Jump to content
House Price Crash Forum

Beware The Sword Of Damocles


Te Mata
 Share

Recommended Posts

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. In this situation you would suspect that i) the tenant would be aware that the LL intends to enforce the s.21 rather than just 'have in place for future use', therefore tenant wouldnt serve notice would they? but point 3 would be used - Tenant and landlord mutually agree a surrender of the tenancy

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: I n the first instance I would disagree that the LL requesting correct notice be served would void a s.21 however supposing it did, a canny LL would serve a fresh s.21. Alternativley I suspect one would find it very difficult in court to 'prove' that the negotiation voided the s.21 without something in writing.

I think my points still stand.

Edited by Planner
Link to comment
Share on other sites

  • Replies 245
  • Created
  • Last Reply

Top Posters In This Topic

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.

In this situation you would suspect that i) the tenant would be aware that the LL intends to enforce the s.21 rather than just 'have in place for future use', therefore tenant wouldnt serve notice would they? but point 3 would be used - Tenant and landlord mutually agree a surrender of the tenancy.
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:

I n the first instance I would disagree that the LL requesting correct notice be served would void a s.21 however supposing it did, a canny LL would serve a fresh s.21. Alternativley I suspect one would find it very difficult in court to 'prove' that the negotiation voided the s.21 without something in writing.

I think my points still stand.

The whole point of the SoD is that the landlord doesn't tell the tenant his intentions. The landlord has a free choice if he is going to enforce SoD S21 or not, it is there for use should it be needed and can be used at any time.

Doesn't your second red paragraph shoot down your first red paragraph and make my point still stand? If the LL insisting on correct notice from the tenant doesn't void the S21 then you can still have the case where the the landlord asks for the tenant to serve out his own notice and then the next week fills in the court papers to enforce the S21. Thus the tenant is serving out his notice and bound to stay for that time while the court process is started. There is no need for the landlord to discuss any of this with the tenant to agree a mutual surrender, indeed if the landlord wants to get maximum rent by preventing the tenant from leaving early he is better off not discussing it.

This is why if there is a SoD I think the tenant is free to go without a NTQ, if he isn't then all sorts of odd situations like the above crop up.

Edited by Elvis-Has-Sold-The-Building
Link to comment
Share on other sites

In the first instance I would disagree that the LL requesting correct notice be served would void a s.21 however supposing it did, a canny LL would serve a fresh s.21. Alternativley I suspect one would find it very difficult in court to 'prove' that the negotiation voided the s.21 without something in writing.

I think we can all agree that T is absolutely entitled to take s21 at face value.

So what is an S21 at face value?

Link to comment
Share on other sites

The whole point of the SoD is that the landlord doesn't tell the tenant his intentions. No.The whole point of s.21 is the landlord begining the first step in a statutory porcess that may result in him removing the tenant at some stage. Why would a LL not tell the tenant when he intended to enforce it?

The landlord has a free choice if he is going to enforce SoD S21 or not, it is there for use should it be needed and can be used at any time.Agreed. But I think you are missing a step. Are you suggesting that if a LL intended to use the s.21 he would not make the tenant aware of this and instead go straight to court? I dont think any landlord would take this approach, what would be the benifit?

Doesn't your second red paragraph shoot down your first red paragraph and make my point still stand? If the LL insisting on correct notice from the tenant doesn't void the S21 then you can still have the case where the the landlord asks for the tenant to serve out his own notice and then the next week fills in the court papers to enforce the S21No it doesnt. Why would you have the situation where a landlord insists on correct notice and then the next week fills in the accelerated possesion papers? Why would a LL incurr such an additional cost on themselves?. Thus the tenant is serving out his notice and bound to stay for that time while the court process is started As already stated I dont think this situation would arise, the landlord would make it clear that they want the tenant to leave i,e, mutual agreement or the tenant would refuse and the s.21 would continue.. There is no need for the landlord to discuss any of this with the tenant to agree a mutual surrenderBut again what would be the point?, indeed if the landlord wants to get maximum rent by preventing the tenant from leaving early he is better off not discussing itHow would this maximise rent? I dont get your reasoning?.

This is why if there is a SoD I think the tenant is free to go without a NTQ, if he isn't then all sorts of odd situations like the above crop upI dont think you have raised any feisable situations, odd ones, but not ones that would arise.

I still think my points stand. Notice is always required by the tenant to leave, unless its the end of the fixed term or the landlord is clear that they intend to enforce the s.21 if they dont (i.e mutual agreement).

Edited by Planner
Link to comment
Share on other sites

I still think my points stand. Notice is always required by the tenant to leave, unless its the end of the fixed term or the landlord is clear that they intend to enforce the s.21 if they dont (i.e mutual agreement).

The landlord doesn't tell the tenant anything about whether or not he intends to enforce an SoD S21 as in doing that he may void the notice. See letting ladies comments about the S21 needing to be unequivocal and without reservation.

To answer your points in red in the above post (they didn't appear in the quote):

The whole point of the landlord wanting the tenant to say for the NTQ duration is to collect more rent and also ensure the tenant leaves as near as possible to the date the landlord wants, perhaps buy more time to line up a new tenant. Therefore a landlord who is awkward enough to serve an S21, have that notice period expire and still not let the tenant go without a tenant's NTQ is also awkward enough to hold the T to an NTQ even after filling in the court papers etc.

If you think serving the SoD S21 isn't an offer from the landlord for a mutual surrender anytime after the expiry date then I do not see why the landlord sending off court papers for possession is an offer for a mutual surrender any time after the court papers are served. Neither actions bring the tenancy to an end, both indicate that it may be brought to an end in the future if the possession proceedings go ahead and are done correctly.

The landlord may not trust the tenant to leave on time with the NTQ and thus want to action the SoD S21 as backup so as to prevent being mucked about. The landlord has nothing to lose from sending off the court papers, the tenant as the loser will likely have to pay the court fee.

So if your arguments are correct it is perfectly feasible that the landlord tries to hold the tenant to the tenant's NTQ whist at the same time kicking off possession proceedings. My point is this makes a nonsense of the whole thing as the court hearing date could arrive before the tenant's NTQ period expires. So I still do not see it can work like you say.

Edited by Elvis-Has-Sold-The-Building
Link to comment
Share on other sites

The landlord doesn't tell the tenant anything about whether or not he intends to enforce an SoD S21 as in doing that he may void the notice. See letting ladies comments about the S21 needing to be unequivocal and without reservation.

The whole point of the landlord wanting the tenant to say for the NTQ duration is to collect more rent and also ensure the tenant leaves as near as possible to the date the landlord wants, perhaps buy more time to line up a new tenant. Therefore a landlord who is awkward enough to serve an S21, have that notice period expire and still not let the tenant go without a tenant's NTQ is also awkward enough to hold the T to an NTQ even after filling in the court papers etc.

If you think serving the SoD S21 isn't an offer from the landlord for a mutual surrender anytime after the expiry date then I do not see why the landlord sending off court papers for possession is an offer for a mutual surrender anytime after the court papers are served. Neither actions bring the tenancy to an end, both indicate that it may be brought to an end in the future if the possession proceedings go ahead and are done correctly.

The landlord may not trust the tenant to leave on time with the NTQ and thus want to action the SoD S21 as backup so as to prevent being mucked about by the departing tenant's indicision. The landlord has nothing to lose from sending off the court papers, the tenant as the loser will likely have to pay the court fee.

So if your arguments are correct it is perfectly feasible that the landlord tries to hold the tenant to the tenant's NTQ whist at the same time kicking off possession proceedings. My point is this makes a nonsense of the whole thing as the court hearing date could arrive before the tenant's NTQ period expires. So I still do not see it can work like you say.

I imagine we could add a few more pages to this thread!! but its just the same old arguments we are throwing at each other, so I will leave it there until (if) some litigation on the subject appears!

Link to comment
Share on other sites

I still think my points stand. Notice is always required by the tenant to leave, unless its the end of the fixed term or the landlord is clear that they intend to enforce the s.21 if they dont (i.e mutual agreement).

S21 is a clear statement of LL's intent. Isn't it?

The honeyed tones from the LA that an S21 as SoD at the start of a tenancy is just a formality might invalidate the S21 if they could be made to stand up in court. But, argued properly by T's lawyer, the honeyed tones of the LA actually put the LL in the position of being able to have it both ways at his choice at the end of the assured term - a court could not uphold this. LL's lawyer could argue that T is trying to have it both ways, again a court might find this difficult to uphold - but would be more inclined to allow T to have it both ways, because LL has brought this about by issuing preemptive s21.

Link to comment
Share on other sites

I imagine we could add a few more pages to this thread!! but its just the same old arguments we are throwing at each other, so I will leave it there until (if) some litigation on the subject appears!

There I agree we could do with some litigation on the subject or something from the likes of Painsmith who specialise in this area.

Link to comment
Share on other sites

  • 2 weeks later...
Yes, there are some very good landlords. This Sword of Damocles is even controversial among them with many recognizing it as dishonest. Many will not do this at all.

I think it's morally wrong for a landlord/LA to issue a S.21 at the start of a tenancy but then I also think it's morally wrong for a tenant to ignore a S.21 Notice. The only time it might be fair to issue it at the start is where the tenant and landlord are both aware that the agreement will definitely end. That way the tenant gets 6 months genuine notice.

Whilst it is presently legal, when the industry becomes regulated then I think this practice will be frowned upon more and as a result completely weeded out.

Link to comment
Share on other sites

  • 2 months later...

A S.21 notice is a bit of an oddity. In a sense it has no effect. It certainly does not bring the tenancy to an end. The tenant suffers no penalty if he ignores it. The landlord does not need to follow it up. It is nothing more than a preliminary requirement before taking possession proceedings.

I do not think there is anything that a landlord can do to void a S.21 notice. The 1988 Act is clear. If the court is satisfied that the conditions set out in s.21 have been complied with it must make an order for possession.

I do not think there is any justification for the contention that a S.21 notice is an offer by the landlord to accept a surrender. There is certainly nothing in the 1988 Act to justify it. If it were an offer there are two further elements required before a surrender takes place: surrender and acceptance. In the absence of a deed, the tenant must show an intention to surrender and the landlord an intention to accept it.

Link to comment
Share on other sites

  • 4 weeks later...
  • 2 months later...

Just noticed this thread and of course I now realise that me and my flatmate were issued with an S21 when moving into our flat! The lease is up in early march, however we're quite happy to stay on until Q3/4 2010.

Now on the early pages of this thread it seems to be the opinion that once you enter into written negotiation with the LA or LL regarding a new lease the S21 becomes invalid, however later pages disagree with this. Can anyone tell me how I can get the S21 notice invalidated?

I'd prefer to go onto periodic, however I am guessing that the LA will want us to sign a new lease so they can get some more fees from the LL. Also I'm in Scotland so I'm not sure if the law is different up here in terms of S21s.

Link to comment
Share on other sites

  • 7 months later...

As an ex agent I can say that the section 21 notices are used to generate fees !!!

1. tenant billed for a new agreement.

2. landlord pays a "renewal fee " to the agent for the existing tenant often 10 % of 6 months rent.

Link to comment
Share on other sites

I thing this thread would be helped by actually looking at a typical s.21 notice as follows:

NOTICE REQUIRING POSSESSION of a Dwelling House

(England & Wales - Housing Act 1988 as amended by Housing Act 1996 – Section 21 Notice)

I give you notice that I require possession of this dwelling house by virtue of: (delete statement (1) or (2) as appropriate)

(1) Your Fixed-Term Assured Shorthold Tenancy - Housing Act 1988 section 21(1)b

(2) Your Periodic Assured Shorthold Tenancy - Housing Act 1988 section 21(4)a

To: name of tenant

From: name and address of landlord

Address: of dwelling house

DATE OF EXPIRY of this NOTICE:

(This is the last day of the tenancy period – AFTER which date I seek possession - see notes below)

Signed (landlord / agent):

Agent’s Name & Address: (when served by agent)

Date this NOTICE is SERVED:

Section 21 notice

I have highlighted the important line and think the situation is pretty unarguable.

The s.21 notice is a demand that the tennant returns possession of the property to the landlord. In complying with the demand it is a mutually agreed termination of the lease and the landlord has no further claim against the tennant.

The chance of any landlord successfully claiming in court that he did not require possession of the property having issued a formal notice requiring possession must be approximately zero.

Link to comment
Share on other sites

I still think my points stand. Notice is always required by the tenant to leave, unless its the end of the fixed term or the landlord is clear that they intend to enforce the s.21 if they dont (i.e mutual agreement).

Sorry, but that reads very much like what a letting agent would like the law to be rather than what it actually is.

Taken to its extreme your argument is that L & T could mutually agree to end the tennancy only for L to then sue T for an extra month's rent due to his failure to serve notice.

Also I'm less than clear as to where you get the idea that a s.21 is valid only where L intends to enforce it.

Link to comment
Share on other sites

  • 4 months later...

I thing this thread would be helped by actually looking at a typical s.21 notice as follows:

Section 21 notice

I have highlighted the important line and think the situation is pretty unarguable.

The s.21 notice is a demand that the tennant returns possession of the property to the landlord. In complying with the demand it is a mutually agreed termination of the lease and the landlord has no further claim against the tennant.

The chance of any landlord successfully claiming in court that he did not require possession of the property having issued a formal notice requiring possession must be approximately zero.

The position is in fact arguable to the contrary to the point that it is difficult to refute. In Laine and Mitchell v Cadwallader & Cadwallader (2001) 33 HLR 397 the Court of Appeal said:

[...] the judge [...] seems to have overlooked the tenant's obligation to serve notice to quit if he wishes unilaterally to determine a periodic tenancy, an obligation which is not ousted by any statutory provision in the Housing Act 1988 [. …]

It went on to say:

Of course, a tenant does not have to give notice if his landlord agrees to accept with immediate effect the tenant's offer to surrender his statutory periodic tenancy

It is quite clear therefore that a section 21 notice cannot be construed as an offer by the landlord to accept a surrender.

Edited by Damocles
Link to comment
Share on other sites

The position is in fact arguable to the contrary to the point that it is difficult to refute. In Laine and Mitchell v Cadwallader & Cadwallader (2001) 33 HLR 397 the Court of Appeal said:

[...] the judge [...] seems to have overlooked the tenant's obligation to serve notice to quit if he wishes unilaterally to determine a periodic tenancy, an obligation which is not ousted by any statutory provision in the Housing Act 1988 [. …]

It went on to say:

Of course, a tenant does not have to give notice if his landlord agrees to accept with immediate effect the tenant's offer to surrender his statutory periodic tenancy

It is quite clear therefore that a section 21 notice cannot be construed as an offer by the landlord to accept a surrender.

Not sure why you think Laine and Mitchell v Cadwallader is relevant, there is no suggestion that a section 21 notice was issued and the case meerly confims that one can not unilaterally determine a lease without notice, which has never been in dispute.

This case concerned tenants, Mr & Mrs Cadwallader who held a periodic assured shorthold tenancy under the Housing Act 1988. The tenants got behind with their rent, surrendered the keys to the landlord, and promptly left the property. The landlord brought legal action against the tenants for rent arrears, damage to the property, and rent in lieu of notice.

The case tells us nothing about the status of a section 21 notice and it certainly does not follow that "a section 21 notice cannot be construed as an offer by the landlord to accept a surrender"

The key word is "unilaterally". In issuing that s.21 notice the landlord demands that the tennant returns the property to him on or beyond a certain date, in doing so he must therefore agree to accept the return of the property and as such it is a mutually agreed surrender.

Indeed it seems that once the s.21 has been issued it can not be withdrawn without the tennants agreement, so regardless of any subsequent action on the landlords part, once the notice is issued the tennant will always be able to end the tennancy at any point beyond the expiry of the notice period.

Edited by Goat
Link to comment
Share on other sites

  • 1 month later...
Not sure why you think Laine and Mitchell v Cadwallader is relevant etc

Your suggestion that Laine and Mitchell v Cadwallader & Cadwallader does not make my point on the grounds that the word "unilaterally" appears and because the case does not involve the service of a section 21 notice is arguable. I am inclined to think the case leans in my favour, but let's discuss the question on the assumption it does not.

Before the HA 1988 came into force a tenant under a periodic tenancy wishing unilaterally to bring a tenancy to an end needed to serve a notice to quit and nothing in the Act does specifically alters that. The question is therefore whether there is any justification for the view that a tenant served with a section 21 notice is entitled to leave (whether before or after the notice expires) without giving a notice to quit.

The first point to make is that I cannot help feeling that if Parliament had intended that the service of a section 21 notice should give the tenant the right to leave without notice it would have said so in the Act. That is not of course conclusive and is at the most a string to my bow.

The first argument that a tenant does not need to give notice to quit is that a section 21 notice is an offer to surrender. The first hurdle that anyone advancing that argument has to negotiate is to persuade a court that where an act requires a notice to be served that the notice serves any purpose other than that set out in the act. The HA 1988 provides that a section 21 is a preliminary to applying to the court for possession and no more. It is a bit of an oddity in that the act does not (specifically) provide for the notice to have any effect. It is certainly not a notice to quit and does not impose on the tenant any obligation to leave. The fact that the act requires the landlord to state he requires possession is no more than a matter of form.

If we assume that a statutory notice can have a secondary purpose, then the next question is whether the wording amounts to an offer to surrender. Let's suppose for a moment that the tenancy is not an AST. You write a letter to the tenant simply saying "I require possession of the property on..." I do not think that that is an offer to surrender, but rather an invitation to treat. There is not enough there to constitute an offer for a tenant to accept and in any event could only be an offer to accept a surrender on the date specified in the letter. If such a letter is not an offer to surrender, then a section 21 notice cannot be an offer to surrender.

Even if the notice does constitute an offer, the tenant has to accept it for there to be an agreement to surrender. We then run into the problem of whether offer and acceptance comply with section 2 of the Law of Property (Miscellaneous Provisions) Act. They almost certainly will not because "a contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document or, where contracts are exchanged, in each." We can add that an actual surrender, as opposed to an agreement for surrender, needs to be made by deed or by operation of law, which involves unequivocal acts by both parties.

I think therefore that following the service of a section 21 notice notice there can only be a surrender if:

1. The parties specifically agree one.

2. There is a surrender by operation of law. You need a scenario where there is something done by both parties which is inconsistent with the tenancy continuing or where one party does something inconsistent with the tenancy continuing and the conduct of the other party is such that it would be inequitable for the tenancy to continue. The tenant simply leaving the premises is not enough.

The second argument that a tenant does not need to give notice to quit is that a section 21 notice gives the tenant an equitable right to leave because he is only complying with the landlord's request. I initially found this argument attractive, but on reflection had to reject it. I repeat the point I made above: the HA 1988 does not provide for a section 21 notice to have any effect and the fact that the Act requires the landlord to state he requires possession is no more than a matter of form. Apart from that, it is an essential requirement of a tenancy that at any moment of time the parties know the earliest date on which it can be brought to an end. If after the service of a section 21 notice a tenant can leave when he chooses without serving a notice to quit (and whether you argue that he can leave before or after the expiry or date or both) that would fly in the face of a basic principle of landlord and tenant law. Of course statute can change basics principles of law, but there is nothing in the HA 1988 that changes the principle that the parties must know the earliest date on which a tenancy can be brought to an end.

Link to comment
Share on other sites

Your suggestion that Laine and Mitchell v Cadwallader & Cadwallader does not make my point on the grounds that the word "unilaterally" appears and because the case does not involve the service of a section 21 notice is arguable. I am inclined to think the case leans in my favour, but let's discuss the question on the assumption it does not.

etc...............

You're trying to make it complicated, it isn't.

When a s.21 notice is issued 2 things happen:

  1. The landlord demands possession of the property.

  2. The landlord agrees to accept possession of the property.

Quite simply you cannot demand that a person does something without agreeing to the consequences of them doing it.

Link to comment
Share on other sites

Before the HA 1988 came into force a tenant under a periodic tenancy wishing unilaterally to bring a tenancy to an end needed to serve a notice to quit and nothing in the Act does specifically alters that. The question is therefore whether there is any justification for the view that a tenant served with a section 21 notice is entitled to leave (whether before or after the notice expires) without giving a notice to quit.

It's that word again! :rolleyes:

Link to comment
Share on other sites

The first point to make is that I cannot help feeling that if Parliament had intended that the service of a section 21 notice should give the tenant the right to leave without notice it would have said so in the Act. That is not of course conclusive and is at the most a string to my bow.

The notice period is the 2 months contained within the s.21.

Parliaments intention was clearly that the s.21 would bring the tennancy to an end at the end of that period; they seem not to have anticipated the S.O.D issue but it is even less plausible that their intention was to permit landlords to circumvent the notice procedures whilst imposing a strict obligantion on the tennants.

Link to comment
Share on other sites

The first argument that a tenant does not need to give notice to quit is that a section 21 notice is an offer to surrender. The first hurdle that anyone advancing that argument has to negotiate is to persuade a court that where an act requires a notice to be served that the notice serves any purpose other than that set out in the act. The HA 1988 provides that a section 21 is a preliminary to applying to the court for possession and no more. It is a bit of an oddity in that the act does not (specifically) provide for the notice to have any effect. It is certainly not a notice to quit and does not impose on the tenant any obligation to leave. The fact that the act requires the landlord to state he requires possession is no more than a matter of form.

Nonsence - the s.21 is not a legal formality, it is a demand that the tennant gives up possession of the property, to repeat from earlier:

I give you notice that I require possession of this dwelling house

The subsequent provisions in the act then provide the landlord with remedy should the tennant ignore the demand for possession.

Link to comment
Share on other sites

If we assume that a statutory notice can have a secondary purpose, then the next question is whether the wording amounts to an offer to surrender. Let's suppose for a moment that the tenancy is not an AST. You write a letter to the tenant simply saying "I require possession of the property on..." I do not think that that is an offer to surrender, but rather an invitation to treat. There is not enough there to constitute an offer for a tenant to accept and in any event could only be an offer to accept a surrender on the date specified in the letter. If such a letter is not an offer to surrender, then a section 21 notice cannot be an offer to surrender.

More nonsense - ignoring the legal niceties the s.21 actually reads "give me the f***ing house or I'll be round with large men and a court order to throw you out".

The demand isn't an offer, it isn't the begining of a negotiation, it is a notice requiring the tennant to leave.

Link to comment
Share on other sites

Section 21 of the housing act 1988 (repeated in full for completeness):

Recovery of possession on expiry or termination of assured shorthold tenancy. E+W

(1)Without prejudice to any right of the landlord under an assured shorthold tenancy to recover possession of the dwelling-house let on the tenancy in accordance with Chapter I above, on or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy, a court shall make an order for possession of the dwelling-house if it is satisfied—

(a)that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than [F1an assured shorthold periodic tenancy (whether statutory or not)]; and

(b)the landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than two months’ notice [F2in writing] stating that he requires possession of the dwelling-house.

(2)A notice under paragraph (B) of subsection (1) above may be given before or on the day on which the tenancy comes to an end; and that subsection shall have effect notwithstanding that on the coming to an end of the fixed term tenancy a statutory periodic tenancy arises.

(3)Where a court makes an order for possession of a dwelling-house by virtue of subsection (1) above, any statutory periodic tenancy which has arisen on the coming to an end of the assured shorthold tenancy shall end (without further notice and regardless of the period) [F3in accordance with section 5(1A)].

(4)Without prejudice to any such right as is referred to in subsection (1) above, a court shall make an order for possession of a dwelling-house let on an assured shorthold tenancy which is a periodic tenancy if the court is satisfied—

(a)that the landlord or, in the case of joint landlords, at least one of them has given to the tenant a notice [F4in writing] stating that, after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the dwelling-house is required by virtue of this section; and

(b)that the date specified in the notice under paragraph (a) above is not earlier than the earliest day on which, apart from section 5(1) above, the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the notice under paragraph (a) above.

[F5(4A)Where a court makes an order for possession of a dwelling-house by virtue of subsection (4) above, the assured shorthold tenancy shall end in accordance with section 5(1A).]

[F6(5)Where an order for possession under subsection (1) or (4) above is made in relation to a dwelling-house let on a tenancy to which section 19A above applies, the order may not be made so as to take effect earlier than—

(a)in the case of a tenancy which is not a replacement tenancy, six months after the beginning of the tenancy, and

(b)in the case of a replacement tenancy, six months after the beginning of the original tenancy.

[F7(5A)Subsection (5) above does not apply to an assured shorthold tenancy to which section 20B (demoted assured shorthold tenancies) applies.]

(6)In subsection (5)(B) above, the reference to the original tenancy is—

(a)where the replacement tenancy came into being on the coming to an end of a tenancy which was not a replacement tenancy, to the immediately preceding tenancy, and

(b)where there have been successive replacement tenancies, to the tenancy immediately preceding the first in the succession of replacement tenancies.

(7)For the purposes of this section, a replacement tenancy is a tenancy—

(a)which comes into being on the coming to an end of an assured shorthold tenancy, and

(b)under which, on its coming into being—

(i)the landlord and tenant are the same as under the earlier tenancy as at its coming to an end, and

(ii)the premises let are the same or substantially the same as those let under the earlier tenancy as at that time.]

I have highlighted the relevant paragraphs.

Quite simply you imagine that the s.21 notice is a "legal formality" that allows the landlord to begin the process of requiring the tenant to leave. This is not the case.

S.21(1) provides that the landlord demands possession of the property (and agrees to accept possession) and if the tenant ignores the demand then allows him to obtain a court order authorising the use of force to remove the tenant.

I don't know what else to say, the s.21 isn't a meaningless formality, it isn't suggestion that the landlord might like the property back. It is an important legal document that creates rights and obligations that bind both the landlord and tenant.

Edited by Goat
Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

Loading...
 Share

  • Recently Browsing   0 members

    • No registered users viewing this page.




×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.