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Beware The Sword Of Damocles


Te Mata
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Obviously if the landlord and tenant come to a mutual agreement then the tenancy ends, but I am not talking about that. If you say that the tenant can leave on or at any time after the expiry of a section 21 notice without giving a notice to quit then you are saying that the tenancy comes to an end simply by the tenant leaving, which I do not think can be right. When you say: "If the tenant doesn't leave then there wasn't mutual consent so as you say the AST continues" you seem to be confirming the point. When you add: "As I said I think you have a point if the tenant leaves before the S21 notice period is up, then I'd say counter notice from the tenant is needed" the implication is that the only day the tenant can leave without giving notice is the date of expiry.

I think the confusion lies in the wording of the Act which requires a landlord to give "notice in writing stating that he requires possession of the dwelling-house". What I think is important is not the wording of the notice, but its purpose, which is that it is the first step to be taken in obtaining possession. The fact that there is no requirement to take the second step (to apply for an order for possession) within a set time limit seems to confirm this - compare the need to start proceedings within a specified time limit in the case of serving a notice on one of the grounds set out in Scedule 2.

If it is accepted that ASTs were created so that landlords could have much greater control over their property, albeit with limited protection for tenants to ensure that they are not evicted without due process of law and only after being give reasonable notice, the provisions are not satisfactory.

Sorry but you have sidestepped the point that the S21 is the landlord requesting possession after XX date. Therefore the landlord has given his consent for the tenant to vacate. A tenant obeying the landlord's written request to vacate would not IMO be penalised by the courts.

We have already established that the tenant may ignore this request in which case the landlord goes to court for a possession order.

I find it strange that you think a tenant cannot act upon the landlord's written instructions without penalty.

If the landlord wrote a letter to he tenant instructing him to paint all the ceilings black then the landlord can hardly sue the tenant who complies and win!

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Bear in mind what a S21 typically says:

I give you notice that I require possession of the dwelling house known as XXX after XXdate.

INFORMATION FOR TENANTS •

1. If the tenant or licensee does not leave the dwelling, the landlord or licensor must get an order for possession from the court before the tenant or licensee can lawfully be evicted. The landlord or licensor cannot apply for such an order before the notice to quit or notice to determine has run out.

• 2. A tenant or licensee who does not know if he has any right to remain in possession after a notice to quit or notice to determine runs out can obtain advice from a solicitor. Help with all or part of the cost of legal advice and assistance may be available under the Legal Aid Scheme. He should also be able to obtain information from a Citizens' Advice Bureau, a Housing Aid Centre or a rent officer.

Note the *if* in point 1. of information for tenants. Seems pretty clear that a tenant who delivers this request (that is to leave AFTER XXX date (not ON xxx date but AFTER xxx date)) cannot be sued for more rent in lieu of counter notice from the tenant. The teant would be liable to pay rent for all days he was in occupation up until and after XXX date and not for a following month too due to lack of notice fron the tenant.

Edited by Elvis-Has-Sold-The-Building
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Sorry but you have sidestepped the point that the S21 is the landlord requesting possession after XX date. Therefore the landlord has given his consent for the tenant to vacate. A tenant obeying the landlord's written request to vacate would not IMO be penalised by the courts.

We have already established that the tenant may ignore this request in which case the landlord goes to court for a possession order.

I find it strange that you think a tenant cannot act upon the landlord's written instructions without penalty.

The problem with this is that it is an essential requirement of a tenancy that its maximum duration be fixed or ascertainable when it starts. A periodic tenancy is regarded at its outset as a tenancy for a particular period; if no notice is given that period is succeeded by another, and so on. If the tenant could simply walk away when he chose (which is effectively what you are saying) it would mean that the maximimum duration of the period of the tenancy during which he left was not ascertainable at the moment that period started - which is not allowed.

If a landlord serves a notice which on the face of it appears to ask for his property back, it is not unreasonable to believe that it ought to be the case that he can hardly complain if the tenant complies with the request. I remain to be convinced, however, that an analysis of the position shows it is in fact the case.

No penalty is imposed on the tenant since if no section 21 notice is served and he wants to leave he has to give a notice to quit. What a section 21 notice may do is to confuse the tenant and lead him to believe that he can (or is obliged) to leave when it expires. As I said, the provisions are not satisfactory.

The form of notice you quote is not persuasive. There is in fact no statutory form for a section 21 notice and the "Information for Tenants" section is not needed. It comes from the form required for a notice to quit served under the Protection From Eviction Act 1977.

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As the OPer I must take issue that you have misconstrued my point regarding the SoD s21.

Please ensure to be relevant before casting aspersions on us poor OPs. <_<

No I haven't misconstrued your original post. The example I gave was to illustrate how powerless landlords are when we encounter a dishonest and untrustworthy tenant. The LL's organisation I belong to recommend issuing a S21 notice because it does enable us to regain possession at the end of the fixed period. So if the tenant hasn't kept to the tenancy agreement the LL is not faced with a lengthy process to regain possession. And yes I do know that S21 is not applicable in the example I gave.

As a LL I need tenants to rent my properties. Most of my tenants have been decent and considerate people. They have paid their rent on time, they have treated the property well, they haven't caused a nuisance to their neighbours. But tenants come and go. It is, unfortunately, inevitable that I will encounter an undesirable tenant ocasionally. When that occurs I am caused immense difficulty, as in the example I gave even though it is not the same situation as envisaged by S21. If a tenant behaves well they are more than welcome to renew the tenancy.

Your point about the S21 deceiving tenants of their right to at least two months notice after the expiration of the fixed term works both ways, it also enables the tenant to shorten the period of notice they can be held to as has been pointed out by several posters. I haven't yet had cause to discover how long it takes to gain possession when a LL has the right to regain possession. My guess is it would be a matter of weeks not days. So in practice the tenant may well get two months or longer. If anyone has knowledge of the length of time it takes I would be interested to know.

Playing down the importance of the S21 notice? The tenant is required to sign the notice and it's a well understood principle that you are deemed to have read and understood what you sign. So the vast majority of people are careful to read and understand what they sign. I think it's very patronising to demean the intelligence of tenants and assume they are easily mislead. The LL's association recommends it is done for all tenants because the bad ones don't tell you at the outset. You don't find out until later and then you face the problems. The RLA, since you ask, recommend better to be safe than sorry.

"So it's not the S21 notice itself that's bad it's the manipulating it to remove a tenant's two moths notice is the problem." I think the problem is more the time and difficulty in removing a bad tenant.

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No I haven't misconstrued your original post. The example I gave was to illustrate how powerless landlords are when we encounter a dishonest and untrustworthy tenant. The LL's organisation I belong to recommend issuing a S21 notice because it does enable us to regain possession at the end of the fixed period. So if the tenant hasn't kept to the tenancy agreement the LL is not faced with a lengthy process to regain possession. And yes I do know that S21 is not applicable in the example I gave.

As a LL I need tenants to rent my properties. Most of my tenants have been decent and considerate people. They have paid their rent on time, they have treated the property well, they haven't caused a nuisance to their neighbours. But tenants come and go. It is, unfortunately, inevitable that I will encounter an undesirable tenant ocasionally. When that occurs I am caused immense difficulty, as in the example I gave even though it is not the same situation as envisaged by S21. If a tenant behaves well they are more than welcome to renew the tenancy.

Your point about the S21 deceiving tenants of their right to at least two months notice after the expiration of the fixed term works both ways, it also enables the tenant to shorten the period of notice they can be held to as has been pointed out by several posters. I haven't yet had cause to discover how long it takes to gain possession when a LL has the right to regain possession. My guess is it would be a matter of weeks not days. So in practice the tenant may well get two months or longer. If anyone has knowledge of the length of time it takes I would be interested to know.

Playing down the importance of the S21 notice? The tenant is required to sign the notice and it's a well understood principle that you are deemed to have read and understood what you sign. So the vast majority of people are careful to read and understand what they sign. I think it's very patronising to demean the intelligence of tenants and assume they are easily mislead. The LL's association recommends it is done for all tenants because the bad ones don't tell you at the outset. You don't find out until later and then you face the problems. The RLA, since you ask, recommend better to be safe than sorry.

"So it's not the S21 notice itself that's bad it's the manipulating it to remove a tenant's two moths notice is the problem." I think the problem is more the time and difficulty in removing a bad tenant.

So most of your tenants are decent yet you advocate depriving all of them of their right to notice. Telling them the S21 is "a formality and provided they were happy to stay after the AST expired I would be happy to renew the AST provided I was happy with their conduct as tenants." is misleading. What you are really doing is making the notice period at your discretion. The S21 is a no fault notice and it's application is nothing to do with the tenant's conduct you can simply action it regardless should you wish to. Besides your being happy with someone's conduct could mean anything. So how and when does the tenant come to know if they have "passed" this test. Would they fail if they asked for any repairs or if they declined a rent rise? Maybe not with yourself but could easily happen with less reputable landlords. What if the landlord wished to sell (OK that's less likely now). In these cases even the good tenant can be asked to leave and get taken by suprise as he was led to believe the S21 he was served months ago was just "a formality".

As the S21 cannot request possession before the end of the fixed term you could just as easily serve it just before the end of month four and still achieve the same end date (assuming a six month fixed term). Then you could use the first four months to decide if the tenants are bad or not and only serve the notice on the bad ones. Why not do that? Is it perhaps because in truth you want all your tenants to be on as little notice as possible.

As a tenant cannot practically move or be ready to move every six months what you are really doing is training even the good tenants to ignore the S21 notice. If all tenants did this the courts would be overwhelmed and getting posession would become a much longer wait for all landlords.

Also what do you do at the end of the fixed term? How much notice do you give the good tenants that they can stay? Do you then sort them out with a new AST so that they are no longer living under the S21, or do you leave them on a periodic tenancy with their right to any notice long over? If you sort them out with a new AST, do you serve them with another S21?

Edited by Elvis-Has-Sold-The-Building
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So most of your tenants are decent yet you advocate depriving all of them of their right to notice. Telling them the S21 is "a formality and provided they were happy to stay after the AST expired I would be happy to renew the AST provided I was happy with their conduct as tenants." is misleading.

That's exactly what I have told my tenants when I've asked them to sign the S21 notice. I don't see how I have misled them at all. There are no tests to pass, just a safeguard for me if they do not keep to the terms of the tenancy agreement.

As the S21 cannot request possession before the end of the fixed term you could just as easily serve it just before the end of month four and still achieve the same end date (assuming a six month fixed term). Then you could use the first four months to decide if the tenants are bad or not and only serve the notice on the bad ones.

Good point. But after more consideration it might not be a good idea from my point to warn the bad tenants that they will not be staying. They may take it as provocation and cause even more damage and nuisance. I don't have any problem with renewing a tenancy for a good tenant. I've defined what I consider to be a good tenant in my previous post. The real problem I forsee is the difficulty in regaining possession from bad tenants. How long does it take using the other grounds in Schedule 2 of the Housing Act even where it is the blatant disregard of the agreement by the bad tenant.

On expiration I've usually requested that a new AST is entered into, and don't bother with the S21 notice. From my experience both sides by then have found out how reliable each other are, trust is formed, or not, and you can then proceed with more certainty. I really don't have any issue with the good tenants entering into a new AST or continuing with a periodic tenancy. From a commercial basis I would prefer to let a good tenant stay, I don't demand stringent "tests" I just want them to act with consideration for their neighbours and me. It's what I would like from everybody really, reasonable behaviour.

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That's exactly what I have told my tenants when I've asked them to sign the S21 notice. I don't see how I have misled them at all. There are no tests to pass, just a safeguard for me if they do not keep to the terms of the tenancy agreement.

Good point. But after more consideration it might not be a good idea from my point to warn the bad tenants that they will not be staying. They may take it as provocation and cause even more damage and nuisance. I don't have any problem with renewing a tenancy for a good tenant. I've defined what I consider to be a good tenant in my previous post. The real problem I forsee is the difficulty in regaining possession from bad tenants. How long does it take using the other grounds in Schedule 2 of the Housing Act even where it is the blatant disregard of the agreement by the bad tenant.

On expiration I've usually requested that a new AST is entered into, and don't bother with the S21 notice. From my experience both sides by then have found out how reliable each other are, trust is formed, or not, and you can then proceed with more certainty. I really don't have any issue with the good tenants entering into a new AST or continuing with a periodic tenancy. From a commercial basis I would prefer to let a good tenant stay, I don't demand stringent "tests" I just want them to act with consideration for their neighbours and me. It's what I would like from everybody really, reasonable behaviour.

Well at least you admit that the reason you do this is to keep all tenants without warning they may not be staying. The reason I would not accept this is that the law intended tenants to receive a two months "no fault" notice under S21. For tenants who have broken the tenancy agreement in a significant way you could use section 8, that comes with different amounts of notice but is two weeks for most things. S8 also has the advantage that you do not have to wait for the end of the fixed term so it is really faster than a S21 for a tenant who is bad from early on. OK the S8 needs a hearing but then so does an S21 that the tenant challenges and I think the tenant would have reason to challenge your method. This still causes a delay to wait for a hearing even if the tenant then loses, same as the S8.

The sticking point for me that I do not wish to live on such woolly terms as the landlord being "happy" as I know full well he can exercise the S21 for any reason he likes, it's not related to my behaviour as a tenant. In my case I was asked to leave as the landlord wanted to sell.

As I said the S21 is fine by me as a tenant but only if I'm given a proper two months notice. It is clear you (other landlords, and the advice from your landlord's association) are trying to circumvent this. It seems strange to me that you operate a model that takes security away from all tenants even the good ones when you say most of your tenants are good and there is the more effective S8 to use for the obviously bad tenants. The only conclusion I can come to is that you really do want all tenants having no warning they may not be staying.

Edited by Elvis-Has-Sold-The-Building
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As I said the S21 is fine by me as a tenant but only if I'm given a proper two months notice. It is clear you (other landlords, and the advice from your landlord's association) are trying to circumvent this. It seems strange to me that you operate a model that takes security away from all tenants even the good ones when you say most of your tenants are good and there is the more effective S8 to use for the obviously bad tenants. The only conclusion I can come to is that you really do want all tenants having no warning they may not be staying.

I'm gonna shut up after this reply. I think we've expressed our view points, can see each others points but disagree.

In the example I gave, which is the first bad experience I've had with a tenant, I realise how biased the legislation is in the tenants favour. She's clearly abandoned the property, is claiming benefits for children that are not living with her and has misappropriated the money given to her to pay for a roof over her head. OK she may have personal problems that she can't deal with or she may simply be dishonest, I don't know the facts and am not in a position to judge. But through no fault of my own I will be inconvenienced and have to spend time and money to conclude the situation. Not only that her inconsiderate actions prevent another family being able to live in a comfortable well maintained house. Even more poignantly because they are excluded over the Christmas period. The housing officer tells me that there are many families in the area that would be delighted to have the opportunity to live in the house. The law gives me no protection unless I go through the process which I think is likely to take several weeks. It's unfair to me, it's unfair to all landlords. And even though some people consider that I'm a "scummy" landllord a potential tenant is deprived as well.

It seems to me your original complaint is far outweighed by grievances from the landlords side. Any well argued but I disagree with you.

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I'm gonna shut up after this reply. I think we've expressed our view points, can see each others points but disagree.

In the example I gave, which is the first bad experience I've had with a tenant, I realise how biased the legislation is in the tenants favour. She's clearly abandoned the property, is claiming benefits for children that are not living with her and has misappropriated the money given to her to pay for a roof over her head. OK she may have personal problems that she can't deal with or she may simply be dishonest, I don't know the facts and am not in a position to judge. But through no fault of my own I will be inconvenienced and have to spend time and money to conclude the situation. Not only that her inconsiderate actions prevent another family being able to live in a comfortable well maintained house. Even more poignantly because they are excluded over the Christmas period. The housing officer tells me that there are many families in the area that would be delighted to have the opportunity to live in the house. The law gives me no protection unless I go through the process which I think is likely to take several weeks. It's unfair to me, it's unfair to all landlords. And even though some people consider that I'm a "scummy" landllord a potential tenant is deprived as well.

It seems to me your original complaint is far outweighed by grievances from the landlords side. Any well argued but I disagree with you.

Okay, we can agree to disagree. Nevertheless I thank you for having the honesty to tell the landlord's side of the Sword of Damocles. Many don't. I just hope you don't end up alienating good tenants by making them worse off notice wise for your first bad experience. I hope that serving a section 8 notice sorts this current tenant out asap, which as we both have said isn't the Sword of Damocles at all, it's serving notice fair and square when it's merited which I have no issue with whatsoever!

PS: As mentioned before, I think you do need to be serving a Section 8 as you are so early in the fixed term and a S8 is the notice that can operate for you to seek possession during the fixed term which a S21 cannot do.

Edited by Elvis-Has-Sold-The-Building
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I realise how biased the legislation is in the tenants favour.

The legislation is pretty much weighted in favour of the landlord. Apart from allowing a landlord to bring an AST to an end with a no fault notice, the 1988 Act sets out 18 grounds on which a landlord may obtain possession.

The law gives me no protection unless I go through the process which I think is likely to take several weeks.

I should hope the law does require you to go through a process. No one should be deprived of their accommodation without due process of law. The law is there to protect good tenants. You cannot have one set of rules for good tenants and one for bad. The problem is rather the length of time the process takes. Landlords have to join the queue with all others seeking justice; there is no good reason why they should get preferential treatment in the court system.

The HA 1988 was a major plank in the last government's policy of shifting residential letting from the public to the private sector. If you let residential property you buy into the idea that residential property should be in the private sector. That means accepting the problems that go with it. All too often landlords only want the benefits of income and capital appreciation, but as soon as things start to go wrong, want the public sector to take over. Letting is an investment and like all investments has risks. It is also a business and like all businesses it has its bad debtors that you have to allow for. No one is forced into letting.

If the intention of a section 21 notice is to afford the tenant sufficient time to find alternative accommodation then the provisions of the HA 1988 are defective. A good landlord should only serve one when he wants the property back. Other means are available (at indeed shorter notice) for getting rid of bad tenants. Serving an SoD 21 notice effectively shortens the time a good tenant has to find alternative accommodation. That puts pressure on local authorities to house them urgently so that they are providing back-up for the private sector. Every time an LA has to house someone urgently those on its waiting list have to wait longer.

Edited by Damocles
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Every time an LA has to house someone urgently those on its waiting list have to wait longer.

The tenant abandoning my property means that it will be vacant until I get a possession order. The LA who have numerous families on their waiting list, most of whom would be delighted to have the opportunity to live in a property as good as this are deprived of it while I go through the process. The waiting list is longer because the law is weighted in favour of the disappearing tenant. The law that was drawn up to protect the tenant from the Landlord. To give the tenants security of tenure. I didn't deprive anyone of their accommodation. I didn't force the tenant to disappear. They chose to leave, left a few possessions, kept the keys and didn't tell anyone. The actual effect of the law in this case is the exact opposite of your conclusion.

We've moved away from the very narrow objection raised about S21 but it is the overall effect of the legislation, and it is biased in favour of the tenant. And it is applied in favour of the tenant. The notices have to be drawn up exactly as specified in the legislation, Judges won't amend them at the hearing to correct minor mistakes as they frequently do in other types of dispute.

Is the stereotype image of greedy unscrupulous Landlords seeking to exploit their tenants and make them live in abject poverty in hovels unfit for human habitation true, waiting for the slightest misdemeanor so they can cast them out into the street. Most landlords would prefer their property to be fully let to a tenant that behaves reasonably. They don't want them empty and not yielding an income. From what I've seen of rental property in the private sector most of it is very good. And the last house price boom raised the standard of accommodation in the private sector to higher standards. If anyone was exploited it was the private Landlord, they purchased and made available large numbers of dwellings for rent. Of course we were motivated by the prospect of a profit but isn't enlightened self interest one of the cornerstones of our system and society. We were aware there were risks. But overall the prospect to invest in an enduring asset that held out the prospect of a future income by providing houses for people to live in is a reasonable objective.

What are the alternatives? Housing provided by the state? We tried that, but look how many took the opportunity to buy when they could. I'm not expounding the theory that "greed is good" but more the principle that competition is the best safeguard. As I see it for those who choose to rent, and not everyone wants to buy, their best safeguard is the availability of housing from a wide number of providers.

The last government's policy of shifting residential letting from the public to the private sector has had beneficial effect. Clearly we brought into the philosophy that there should be some residential property available in the private sector. We accepted that there would be problems and risks. All we're asking is for a reasonable balance between the respective rights of Landlords and tenants.

If the other means available were more effective, provided a shorter time to remove those in breach of the tenancy agreement, then it wouldn't be necessary for landlords to protect their interests by the use of S21 in this way.

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sleepwello'nights,

If not abused the S21 is effective for the good tenants. I was served a S21 as the landlord wished to sell and as he only served it once he'd decided he wished me to move I made full well I moved out on precisely the day that the notice period was up. (The property was left in perfect condition and I got all my deposit returned). In this case it took the landlord precisely two months from service of the notice to obtaining a vacant property.

If the landlord had used the Sword of Damocles then there is no way I could have moved out immediately as I require time to move. Also my spirit of co-operation would have gone as I think the Sword of Damocles unfair so I would have hung about till a good alternative property turned up and probably tried a defence of estoppel against the S21 to prevent having to move in too much of a rush.

The fact a tenant challenges the S21 would move the case from accelerated possession to needing a hearing. So the landlord would have to join the queue to await a court hearing, thus eviction would end up taking longer than if he had served the S21 fairly. In addition if this happened to many tenants it would push the more deserving landlords, using the Section 8 with real problem tenants like yourself, into an even longer wait for a hearing as the courts would be much busier.

Edited by Elvis-Has-Sold-The-Building
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  • 4 months later...

If a Section 21 is issued and enforced by a housing association,

Who has the right to sign the section 21?

I'm under the impression that only a Landlord (in this case i'm assuming it to be a Trustee) is able to do this, whats it called?

Or can they give power to someone else, if so what is this power called?

Obviously a lawyer can do this on behalf of the Landlord, but what about a staff member thats clearly not the Landlord?

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  • 2 weeks later...

Quick point, probably covered elsewhere but I don't have time to read through all 15 pages.

Using the s.21 procedure in this way effectively allows the tennant to move out at any time of their choosing without further notice to the landlord.

Have the LL's who recommend this thought of that?

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Using the s.21 procedure in this way effectively allows the tennant to move out at any time of their choosing without further notice to the landlord.

WRONG

A tennant is bound by any fixed term they have signed. Once a periodic has arisen (assuming they havent already moved at the end of the fixed term) the tennant still has to give correct notice, otherwise the tenancy will not end and they will still be liable for rent.

Edited by Planner
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WRONG

A tennant is bound by any fixed term they have signed. Once a periodic has arisen (assuming they havent already moved at the end of the fixed term) the tennant still has to give correct notice, otherwise the tenancy will not end and they will still be liable for rent.

Agree about the fixed term (should have made this clear on the original post) but less clear about the periodic tennancy.

The s.21 notice requires the tennant to yield possesion of property to the landlord. Surely the tennant can not therefore be required to give separate notice of his intention to comply with the landlords notice.

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Agree about the fixed term (should have made this clear on the original post) but less clear about the periodic tennancy.

The s.21 notice requires the tennant to yield possesion of property to the landlord. Surely the tennant can not therefore be required to give separate notice of his intention to comply with the landlords notice.

opsie, didnt mean to come across so strongly with my captalised WRONG!!!! Sorry!

You would probably be better reading the sticky rather than us having the same arguments again. My summing up of it in breif would be;

Your making the assumption that a s.21 notice is a 'notice to quit', in my view it isnt, its merley the first step in a stautory process, which at a later date if they chose to persue it, would allow the landlord to apply to the court to terminate the tenancy. A s.21 initself neither terminates the tenacy or even gives the tenant certainty that the landlord intends to apply to the court to terminate the tenancy at some point.

A s.21 notice cannot be interpreted in the same way as a tenants noticeto quit as they are different things. One terminates the tenancy on expiry, the other doesnt.

As far as I am aware, bar death of tenant, destruction of the property or breakclause, there are only four ways a tenancy can be brought to an end;

1) On expiry of the fixed term, tenant returns property to landlord;

2) Tenant serves the correct notice;

3) Tenant and landlord mutually agree a surrender of the tenancy;

4) Landlord obtains a court order.

So, if we assume a SoD s.21 is issuesd at the start of tenancy and at some point during the periodic the tenant upsticks and leaves, none of the above 4 ways to end a tenancy have been satisfied, therefore the tenant would still be liable if the landlord wanted to take further action.

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opsie, didnt mean to come across so strongly with my captalised WRONG!!!! Sorry!

You would probably be better reading the sticky rather than us having the same arguments again. My summing up of it in breif would be;

Your making the assumption that a s.21 notice is a 'notice to quit', in my view it isnt, its merley the first step in a stautory process, which at a later date if they chose to persue it, would allow the landlord to apply to the court to terminate the tenancy. A s.21 initself neither terminates the tenacy or even gives the tenant certainty that the landlord intends to apply to the court to terminate the tenancy at some point.

A s.21 notice cannot be interpreted in the same way as a tenants noticeto quit as they are different things. One terminates the tenancy on expiry, the other doesnt.

As far as I am aware, bar death of tenant, destruction of the property or breakclause, there are only four ways a tenancy can be brought to an end;

1) On expiry of the fixed term, tenant returns property to landlord;

2) Tenant serves the correct notice;

3) Tenant and landlord mutually agree a surrender of the tenancy;

4) Landlord obtains a court order.

So, if we assume a SoD s.21 is issuesd at the start of tenancy and at some point during the periodic the tenant upsticks and leaves, none of the above 4 ways to end a tenancy have been satisfied, therefore the tenant would still be liable if the landlord wanted to take further action.

Ok, I should have read a bit more of the thread before I posted.

I think the counter argument is that in complying with the s.21 notice this represents a mutually agreed surrender, even if that is not what the landlord originally intended.

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Ok, I should have read a bit more of the thread before I posted.

I think the counter argument is that in complying with the s.21 notice this represents a mutually agreed surrender, even if that is not what the landlord originally intended.

If it wasnt what the landlord originally intended, how is it therefore mutually agreed?

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If it wasnt what the landlord originally intended, how is it therefore mutually agreed?

Presumably, the discrepancy is between the LL's communication to T [by way of S21] and LL's intent, not communicated to T [because it would invalidate the S21]. There would be no discrepancy between T's actions [to quit] and LL's communication [to quit]. Arguably that would be mutual agreement?

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Presumably, the discrepancy is between the LL's communication to T [by way of S21] and LL's intent, not communicated to T [because it would invalidate the S21]. There would be no discrepancy between T's actions [to quit] and LL's communication [to quit]. Arguably that would be mutual agreement?

Then that would be back to my first point;

Your making the assumption that a s.21 notice is a 'notice to quit', in my view it isnt, its merley the first step in a stautory process, which at a later date if they chose to persue it, would allow the landlord to apply to the court to terminate the tenancy. A s.21 initself neither terminates the tenacy or even gives the tenant certainty that the landlord intends to apply to the court to terminate the tenancy at some point.

A s.21 notice cannot be interpreted in the same way as a tenants noticeto quit as they are different things. One terminates the tenancy on expiry, the other doesnt.

The landlords action is to begin the first part of a statutory process, the tenants action is to leave, there is no mutual agreement.

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Then that would be back to my first point;

Your making the assumption that a s.21 notice is a 'notice to quit', in my view it isnt, its merley the first step in a stautory process, which at a later date if they chose to persue it, would allow the landlord to apply to the court to terminate the tenancy. A s.21 initself neither terminates the tenacy or even gives the tenant certainty that the landlord intends to apply to the court to terminate the tenancy at some point.

A s.21 notice cannot be interpreted in the same way as a tenants noticeto quit as they are different things. One terminates the tenancy on expiry, the other doesnt.

The landlords action is to begin the first part of a statutory process, the tenants action is to leave, there is no mutual agreement.

OK, it ain't quite mutual agreement, but once T leaves, he has complied with the notice and I cannot see LL being upheld on "I didn't really mean it" - nor would LL organisations be too happy with one of their number getting the meaning of an S21 diluted in this way.

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OK, it ain't quite mutual agreement, but once T leaves, he has complied with the notice and I cannot see LL being upheld on "I didn't really mean it" - nor would LL organisations be too happy with one of their number getting the meaning of an S21 diluted in this way.

There has been quite a bit of discussion on this over on LLZ. To be honest, it's confusing. Technically (if I understand correctly), tenant should still issue notice to quite. But according to the view there, tenant can leave without NTQ under the principle of estoppal. In other words, LL apparently wants T to leave, so can't start enforcing technicalities of NTQs.

But there is a time constraint (of indeterminate length), estoppal only really works soon after expiry of S21. The view is that if tenant was still in situ 6 months later, then 1 months notice would need to be given.

To be frank it's all a bit nebulous and difficult for all to grasp. It took a year of discussion with lawyers involved to arrive at that conclusion, but it seems they are right.

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Interesting. I can see the sense in it too.

There has been quite a bit of discussion on this over on LLZ. To be honest, it's confusing. Technically (if I understand correctly), tenant should still issue notice to quite. But according to the view there, tenant can leave without NTQ under the principle of estoppal. In other words, LL apparently wants T to leave, so can't start enforcing technicalities of NTQs.

ie LL can tell T to go but cannot insist on T jumping through all of the hoops that T must go through if it is T who decides to quit.

But there is a time constraint (of indeterminate length), estoppal only really works soon after expiry of S21. The view is that if tenant was still in situ 6 months later, then 1 months notice would need to be given.

Sauce, geese, ganders. The undefinable point should be identical - LL should not be able to tip T out on an S21 expired by an unreasonably long time - but then T would be expected to give notice if LL's S21 is well past its sell-by. But the argument would need to be made and sustained in court.

Edited by D Vardy's Shadow
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opsie, didnt mean to come across so strongly with my captalised WRONG!!!! Sorry!

You would probably be better reading the sticky rather than us having the same arguments again. My summing up of it in breif would be;

Your making the assumption that a s.21 notice is a 'notice to quit', in my view it isnt, its merley the first step in a stautory process, which at a later date if they chose to persue it, would allow the landlord to apply to the court to terminate the tenancy. A s.21 initself neither terminates the tenacy or even gives the tenant certainty that the landlord intends to apply to the court to terminate the tenancy at some point.

A s.21 notice cannot be interpreted in the same way as a tenants noticeto quit as they are different things. One terminates the tenancy on expiry, the other doesnt.

As far as I am aware, bar death of tenant, destruction of the property or breakclause, there are only four ways a tenancy can be brought to an end;

1) On expiry of the fixed term, tenant returns property to landlord;

2) Tenant serves the correct notice;

3) Tenant and landlord mutually agree a surrender of the tenancy;

4) Landlord obtains a court order.

So, if we assume a SoD s.21 is issuesd at the start of tenancy and at some point during the periodic the tenant upsticks and leaves, none of the above 4 ways to end a tenancy have been satisfied, therefore the tenant would still be liable if the landlord wanted to take further action.

If your argument holds then it's possible to have at one and the same time:

a ) T bound to serve notice (which can easily be almost two months if he just missed the start of a period).

b ) The landlord filling in the court forms to enforce the S21.

That would leave time for the possession order to be granted while the tenant is still serving his notice. That's mad.

Alternatively how about this conversation between L and T:

T: I'm off next week.

L: You can't go you haven't served a NTQ I want a one months notice ending on a rent day.

T: But you are free to action the S21 tomorrow if you wanted as the notice period on that expired months ago.

L: You can't leave.

T: Right I'll stay, oh and I think you just voided your S21 :lol:

Edited by Elvis-Has-Sold-The-Building
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