NTQ during fixed term?

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  • #46
    In English law, the principle is, essentially, that the law is what it says, not what was meant.
    When you read appeals cases, the amount of time spent looking at definitions and trying to match the precise wording to the precise situation is testament to this.

    And, I disagree, there's a significant difference between "after I issued Jim a section 21, he left" or "as a result of issuing Jim a section 21 he left".
    The first is simply observing a sequence of events, the second implies a connection between the two.
    "After going to hospital Jim died" versus "as a result of going to hospital Jim died."

    *One of my favourite pieces of legal clarification is in the Sexual Offences Act 2003 - " In relation to an animal, references to the vagina or anus include references to any similar part."
    I would give my right arm to have been in the meeting where someone raised that as a problem...
    When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
    Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

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    • #47
      Lawyers often debate what was 'the Will (intention) of Parliament' in the resultant Law, which may lead to an eventual change to the original Law.

      Comment


      • #48
        It is for the tenant to surrender their lease, and then for the landlord to accept (or not). A s21 notice by itself, and for that matter a tenant leaving as a result of the notice is probably not sufficient to meet the standard required for surrender by operation of law.

        OTOH, on the basis of promissory estoppel a landlord probably cannot claim for ongoing rent etc. from a tenant who has left as a result of receiving a notice requiring them to give up possession. Thus the only sensible option would then be for the landlord to accept the tenant's offer to surrender. If the giving up of possession was after the notice expiry however, the arguments get... interesting.

        --

        Lawyers may well argue the intention of parliament, but as jpkeates said, what the law actually says traditionally trump what was necessarily intended. Only in very limited circumstances are the Hansard admissible to interpret a piece of law.

        I think the intention of parliament is clear, but whether a literal reading of s21C necessarily support that intention is still to be determined by a senior court.
        I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

        Comment


        • #49
          Originally posted by KTC View Post
          OTOH, on the basis of promissory estoppel a landlord probably cannot claim for ongoing rent etc. from a tenant who has left as a result of receiving a notice requiring them to give up possession. Thus the only sensible option would then be for the landlord to accept the tenant's offer to surrender.
          What is the basis for this claim? How does promissory estoppel even comes into play?

          A tenant may not leave as he please after a s.21 notices (as repeated as nauseam). Landlords used to serve precautionary s.21 notices and these never allowed tenants to do as they pleased.

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          • #50
            Originally posted by jjlandlord View Post
            A tenant may not leave as he please after a s.21 notices (as repeated as nauseam). Landlords used to serve precautionary s.21 notices and these never allowed tenants to do as they pleased.
            Assuming by "precautionary" you mean the notices served with a tenancy agreement or way in advance of when they could be used...

            There was a practical impediment - most leases have a fixed term, so the landlord's "precautionary" s21 notice wasn't followed by the tenant leaving in line with the notice. The notice was impossible to comply with in most cases - the notices usually required the tenant to leave within the fixed term
            Once the tenancy went periodic, or was replaced with a new tenancy another way, the "precautionary" s21 notice ceased to be valid in any case, as the tenancy against which it was served had ended.

            I am sure situations arose where that wasn't the case, but the complications of the "correct" form of s21 notice would probably tidy up most of the rest of them. Although case law resolved the anomaly fairly recently, notice served in the fixed term would have to be s21 (1&2) and in a periodic tenancy s21(4). So most notices would tend to become invalid over time anyway.

            So, your point is eminently reasonable, but, in practice pretty rare (and, if the situation was applicable, someone would have to be pretty on the ball to spot the outelier).

            More to the specific point, the legislation that introduced the apportionment also ended the "precautionary" s21 notice by introducing expiries and limits to when they can be served, so there's some consistency there.
            When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
            Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

            Comment


            • #51
              Originally posted by jpkeates View Post
              Once the tenancy went periodic, or was replaced with a new tenancy another way, the "precautionary" s21 notice ceased to be valid in any case, as the tenancy against which it was served had ended.
              That's obviously incorrect.

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              • #52
                OK so what you are saying is that we must not accept the tenants departure after issuing a section 21?. It isn't legal and they must serve notice in return?

                So let's go to court with this claiming for rent arrears as the tenant didn't serve notice. Your making the claim.

                Tenant attends court with his section 21. "but I left as a result of this notice your honour-it tells me I must vacate and therefore I did as soon as I was able"

                Now what do you think a judge would order?. You have sent the tenant a demand/request/notice, whatever you want to call it and told him he must go. The law on that document is that it can't be revoked, so you can't defend yourself that "oh I sent it just incase"

                If you have sent a section 21 and tenant leaves it must be assumed that they left as a result of it. The only other option is to argue in court that they left for some other reason, but you would have no evidence and yet the section 21 is an unarguable fact. You would struggle to win.

                That brings jpkeates anology with Jim back in. If Jim left or died AFTER a visit or section 21 there would be an investigation without doubt. If he left or died as a RESULT of his visit or section 21 then there's no argument.

                So it seems to me you are looking to raise an investigation into why the tenancy ended. That will be costly rather than accepting you issued a section 21 and the tenant then left.

                Again as I see it, the badly worded legislation can probably be used as nothing more than a defence.

                Maybe the reference to court after apportionment is to address these issues. If you aren't accepting the departure being as a result of the section 21 then you should continue with the possession hearing you have paid for and let a judge decide?

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                • #53
                  I think therefore that if tenant leaves within the first two months you cannot win and as the RLA suggest, you must apportion the rent and return.

                  If they stay passed the date they were warned then you have a choice. Either accept their surrender on the day that they leave, take back your property and apportion the rent, then relet, or accept their surrender and tell them as they didn't serve notice they are liable for the whole month and expect a court claim against you, Or advise they didn't leave before they were told to and must now await a possession hearing.

                  I don't think there can be any argument In the first instance. And I think the idea was to prevent landlords issuing section 21s "just incase" and maybe suffering a consequence if they do. The housing lawyer I spoke to confirmed that, and as it only applies to no fault evictions (section 21), landlords may be more inclined to use a section 8 where it is appropriate

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                  • #54
                    Originally posted by Wright76 View Post
                    And I think the idea was to prevent landlords issuing section 21s "just incase" and maybe suffering a consequence if they do. The housing lawyer I spoke to confirmed that
                    That's clearly not the case.
                    However it applies, the right to apportionment changes nothing to what a s.21 does and what a tenant may react.

                    They prevented landlords from serving precautionary notices by having notices become invalid after a few months.

                    This right to apportionment is simply Shelter and friends at work.

                    Comment


                    • #55
                      Originally posted by jjlandlord View Post
                      What is the basis for this claim? How does promissory estoppel even comes into play?

                      A tenant may not leave as he please after a s.21 notices (as repeated as nauseam). Landlords used to serve precautionary s.21 notices and these never allowed tenants to do as they pleased.
                      Err, maybe not "promissory", but one of the general concept of the estoppel anyway.

                      I'm not arguing that the sole act of a tenant giving up possession would determine a tenancy. The sequence of events we hypothetically have here: 1) a landlord serve the tenant a notice in writing stating that the landlord requires possession of the dwelling-house after a specified date; 2) the tenant act in reliance on that notice; 3) the landlord is claiming that the tenancy, and hence liability for rent etc., is continuing despite (1) & (2).

                      I'll flip the question back to you. How does a estoppel defence not arise for the tenant in such a circumstance?

                      Yes, landlords used to serve "precautionary s.21 notices" all the time. I don't see how changes the argument here.

                      Speaking of precautionary s.21 notices, many landlords complain that councils don't offer temporary accomdation to tenants they have served s21 and want to get rid of until bailiffs, and want them to rely on the s21 instead. Trying to have it both ways?

                      That's obviously incorrect.
                      Well remove the bit about periodic tenancy.
                      I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

                      Comment


                      • #56
                        Yes - that's going too far.
                        My mistake.
                        When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                        Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                        Comment


                        • #57
                          Originally posted by jjlandlord View Post
                          This right to apportionment is simply Shelter and friends at work.
                          Well maybe. But the same piece of legislation also removed the end of period requirement under s21(4), along with the effect of Taylor v Spencer of course for most ASTs. Idea probably being (yes I'm trying to infer the intention of parliament.....) if a landlord can required (in writing at least) that a tenant leave in the middle of a period, then it's only fair for the tenant to be apportion prepaid rent for after that time.

                          I think therefore that if tenant leaves within the first two months
                          Actually on double checking Form 6A and (some) valid wordings of s21(4), they says "after" a certain date possession is required so tenant leaving 3, 5, .., 2+X months after would still satisfy the wording of the notice.
                          I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

                          Comment


                          • #58
                            Originally posted by KTC View Post

                            Well maybe. But the same piece of legislation also removed the end of period requirement under s21(4), along with the effect of Taylor v Spencer of course for most ASTs. Idea probably being (yes I'm trying to infer the intention of parliament.....) if a landlord can required (in writing at least) that a tenant leave in the middle of a period, then it's only fair for the tenant to be apportion prepaid rent for after that time.



                            Actually on double checking Form 6A and (some) valid wordings of s21(4), they says "after" a certain date possession is required so tenant leaving 3, 5, .., 2+X months after would still satisfy the wording of the notice.
                            I totally agree, I was just trying to find any justification for claims that a tenant must serve notice in return of a section 21. It could never ever be demanded within the 2 month notice period, and in my opinion I agree it couldn't be demanded thereafter. But JJlandlord is adamant that requirement exists.

                            I think personally you would be laughed out of court. The constant reference to a section 21 being nothing but a passport to court is ridiculous. Your telling a tenant to leave else there are consequences and the notice gives you access to those consequences.

                            To ignore the fact it is essentially a notice to quit is absurd and the perfect RESULT of issuing a section 21 is that the tenant leaves. Unless of course you have issued it "just incase" and the tenant calls your.bluff. In which case you deserve to lose your rent.

                            As someone said above, you can't have it both ways

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                            • #59
                              Originally posted by KTC View Post
                              I'll flip the question back to you. How does a estoppel defence not arise for the tenant in such a circumstance?
                              You made a claim. You tell us.

                              Originally posted by KTC View Post
                              Yes, landlords used to serve "precautionary s.21 notices" all the time. I don't see how changes the argument here.
                              It was claimed that a tenant may freely leave whenever he pleases once he has received a s.21notice. If that was indeed the case you can imagine the mess with all those precautionary notices.

                              Originally posted by KTC View Post
                              if a landlord can required (in writing at least) that a tenant leave in the middle of a period, then it's only fair for the tenant to be apportion prepaid rent for after that time.
                              It was already the case that a section 21 notice could expire mid-period. Even before Spencer v. Taylor.

                              Originally posted by Wright76 View Post
                              The constant reference to a section 21 being nothing but a passport to court is ridiculous.
                              Yet that's exactly what the law says.

                              Comment


                              • #60
                                Originally posted by jjlandlord View Post
                                You made a claim. You tell us.
                                A promissory estoppel claim is essentially always available (one of the reasons I hated the whole subject).
                                So that's not really a fair question.

                                I'd love to see a property court judge's face if it came up related to a s21 notice, though.
                                When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                                Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                                Comment

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                                • Abandonment
                                  buttons
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                                  20-09-2017, 19:56 PM
                                • Reply to Abandonment
                                  KTC
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                                • Reply to Tenant having parking issues trying to hold me responsible
                                  leaseholder64
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                                • Reply to Tenant having parking issues trying to hold me responsible
                                  security2
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                                • Reply to Abandonment
                                  Wannadonnadoodah
                                  May only be tenants who have housing benefit paid then.
                                  20-09-2017, 21:17 PM
                                • Reply to Abandonment
                                  buttons
                                  This I believe is incorrect, I do have experience of that part happening before and sent the council a copy of the AST and they cancelled my charge....
                                  20-09-2017, 21:14 PM
                                • Reply to Abandonment
                                  Wannadonnadoodah
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                                  20-09-2017, 21:02 PM
                                • Reply to Abandonment
                                  buttons
                                  I thought you could have it so that property was marketed but he still had liability as he wont be able to pay anything as he is unemployed and would reduce his liability to council tax if let before the end of his tenancy.
                                  20-09-2017, 20:48 PM
                                • Reply to Abandonment
                                  KTC
                                  Either you recover the property, or the tenant is still the tenant with liability for rent & council tax (during fixed term of 6 months or more). You can't have it both ways of getting the property back but not liable for council tax.
                                  20-09-2017, 20:38 PM
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