not even asked the tenant to move out yet. I basically just want to know what I formally have to say to him and how long the notice period is that I have to give him. Example, can I go to the tenant tomorrow and say that I want him out by 3rd July, as he has signed the section 21 agreement he can not agrue with that?

If a renewal is going to be signed then the SoD is still a pain as it weakens the tenants negotiating position. Say the landlord wants to put the rent up. If there isn't much time till the end of the fixed term then the tenant has to agree the new terms or move out. Without the SoD the tenant would be fine letting the tenancy go periodic giving them more time to negotiate the rent. So the SoD puts pressure on the tenant to sign up to whatever terms the landlord is offering or face having to move in a rush. Of course the offer of a renewal should be enough to invalidate the S21 but the tenant will have trouble proving that and so should conduct the renewal negotiations in writing as wayne has said.

Besides if a tenant has stayed several six month terms and is served a S21 each time the tenancy is renewed how can he be expected to take the S21 seriously? He'll think "oh just anther routine S21 that doesn't matter" and then at the end of one term get asked to leave without further notice.

Not that the tenant has to leave when a S21 notice expires. But if he doesn't leave then the landlord can go to court for possession which is going to damage the tenant's references and the tenant will have to pay the landlord's court fees.

To be valid the S21 does not require the tenants signature but landlord will often ask for this to prove the notice has been served. If a tenant is asked to sign an S21 and the AST on the same day (typically the day they move in) then the tenant should put the date and TIME down signing the S21 first. The tenant should do this before the keys are handed over. The reason being an S21 is not valid if it is served before the tenancy has started, again difficult to prove but putting the time down should help.

The new deposit rules affect this too. An S21 is not valid if served before the deposit is protected so expect to be asked for the deposit early or for the S21 to be served a bit later so the SoD still applies.

Note to the mods: Please can you pin this thread. The Sword of Damocles has come up before:

http://www.housepricecrash.co.uk/forum/ind...c=23126&hl=

http://www.housepricecrash.co.uk/forum/ind...c=36267&hl=

and got lost in the mass of posts. Tenants need to be aware of the SoD and many are not.

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I got two wierd extra clauses at the end of the agreement which l have to initial seperately:

The landlord gives notice to the tenant that possession of the premises may be sought under Ground 1 of Part 1 of schedule 2 of the Hosing act 1988 in that:

Paraphrased "might want to live there himself"

and

The landlord gives notice to the tenant that possession of the premises may be sought under Ground 2 of Part 1 of schedule 2 of the Hosing act 1988 in that:

Paraphrased "might want to sell it"

Is this a way of giving notice like the section 21 without it conferring any additional rights on the tenant (i.e. of leaving immediately)?

If not what does it mean??

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Hmm, how much exactly?

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

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

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

And the rent, £18,000 a year.

£13,500 a year saving.

And HPC-proof....

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

Yeah not sure anyone is gonna buy a 500k house with 100% loan lol! But anyway, the real prob and the reason Id never rent again, is that you can be evicted on a whim. I was kicked out of my 2nd last rented place. Sure I got 2 months notice. Wow 2 whole months!

Very stressful and that was a 20 something guy moving from a flat. Imagine if that was uprooting a family from a 5 bed house as per example above. Never underestimate the stress of moving kids from their homes. They just dont get it. Packing up a whole house? Well we've all done it - total stress from start to finish.

And then you dont get a choice in the timing. I had booked a holiday in what became my last two weeks of tenancy!! Maybe its a bad time at work, maybe a critical point in your childs education.

And then there's the usual stuff, you cant (or rather wouldnt want to) improve the place, invest in a gorgeous garden, blah blah.

But these things are down to the individual and we will all place different values on this kind of experience. Having been through I would be happy to pay to avoid it happening again. It is actually normal for mortgages to start out more than rents, but then a mortgage is better because it is fixed (IR fluctuations aside) for 25 years and you get a house at the end.

But this is text book stuff, just go to a site like mortgagesexposed and check out the spreadsheets. Yep in any normal conditions renting is better in the short term - its not rocket science. But why would you move into a 5 bed house with short term in mind. I dunno, each to their own. Its one of those agree to disagree things becuase its a personal choice. Im just glad I'll be accommodation cost free in 25 yrs, but maybe living in a big house now matters more to you.

GL.

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I got two wierd extra clauses at the end of the agreement which l have to initial seperately:

The landlord gives notice to the tenant that possession of the premises may be sought under Ground 1 of Part 1 of schedule 2 of the Hosing act 1988 in that:

Paraphrased "might want to live there himself"

and

The landlord gives notice to the tenant that possession of the premises may be sought under Ground 2 of Part 1 of schedule 2 of the Hosing act 1988 in that:

Paraphrased "might want to sell it"

Is this a way of giving notice like the section 21 without it conferring any additional rights on the tenant (i.e. of leaving immediately)?

If not what does it mean??

Well it's nothing to do with the Sword of Damocles, it's not to do with the Section 21.

If you are going to be given notice for these you will be served a Section 8 notice. This can be used to get possession before the fixed term has come to an end although the details vary depending on which ground is used. So those clauses are not your actual notice. What they are is notification that they are grounds on which you may be served notice.

http://www.letlink.co.uk/letting-factsheet...n-8-notice.html

Some of the mandatory grounds, called 'prior notice' grounds, can only be used if the landlord informed the tenant in writing before the tenancy started that he intended one day to ask for his property back using those grounds.

.

.

c. Other Mandatory Grounds (Prior Notice)

The Act also makes provision for possession to be granted on the following grounds:

Ground 1: that the landlord used to live, or intends to live in the property as his only or principal home.

Ground 2: that the mortgagee is claiming possession. NB this can only be of use where the mortgage predates the tenancy.

See here for the length of notice for section 8:

http://www.lettings-landlords.co.uk/info/rec_pos.html

Apart from Grounds 3,4,8,10,11,12,13,14,15 and 17 where 2 weeks notice will suffice, 2 months notice must be given to the tenant that you intend to seek possession through the Courts.

Edited by Elvis-Has-Sold-The-Building
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is there history of court cases over early issued s21s?

I know the first thing I would be doing is telling the judge that the landlord told me I had to sign it for insurance purposes and I would then expect the judge to rule the s21 unlawfully issued and as such invalid. The fact there would also be a 6 month gap between the issue of the document and applying for eviction would also go in the tenant favour I think as the judge will be wondering why its taken the landlord 4 months to proceed with eviction.

Personally as well I dont think I would ever sign a 6 month tenancy agreement, I feel 12 months is short term and 6 months seems just not worth bothering with as moving is very stressful and taking into account it takes 1-2 months to settle down and get setup in the property and normally plan a move 1-2 months again there would only be 2 months out of the 6 living settled down. Not much security there especially with one of those 21s pre issued.

Edited by Chrysalis
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is there history of court cases over early issued s21s?

I know the first thing I would be doing is telling the judge that the landlord told me I had to sign it for insurance purposes and I would then expect the judge to rule the s21 unlawfully issued and as such invalid. The fact there would also be a 6 month gap between the issue of the document and applying for eviction would also go in the tenant favour I think as the judge will be wondering why its taken the landlord 4 months to proceed with eviction.

Personally as well I dont think I would ever sign a 6 month tenancy agreement, I feel 12 months is short term and 6 months seems just not worth bothering with as moving is very stressful and taking into account it takes 1-2 months to settle down and get setup in the property and normally plan a move 1-2 months again there would only be 2 months out of the 6 living settled down. Not much security there especially with one of those 21s pre issued.

The thing with the s21 is that it is a no fault notice. There need not be any reason for serving it.

Therefore there is no defence... except if the notice is invalid through:

1/ It not being filled out correctly; wrong dates or whatever

2/ It having been withdrawn as discussed above (whether intentionally or unwittingly by negotiating a new or periodic lease)

It has to be proven too, so get everything in writing.

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There is a way this can backfire for the Landlord. If they've issued an S21 at the start of the tenancy and you want to stay beyond 6 months, you can do as suggested and write after 4 months to enter into negotiations. However, if you don't want to stay beyond 6 months, but they are expecting you will, you can hand back the keys on the day, and walk off. You don't have to give any notice at all. Then the LL is stuck with a void for however long it takes to get new tenants. :P

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There is a way this can backfire for the Landlord. If they've issued an S21 at the start of the tenancy and you want to stay beyond 6 months, you can do as suggested and write after 4 months to enter into negotiations. However, if you don't want to stay beyond 6 months, but they are expecting you will, you can hand back the keys on the day, and walk off. You don't have to give any notice at all. Then the LL is stuck with a void for however long it takes to get new tenants. :P

Some landlords can give all LLs a bad name.

It seems that the same could apply to tenants... ;)

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

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

:D

Yeah, it's probably now got cameras in it...

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Some landlords can give all LLs a bad name.

It seems that the same could apply to tenants... ;)

True enough, but in your quoting quantinghome's post, you are inferring that only a bad tenant would do as he suggests.

Not true, because in fact leaving at the end of the term is exactly what the S21 is requiring him to do. There is no need for the tenant to give notice because the tenant has already received notice from the LL. He/she would only be doing what the s21 is asking him to do.

The fact that the LL is using a nasty little loophole coupled with deception, and actually wants the T to stay (under compromised conditions, i.e. no right to notice) is irrelevant. The tenant is not being a bad tenant, just responding properly and legally to an @rsehole LL.

Until the subsection of LLs who practice the SoD desist, or until the Gu'mint changes the legislation to close this loophole, they deserve every bit of inconvenience the tenant can legally impart. I strongly suggest that tenants do not do damage or breach any fair contract conditions, but no notice is fair game.

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True enough, but in your quoting quantinghome's post, you are inferring that only a bad tenant would do as he suggests.

Not true, because in fact leaving at the end of the term is exactly what the S21 is requiring him to do. There is no need for the tenant to give notice because the tenant has already received notice from the LL. He/she would only be doing what the s21 is asking him to do.

The fact that the LL is using a nasty little loophole coupled with deception, and actually wants the T to stay (under compromised conditions, i.e. no right to notice) is irrelevant. The tenant is not being a bad tenant, just responding properly and legally to an @rsehole LL.

Until the subsection of LLs who practice the SoD desist, or until the Gu'mint changes the legislation to close this loophole, they deserve every bit of inconvenience the tenant can legally impart. I strongly suggest that tenants do not do damage or breach any fair contract conditions, but no notice is fair game.

I understand completely what you're saying, and, apart from the usual 'two Wrights don't make a Smith', I agree with you.

A better example of 'he who lives by the rulebook...' I've never seen! :)

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True enough, but in your quoting quantinghome's post, you are inferring that only a bad tenant would do as he suggests.

Not true, because in fact leaving at the end of the term is exactly what the S21 is requiring him to do. There is no need for the tenant to give notice because the tenant has already received notice from the LL. He/she would only be doing what the s21 is asking him to do.

The fact that the LL is using a nasty little loophole coupled with deception, and actually wants the T to stay (under compromised conditions, i.e. no right to notice) is irrelevant. The tenant is not being a bad tenant, just responding properly and legally to an @rsehole LL.

Until the subsection of LLs who practice the SoD desist, or until the Gu'mint changes the legislation to close this loophole, they deserve every bit of inconvenience the tenant can legally impart. I strongly suggest that tenants do not do damage or breach any fair contract conditions, but no notice is fair game.

Thanks. Couldn't have put it better myself. Now if you'll excuse me I have an urgent appointment with a flame thrower and the LL's new leather sofa :ph34r:

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I understand completely what you're saying, and, apart from the usual 'two Wrights don't make a Smith', I agree with you.

A better example of 'he who lives by the rulebook...' I've never seen! :)

I'm with Wayne on this and I don't quite see why you are being critical of a tenant who leaves when the S21 notice issued by his landlord asks him to. If you were criticising a tenant for staying on after the notice has expired then I'd understand your point of view.

I would never stay on past expiry of the S21 notice issued by my landlord as I value my references too much (unless it's properly withdrawn before I'm comitted to move). I live by the rulebook where the roof over my head is concerned.

Tenants who don't give a monkey's about their references can of course ignore the landlord's notice and make him drag them through the courts to get his property back. Is that what you would prefer?

Or is it you would rather tenants on the one hand ignore the S21 and on the other comply with it depending on the landlord's whim? Only the way I read the SoD that's exactly what the SoD'ing landlords want :rolleyes:

Edited by Elvis-Has-Sold-The-Building
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The thing with the s21 is that it is a no fault notice. There need not be any reason for serving it.

Therefore there is no defence... except if the notice is invalid through:

1/ It not being filled out correctly; wrong dates or whatever

2/ It having been withdrawn as discussed above (whether intentionally or unwittingly by negotiating a new or periodic lease)

It has to be proven too, so get everything in writing.

Thats my point, a judge can very easily rule a early issued s21 invalid. If its invalid its worthless. Its a loophole in the current law but a judge has the power to decide if someone is taking the **** and rule accordingly.

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Thats my point, a judge can very easily rule a early issued s21 invalid. If its invalid its worthless. Its a loophole in the current law but a judge has the power to decide if someone is taking the **** and rule accordingly.

You know what? I totally agree with you, but we can only go by what IS happening, not what we think should happen.

There have apparently been cases where an s21 was issued 6 years previous and still ruled valid by a judge. Judges are not ruling early s21s invalid, because the s21 notice does not signal intention, only requirement; a very important distinction.

It's not worth the risk of relying on the judge's common sense.

Edited by wayneL
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I'm with Wayne on this and I don't quite see why you are being critical of a tenant who leaves when the S21 notice issued by his landlord asks him to. If you were criticising a tenant for staying on after the notice has expired then I'd understand your point of view.

I would never stay on past expiry of the S21 notice issued by my landlord as I value my references too much (unless it's properly withdrawn before I'm comitted to move). I live by the rulebook where the roof over my head is concerned.

Tenants who don't give a monkey's about their references can of course ignore the landlord's notice and make him drag them through the courts to get his property back. Is that what you would prefer?

Or is it you would rather tenants on the one hand ignore the S21 and on the other comply with it depending on the landlord's whim? Only the way I read the SoD that's exactly what the SoD'ing landlords want :rolleyes:

Which part of 'I agree with you' are you struggling with exactly? ;)

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You know what? I totally agree with you, but we can only go by what IS happening, not what we think should happen.

There have apparently been cases where an s21 was issued 6 years previous and still ruled valid by a judge. Judges are not ruling early s21s invalid, because the s21 notice does not signal intention, only requirement; a very important distinction.

It's not worth the risk of relying on the judge's common sense.

Of course and you are right to bring this to peoples attention, as there is also every chance a judge can uphold the s21 and the tenant is out.

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There is a little bit of good news on this front. There is currently a review of rental legislation and there is a recommendation that s21 & s8 notices have a "use it or lose it" clause.

The suggestion is that s21 notices must be enforced within 4 month otherwise become invalid. This will scupper the lousy SoD use of s21 as is being done at the moment.

Nowhere close to becoming law yet, but at least it's being addressed.

The links are on my other machine, will post later.

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Of course and you are right to bring this to peoples attention, as there is also every chance a judge can uphold the s21 and the tenant is out.

That's right and so it's all about which of the landlord or tenant is most believable, (although my aim would be to get the landlord to back down before it got to court, if I really hadn't had time to arrange moving, as court would be stressfull). It's worth the tenant collecting a paper trail as they go, starting from the beginning by saving the ad for the property showing the property is advertised as a long term let. Also if the tenant confirms his offer for the property in writing (I use email) confirming any discussions had with the landlord/agent, including the fact that currently the plan is the property is available for let long term and the tenant is wanting a long term let then that all adds towards proving how things were. If after that the landlord issues notice on day 1 of the tenancy, only days after assuring the tenant it's a long term let then that's useful ammo for proving the landlord isn't credible. The tenant can back up the claim that the landlord invalidated the S21 by saying the tenant can stay should all go well. (Of course circumstances can change and the landlord can genuinely want the tenant to leave and issue notice but that's unlikely to happen in the few days before the tenancy starts).

If using an agent and the agent says not to worry as issuing an S21 on day 1 is routine and they do it for everyone that's also useful ammo to note down as it shows you that in issuing the S21 they didn't require the tenant should leave when the notice expires.

Besides a paper trail is useful for other reasons. I was interested in a property advertised with a garage but the landlord changed his mind before the tenancy started and wanted to retain the garage for his own storage without reducing the rent. I had the ad so could point out what was on offer ...

A paper trail is always worth collecting and the tenant can help create it by confirming any verbal discussions in writing and sending this to the agent/landlord ...

Edited by Elvis-Has-Sold-The-Building
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There is a little bit of good news on this front.

[...]

The links are on my other machine, will post later.

Interesting news, WayneL. It'd be nice to see those links! :)

That's right and so it's all about which of the landlord or tenant is most believable, (although my aim would be to get the landlord to back down before it got to court, if I really hadn't had time to arrange moving, as court would be stressfull). It's worth the tenant collecting a paper trail as they go, starting from the beginning by saving the ad for the property showing the property is advertised as a long term let. Also if the tenant confirms his offer for the property in writing (I use email) confirming any discussions had with the landlord/agent, including the fact that currently the plan is the property is available for let long term and the tenant is wanting a long term let then that all adds towards proving how things were. If after that the landlord issues notice on day 1 of the tenancy, only days after assuring the tenant it's a long term let then that's useful ammo for proving the landlord isn't credible. The tenant can back up the claim that the landlord invalidated the S21 by saying the tenant can stay should all go well. (Of course circumstances can change and the landlord can genuinely want the tenant to leave and issue notice but that's unlikely to happen in the few days before the tenancy starts).

If using an agent and the agent says not to worry as issuing an S21 on day 1 is routine and they do it for everyone that's also useful ammo to note down as it shows you that in issuing the S21 they didn't require the tenant should leave when the notice expires.

Besides a paper trail is useful for other reasons. I was interested in a property advertised with a garage but the landlord changed his mind before the tenancy started and wanted to retain the garage for his own storage without reducing the rent. I had the ad so could point out what was on offer ...

A paper trail is always worth collecting and the tenant can help create it by confirming any verbal discussions in writing and sending this to the agent/landlord ...

I think that's good advice, EHSTB.

I plan to make use of rented accommodation, hopefully in the fairly near future (months rather than years), and tips like this are always useful!

With respect to S21, I've been wondering how to approach the situation. As a consumer, I often play the 'well, I can always go to someone else' card. But, of course, if all the agents in town issue S21s as a matter of course, then there is no one else to go to. (At this stage, I have no idea how many of the lettings agents in my town do issue S21s up-front; could be none, could be some, could be all.)

If it turns out that pretty much all letting agents issue S21s (stopping me from easily playing the 'go somewhere else' card), what do you think is the right approach? I'd prefer to find a way of simply not being issued one than gathering an audit trail for a court hearing I'd rather not have[1]! ;)

[1] Although that won't stop me accumulating an audit trail, of course... :rolleyes:

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here's the link:

http://www.lawcom.gov.uk/renting_homes.htm

There's A LOT of reading, but here is the relevant section that I found in volume 1

Possession notices

2.40 We recommend a number of detailed changes to the law relating to possession

notices.

23 Cl 211.

36

(1) Under the principle of “use it or lose it”, if the possession notice is not

followed up by actual proceedings within six months, the notice lapses.

(The period is four months where possession is sought on the notice-only

ground.) Contract-holders should not be kept in a state of uncertainty for

unreasonably long periods.

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