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Beware The Sword Of Damocles


Te Mata
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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.

Thanks for taking the trouble to look it up and reply!

Two things:

1. When this document refers to 'possession notices', this presumably includes the S21, but are there other forms of possession notice?

2. "The period is four months where possession is sought on the notice-only ground." I'm afraid this went over my head. Do you understand what it means?

Thanks again!

EDIT: An additional question: When (if ever) does this document come into force? Or is just a recommendation?

Edited by Ologhai Jones
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Thanks for taking the trouble to look it up and reply!

Two things:

1. When this document refers to 'possession notices', this presumably includes the S21, but are there other forms of possession notice?

Yes. There is the section 8 notice for possession for which there must be grounds for possession, as opposed the the s21 which requires no reason whatsoever.

2. "The period is four months where possession is sought on the notice-only ground." I'm afraid this went over my head. Do you understand what it means?

I understand it to mean that notice only is s21. But might be wrong, will have to check up on that.

EDIT: An additional question: When (if ever) does this document come into force? Or is just a recommendation?

Just recommendations at present... who knows if, or when they might become law. <_<

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2. "The period is four months where possession is sought on the notice-only ground." I'm afraid this went over my head. Do you understand what it means?

I understand it to mean that notice only is s21. But might be wrong, will have to check up on that.

Ah, I see. Maybe 'notice-only' means notice without reason?

If this does refer to S21, then this will have a significant effect: if S21s were to lapse after four months, then issuing them up-front would have no effect at all (as six months is the minimum tenancy agreement anyway), yes?

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I understand it to mean that notice only is s21. But might be wrong, will have to check up on that.

Ah, I see. Maybe 'notice-only' means notice without reason?

If this does refer to S21, then this will have a significant effect: if S21s were to lapse after four months, then issuing them up-front would have no effect at all (as six months is the minimum tenancy agreement anyway), yes?

Exactly.

The SoD use of s21 has not escaped the notice of lawmakers as a fundamental breech of the "spirit" of the Housing Act.

Judges have been super pedantic about wording and dates on the notices, throwing out whatever is not perfect in the same. This has led many LLs to believe the judiciary are anti LL, but I reckon it's more to do with the misuse of the section. But it's all they can legally do; if everything is in order, they are obliged to evict by law no matter how much time has passed, unless:

...the s21 SoD s21 is invalidated by getting the LL to invite you to stay on by offering you a continuing periodic lease, or a new fixed term. This is best done two months before the end of the initial fixed term so that your 2 months notice is always preserved.

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...the s21 SoD s21 is invalidated by getting the LL to invite you to stay on by offering you a continuing periodic lease, or a new fixed term. This is best done two months before the end of the initial fixed term so that your 2 months notice is always preserved.

As I said a couple of posts or so ago, ideally, I'd like to discover that not all letting agents in my area serve the S21 as a 'standard part of the paperwork' at the commencement of an agreement so that I'm in a position to say, 'Well, if you're insistent on serving this S21, I'll go elsewhere.'

Alternatively, now being somewhat more savvy that the average tenant, I wonder if I could just tell them that it's unethical to serve S21s at commencement (and maybe brandish the recommendations you linked to)... They will either tell me to be on my way, or perhaps crumble and make me a special case! ;)

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As I said a couple of posts or so ago, ideally, I'd like to discover that not all letting agents in my area serve the S21 as a 'standard part of the paperwork' at the commencement of an agreement so that I'm in a position to say, 'Well, if you're insistent on serving this S21, I'll go elsewhere.'

Alternatively, now being somewhat more savvy that the average tenant, I wonder if I could just tell them that it's unethical to serve S21s at commencement (and maybe brandish the recommendations you linked to)... They will either tell me to be on my way, or perhaps crumble and make me a special case! ;)

Personally, I wouldn't let on that you are savvy about this issue at all. I wouldn't say anything at all until 2 months before the fixed term ends. That's when I would send the letter to open the dialogue about continuing past the fixed term. Once they answer in the affirmative, bang you got 'em.

From that point the SoD is toast.

Telegraph that you are on to them, and they'll swallow razor blades rather than give you anything in writing.

Be dumb like a fox. ;)

Note: the idea is not to put one over on the LL, just to maintain your statutory rights.

Edited by wayneL
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Elvis-Has-Sold-The-Building: 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:

wayneL: EXACTLY!!!

Here's an example. These two posts are written by the same landlord poster on MSE, both about what happens when the S21 expires. The difference is whether the OP's landlord wanted the OP to stay on or not:

Case 1: OP's landlord wants the OP to leave so the OP is advised to take the S21 seriously:

Bottom line is that, presuming the landlord has correctly served you your 2 months notice (known as section 21) they are entitled to vacant possession at the end of the tenancy. Should you refuse to move out, the landlord could go to court and force you out. A judge would probably give you 14 days to vacate before the landlord could go back to court and get the baliffs sent in to force you out. A section 21 notice is mandatory ie the judge has no discretion unlike when people are behind with the rent and a lenient jusge can give you time to pay.

That's a worst case scenario. In practice your landlord may be helpful, particularly if you are happy for him to show potential buyers around while your still there.

http://forums.moneysavingexpert.com/showpo...amp;postcount=2

Case 2: OP's landlord may want to OP to stay so the S21 is played right down:

I think most agents/landlords serve what is known as a section 21 notice after the tenancy has started. This states that the landlord wants the property back at the end of the tenancy. Although it sounds like it gives you notice to quit, in practice it just gives the landlord the option to end the tenancy at the end of the tenancy notice period. In reality the future tennacy will be discussed near the end of the current tenancy.

http://forums.moneysavingexpert.com/showpo...amp;postcount=4

Edited by Elvis-Has-Sold-The-Building
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Personally, I wouldn't let on that you are savvy about this issue at all. I wouldn't say anything at all until 2 months before the fixed term ends. That's when I would send the letter to open the dialogue about continuing past the fixed term. Once they answer in the affirmative, bang you got 'em.

I'd enquire casually during viewings along with my other queries and use the answers in weighing up which agent/property I'm interested in. I ask to read the AST at this point too and walk away from the ones laced with unfair terms. Choosing a good agent helps the tenancy go better. I doubt the agent remembers all the questions asked if none of them are made to be a big deal.

From that point the SoD is toast.

Telegraph that you are on to them, and they'll swallow razor blades rather than give you anything in writing.

Right they may refuse to put it in writing in time, so this is where any saved evidence that the S21 was invalidated at the start comes in as a backup to hassle them with should this happen. Sort of plan B if this happens and it turns out you can't move in time. Which is why I'd ask what the S21 means after it's served, even though I know full well, it's just to give them another chance mess up :)

Your letter to open the dialogue about continuing past the fixed term 2 months before the fixed term ends being plan A.

Edited by Elvis-Has-Sold-The-Building
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  • 2 weeks later...
Your letter to open the dialogue about continuing past the fixed term 2 months before the fixed term ends being plan A.

Trouble is, opening dialogue is exactly what an agent wants you to do. I believe the issuing of the S21 up front is a ruse invented by agents to insure continuing fees (They don't get fee's if the agreement goes into a periodic tenancy). I don't see any advantage for Landlords or Tennants. Remember a savy Tennant can use the SoD against the Landlord, by leaving with no notice. My last landlord (To whom I did give notice, as I believe in fair play) was quite shocked when I pointed out I could just walk away whenever I wanted to.

I now ask via email (so its in writing) if the agent will issue an S21 at the start of the tenancy. If they say yes I go elsewhere, there are still agents who don't do this.

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  • 2 weeks later...

Had an interesting conversation with my father in law about the S21 issue. As a district judge, he deals with these frequently. And I'm afraid it's not good news. In other areas such as late payment of rent, judges are entitled to some discretion. But in the case of S21 notices the law is very clear - if a valid S21 has been served, the court has no option but to uphold it. Discussions about renewal, even in writing, have no impact on the validity of the notice. The only thing that will work is a new tenancy agreement.

I did ask about the idea of signing with date and time the S21 before signing the tenancy agreement, so that the S21 is invalid because it was received before the tenancy was signed. He hadn't come across it, but I'll get back to him to see if he's had a chance to talk with his colleagues.

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  • 2 months later...
But in the case of S21 notices the law is very clear - if a valid S21 has been served, the court has no option but to uphold it. Discussions about renewal, even in writing, have no impact on the validity of the notice. The only thing that will work is a new tenancy agreement.

There's been some recent discussion about the SoD over at LandlordZone that's well worth reading.

The conclusion of the discussion, with the benefit of input from a real solicitor, is pretty much exactly what @quantinghome stated. Personally, I think it ought to be possible to explicitly rescind an S21 with a letter from the LL or LA, but IANAL.

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  • 4 weeks later...
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

Why would you do that though?

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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.

Perhaps your [email protected] LL is family who have tried to provide for their children's future by purchasing an investment property. Perhaps their last tenant didn't pay any rent after the first month, leaving them with £2400 in rent arrears, (which puts them into debt), £1000 for trashed couch and bed... and because landlord and tenant law is weighted in the favour of the T, could not evict them for 6 whole months, they stayed until the last day and laughed as they packed up their stuff. Perhaps that's why; they left a 150K asset in the care of a stranger for 6 months for a total of £600 security deposit (laughable I know, my car hire deposit when I go on vacation is the same) and got screwed.

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Perhaps your [email protected] LL is family who have tried to provide for their children's future by purchasing an investment property.

Perhaps they are stopping a young couple from starting a family by taking a home off the market and therefore removing security of tenure on a house.

and because landlord and tenant law is weighted in the favour of the T, could not evict them for 6 whole months

Wow, six months of security of tenure. No other civilised country in the world gives landlords these fenominal rights. Let's go back to the days when you rented a home until you died. Thats moves the law slightly more in favour of the tenant, after all the landlord is in it for the long term.

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  • 1 month later...

Woud it seem so fair pugsy if the shoe was on the other foot.

At the begininng of every tenancy the tennat gives notice. He doesn't intend to leave and tells the LL that and as all tennants do it the LL just has to accept it.

But once the tennancy is periodic if he wants to he can now legally walk away with a full deposit without giving notice.

O course not. That is why there are laws about this both for the T and the LL.

I have just recieved one today. I don't move in until Feb. The mupets post dated it so i've replied in writting noting that, asking them what it is about and if I really have to move out.

I figure playing dumb is the best course of action but if I can get them to admit they served 2 weeks before I moved it then I reckon they probably won't even realise it is invalid.

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'Wow, six months of security of tenure. No other civilised country in the world gives landlords these fenominal rights. Let's go back to the days when you rented a home until you died. Thats moves the law slightly more in favour of the tenant, after all the landlord is in it for the long term.'

NO OTHER COUNTRY WOULD BE SO CRAZY ABOUT PROPERTY !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

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Help!!

We have been living in our flat for around five and a half years, during which time we have been perfect tenants and always paid the rent on time.

Anyway, when it came to signing a new Assured Shorthold Tenancy, we negotiated the LL down to just a 1% rise (from an original offer of 2%), which we were happy with. However, we didn't realise there was also a Section 21 form with the contract that we had been asked to sign and return. Because we forgot to sign this S21 form, and because we took a while to send the AST back (it kept slipping our minds), we have now been told that the original offer of 1% is invalid, that our rent will increase by 4%, and that we are now on a statutory periodic agreement.

Reading this thread has made me feel physically sick as it sounds like we have effectively been served with notice to leave. Any advice/comments?

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Help!!

We have been living in our flat for around five and a half years, during which time we have been perfect tenants and always paid the rent on time.

Anyway, when it came to signing a new Assured Shorthold Tenancy, we negotiated the LL down to just a 1% rise (from an original offer of 2%), which we were happy with. However, we didn't realise there was also a Section 21 form with the contract that we had been asked to sign and return. Because we forgot to sign this S21 form, and because we took a while to send the AST back (it kept slipping our minds), we have now been told that the original offer of 1% is invalid, that our rent will increase by 4%, and that we are now on a statutory periodic agreement.

Reading this thread has made me feel physically sick as it sounds like we have effectively been served with notice to leave. Any advice/comments?

Two issues here:

First, the new contract. If you didn't sign a new contract before the old one expired, you're now on a periodic tenancy. If the LL wishes to raise the rent, they must serve you with an S13 notice, and can do so once a year, giving you a minimum of one month's notice of the rise. You can either accept the new rent, or give notice. Beware -- if you start paying the new rent, you've accepted it regardless of whether the S13 was served. Either you like the place enough to pay a 4% rise, or you don't. If you do, negotiate a new fixed term contract to suit you and you're back at the status quo ante.

Second, the S21. This isn't something you need to sign -- they must have been asking you to acknowledge receipt. However, it's invalid if served before the start of a tenancy agreement, so it surely couldn't have been a precondition of the contract. Assuming that it was dated to match the end of the proposed contract, you don't need to worry about the SoD dilemma for the duration, and you're no worse off than any conventional periodic tenant.

If you're uncomfortable with this, you should clarify the position, either by seeking a new fixed term contract, or by asking the LL to withdraw the S21 in writing (which should, though not definitely, be sufficient).

I'm not a lawyer. See other opinions, too.

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'Wow, six months of security of tenure. No other civilised country in the world gives landlords these fenominal rights. Let's go back to the days when you rented a home until you died. Thats moves the law slightly more in favour of the tenant, after all the landlord is in it for the long term.'

NO OTHER COUNTRY WOULD BE SO CRAZY ABOUT PROPERTY !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Most people chose a six month contract to hedge their bets, remember if you sign a 24 month contract you are theorically liable for 24 times the monthly rent regardless of whether you stay for 24 months (I know an LL who enforces this... mine!). As with all gambles 6 months gives you a chance to find out what your house and LL is like, if they are bad at least you can leave, if you are a good tenant the LL will be keen to keep you, best of both worlds...

The US is the same and in France you virtually have to own and fit the kitchen sink when you move rental houses (no joke) the UK system has a choice for every one

Also their is no law preventing long term leases (not an AST) but you as a tenant lose your Section 11 rights on lease overs 7 years.

Finally the 1977 tenant act which created the "protected tenancy" completely killed the housing rental market, as no LL dare rent a house for fear of never getting it back in their lifetime or even their childrens (I look after a protected tenacy for my mother in law that has outlived her father and will probably outlive her) We would not ever want that back as we need a healthy rental market to ensure the ecomony works. The AST is tenant and LL friendly but you don't have to take an AST and you gain a lot more resposibilty if you do take other forms of lease.

Edited by Matt Henson
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Help!!

We have been living in our flat for around five and a half years, during which time we have been perfect tenants and always paid the rent on time.

Anyway, when it came to signing a new Assured Shorthold Tenancy, we negotiated the LL down to just a 1% rise (from an original offer of 2%), which we were happy with. However, we didn't realise there was also a Section 21 form with the contract that we had been asked to sign and return. Because we forgot to sign this S21 form, and because we took a while to send the AST back (it kept slipping our minds), we have now been told that the original offer of 1% is invalid, that our rent will increase by 4%, and that we are now on a statutory periodic agreement.

Reading this thread has made me feel physically sick as it sounds like we have effectively been served with notice to leave. Any advice/comments?

It sounds like a negociation stance to me, being in a periodic tenancy is good for you and bad for the LL, you can leave at a months notice and the LL still has to give you two months which he can even in an fixed term (after the initial 6 months) = higher risk for the LL

I bet it you agree to sign another fixed term AST they will fall back to the original deal.

An S21 is a notice, there is no law requireing you to sign it, I suspect they sent it as a belt and braces measure to formally end the old AST and to avoid getting in to a periodic tenancy (get the impresion the LL doesn't like them)

Try going back with a story of great busy-ness, family issues etc. and see how much of the original deal they will offer you again if you sign up to it in 7 days assuming of course you want to carry on living there!

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Hi....

A quick question, but first some background:

Background

I signed a 12 months AST today - fine.

A section 21 was given to me afterwards - in a very low key fashion.

I spotted it, and made it clear I thought this was an act of bad faith by the letting agent. They said it was normal practice.

Now I thought my let was for 12 months minimum, not 12 months maximum...the position is now much less certain - the landlord probably doesn't want possession after 12 months!!! - but the landlord can take it if needed. Hmmm, very frustrating and I hope the legislators close this loophole.

Anyway, my only choice seems to be to demand a replacement AST whilst there is at least 2 months of the agreement left - otherwise my potential notice will get shorter by the day.

Question

Moving on, I was just wondering how much the landlord has given away by issuing the s21 notice.

can I move out at any time between now and then without notice? In other words, has the s21 notice effectively removed the landlord's right to notice?

Any help much appreciated.

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Can I move out at any time between now and then without notice? In other words, has the s21 notice effectively removed the landlord's right to notice?

No; you are still bound to pay rent for the remainder of the fixed term. The landlord has given nothing away.

At the end of the fixed term, you can move out without notice, regardless of what the contract says or whether an S21 notice has been issued. The key difference with SoD is that your contract does not automatically roll over as a periodic tenancy -- you are forced to negotiate a new fixed term AST. This is why the agent issues the S21; it allows them to collect their fee.

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Hi....

A quick question, but first some background:

Background

I signed a 12 months AST today - fine.

A section 21 was given to me afterwards - in a very low key fashion.

I spotted it, and made it clear I thought this was an act of bad faith by the letting agent. They said it was normal practice.

Now I thought my let was for 12 months minimum, not 12 months maximum...the position is now much less certain - the landlord probably doesn't want possession after 12 months!!! - but the landlord can take it if needed. Hmmm, very frustrating and I hope the legislators close this loophole.

Anyway, my only choice seems to be to demand a replacement AST whilst there is at least 2 months of the agreement left - otherwise my potential notice will get shorter by the day.

Question

Moving on, I was just wondering how much the landlord has given away by issuing the s21 notice.

can I move out at any time between now and then without notice? In other words, has the s21 notice effectively removed the landlord's right to notice?

Any help much appreciated.

I am sure they have got it completely wrong; they can not evict (or give you and eviction notice) you in the first 6 months of your tenancy (section 21 1988 housing act http://www.letlink.co.uk/letting-statutes/...8.html#21-RPTS) unless you have comitted some of the grounds in Schedule 2 of teh 1998 housing act (like being a bad neighbour, not paying the rent etc.)

Secondly a section 21 notice is what it is, a notice, once issued you have 2 months to move out, if not the LL has to go to court and gain possesion, it is not however a notice to override a contract, I suspect if you stay a day over the two months and the eviction is ignored the Section 21 notice becomes void ( I am no lawyer so you need to check this, but common sense would dictate that this is totally unfair and therefore unlawfull). What is the point of signing a 12 month AST with no rights to stay 12 months, surely a court will argue the intention is 12 months and not what ever the landlord feels.

That said, unless you have a break clause you do not have a right to leave at any point, I suspect what your EA/LL is doing is unlawful and you I suspect are protected... btw have they revealed if your deposit is held in the protection scheme, if it is not a Section 21 notice is invalid anyway...

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No; you are still bound to pay rent for the remainder of the fixed term. The landlord has given nothing away.

At the end of the fixed term, you can move out without notice, regardless of what the contract says or whether an S21 notice has been issued. The key difference with SoD is that your contract does not automatically roll over as a periodic tenancy -- you are forced to negotiate a new fixed term AST. This is why the agent issues the S21; it allows them to collect their fee.

I know you corrected me before so I am grateful for the input but is that right, can they really issue a S21 from the outset and allow it be enforced. Would it actaully stand up in court?

Had the inspiration to read the rest of the tread and realised I was talking mostly sh1t, the six month bit is right, the "use or lose it bit is certainly wrong" :wacko::wacko:

Question though, if you moved out dead on six months "in response to the S21" on a twelve months lease, would you be liable for remaining six months....?

Edited by Matt Henson
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