NTQ during fixed term?

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  • #76
    He's still correct though!. By whatever wording the tenancy still ends when the occupation does.

    You cannot claim otherwise.

    If you wish to insist the tenant must service notice (as you claim they must do but have avoided providing evidence), then you cannot accept the surrender and the tenancy continues.

    You simply can't have it all ways to suit.

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    • #77
      Originally posted by Wright76 View Post
      If you wish to insist the tenant must service notice (as you claim they must do but have avoided providing evidence), then you cannot accept the surrender and the tenancy continues.
      That simply does not make any sort of sense...

      The evidence for my claims is the Housing Act, which I understand you read though perhaps not that thoroughly, apparently.

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      • #78
        Your about the only person that doesn't appear to understand the housing act. Your also comparable to a politician in the questions you will answer and turning the question around.

        I ask you again what part of the housing act or any other law advises a section 21 is simply a passport to court and a tenant can be penalised for complying with it? i I also ask for a law that states a tenant must serve notice despite recieving a section 21?

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        • #79
          Ask 2 Judges and you may get 3 differing opinions
          My reasoned opinion (IANAL just an experienced small LL), is that a s21 alone cannot terminate a Tenancy, but if T vacated up to a week before expiry, with some Notice, I would accept his implied Surrender. If he vacated without due Notice, I would pursue T for full rent due + cost of any Repo hearing reqd.
          T remains in occupation until Tis legally terminated.
          The basis of this thread.

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          • #80
            Originally posted by Wright76 View Post
            I ask you again what part of the housing act or any other law advises a section 21 is simply a passport to court and a tenant can be penalised for complying with it? i I also ask for a law that states a tenant must serve notice despite recieving a section 21?
            The Housing Act 1988 doesn't deal with the situation you outline.
            The act simply deals with the legal process if notice is served under s21 and the tenant doesn't move out.
            There is no suggestion of a tenant being penalised for complying with it.

            So no one can supply a response to that request, but that doesn't prove anything either way.
            The absence doesn't support or weaken either position - the act simply doesn't cover it.
            As a consequence the idea that the housing act wording simply allows a landlord to proceed to the next stage is essentially true, hence the passport comment.
            However, it isn't the only option in life, but it is the only option in that legislation.

            Because there is legislation that says that notice from a landlord can't end the tenancy, something else (other than the notice notice) has to bring the tenancy to an end.
            There's no law (as far as I know) that details exactly what that might be, but that isn't the end of the world, not everything is covered by legislation.

            There's no actual statute (I know of) relating to surrendering a tenancy, for example, so if the existence of a statute is the required standard for "proof", surrender is a non-starter.
            Much of the "law" relating to tenancies arises from the common law, with statutes overlaid on top (with a whole shed load of case law).

            Without wishing to wrongly paraphrase jjlandlord, I think that he is asserting that the tenant leaving in line with the notice is not sufficient to meet the generally accepted criteria for an offer of surrender, and that, as a consequence, something else is required to end the tenancy.
            The best route is therefore for the tenant to serve their own notice as that does end the tenancy.

            It seems to me that, were a tenant required to serve their own notice as a matter of routine procedure, that would also have some supporting evidence, and again, it doesn't.
            It's certainly a way that the process would work - no evidence is needed for that, it's just that it obviously doesn't happen in most cases (and I can't prove that assertion either).

            I do agree with the notion that that might be the "best" route, but not that it is the "only" route.
            My view is that the tenant leaving in line with the landlord's notice is an offer of surrender that the landlord has already accepted, which ends the tenancy.
            However, for complete fairness, I have not been able to prove that to (even) my own satisfaction (other than the fairly self evident point that that is actually what seems to happen). So I can't prove my assertion any more than anyone can disprove it.

            And there are serious issues with it - the notion that notice under s21 is some kind of acceptance of a future surrender is obviously problematic:
            • Can someone accept an offer tp surrender that hasn't yet been made?
            • Where exactly in the s21 notice are the conditions that need to be met in order to have a successful surrender (without which the tenant is going to have to do some quite complex thinking)?
            • If the tenant moving out is a surrender (albeit not one that is absolutely black and white) doesn't my argument make things less clear rather than the opposite?

            The alternative view is that there's a period where we have a schrodinger's tenancy where the tenant leaves in line with s21 notice and the tenancy is both over and ongoing, which is resolved by the landlord retaking control of the property, which excludes the tenant and the tenancy ends.

            I suspect that this is totally unsatisfactory from a legal point of view, but doesn't actually ever arise in a way that causes a real life issue.
            Tenants who leave when served notice don't try and re-enter to live in the property, and landlords who's tenants have moved out don't try and assert that the tenancy is ongoing - so there's never a need to resolve the issue one way or the other.

            But the absence of definitive legislation is a red herring - it doesn't matter either way.
            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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            • #81
              Originally posted by jpkeates View Post
              The Housing Act 1988 doesn't deal with the situation you outline.
              The Act clearly states what a s.21 notice does, which is nothing apart from allowing the landlord to go to court.

              Originally posted by jpkeates View Post
              So no one can supply a response to that request, but that doesn't prove anything either way.
              I have just done so.

              If a s.21 does nothing then the tenant may only end the tenancy by surrender or notice to quit. Both of which are very well documented and established in law.

              Note that if the landlord goes to court and the tenancy still exists then the court has to issue a possession order as it is obligated to do so by law. But it is free not to award costs to the landlord, which indeed happens, and I can see this happening if the tenant says that the landlord is refusing to accept a surrender.

              Comment


              • #82
                Originally posted by jjlandlord View Post
                If a s.21 does nothing then the tenant may only end the tenancy by surrender or notice to quit. Both of which are very well documented and established in law.
                Notice to quit is pretty well defined, "surrender" is not, so while that list looks complete, it is in fact not.

                For a tenant to surrender a tenancy, there should be an offer of surrender and the landlord has to accept that offer.

                If s21 notice is served and a tenant simply moves out, there's no offer to surrender (the tenant hasn't offered anything, they've simply done what they were asked to do).
                The absence of a tenant isn't in itself an offer to surrender (our [in]famous tenant in prison proves that).

                The reality is that the landlord and tenant have reached the same point, the tenant has surrendered and the landlord has accepted this, but that doesn't seem to be the legal position, it simply means that neither party has any incentive to rock the boat.

                Thought experiment:
                Landlord gives notice to end 10th June.
                Tenant makes no contact with landlord.
                Tenant is not in property on 11th June, landlord does not take possession.
                Landlord sues tenant for rent due on 10th June for the next month.
                Does the tenant owe it?
                Would a court award it?

                Landlord gives notice to end 10th June.
                Tenant makes no contact with landlord.
                Tenant is not in property on 11th June, landlord takes possession.
                Tenant demands access on 12th June and claims illegal eviction.
                Outcome?

                I think the answer is likely to be, depends on whether there's furniture in the 11th June or what the landlord thinks has happened.
                Which, in my view, means the process fails on the basis of certainty.
                If both parties can see the outcome in different but valid ways, it doesn't work.
                But, equally, we can't have thousands of tenancies that are both ongoing and ended.
                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


                • #83
                  Originally posted by jpkeates View Post
                  Notice to quit is pretty well defined, "surrender" is not, so while that list looks complete, it is in fact not.
                  Surrender is very well defined. That list is complete in the sense that the other ways for a tenancy to end (e.g. frustration) are not really relevant.

                  Without a court order, a periodic AST ends either by notice to quit or surrender.

                  Comment


                  • #84
                    So in answer to my question, no, there isn't a legal definition stating a section 21 is simply a passport to court, and no there is no legislation that a tenant must serve notice on return.

                    For a seemingly intelligent person Jjlandlord, your reference to something that doesn't exist is absurd.

                    "yes, that's exactly what the law says". No it doesn't! The law and guidance gives instruction when a section 21 is ignored by the tenant.

                    It doesn't give instruction to a tenant at all, and that is because it is clear that you cannot give instruction to someone and then tell them you didn't mean it. Further backed up that a section 21 cannot be revoked.

                    Now please unless you can provide evidence rather than words that your claims are true I think we should end this argument because your frankly being ridiculous

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                    • #85
                      Insults won't hide your shortcomings. I have reported your post.

                      It's one thing to "read the law", it's another to understand what you read.

                      I'll leave you now, you are not worth wasting more of my time.

                      Comment


                      • #86
                        Originally posted by jjlandlord View Post

                        Surrender is very well defined. That list is complete in the sense that the other ways for a tenancy to end (e.g. frustration) are not really relevant.

                        Without a court order, a periodic AST ends either by notice to quit or surrender.
                        And so if the tenant leaves in line with your instruction the tenancy has never ended at all? Millions of tenancies throughout the country are continuing? Or are you actually accepting their surrender because you issued them a notice to do so?

                        Please go ahead and ignore the law as it reads. Take tenants to court for outstanding rent when they don't give you a notice to quit. See how far it will get you.

                        Your allowing your ignorance of refusing to accept that a section 21 is a request for the surrender of the property to interfear with common sense.

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                        • #87
                          You can report my post as you please. Admin can look back and see you have said much worse and created this. I'm sure they will also have access to the posts iv had notifications of and that you then deleted

                          Comment


                          • #88
                            Wright76, please tone down your replies. If you believe that jjlandlord has been in any way insulting then responding in kind is not an option, your options are to not reply, reply politely, report the post.
                            I also post as Mars_Mug when not moderating

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                            • #89
                              I do apologise. I should have brought his initial insults to your attention rather than retaliating in the same manner

                              Comment


                              • #90
                                Originally posted by jpkeates View Post
                                For a tenant to surrender a tenancy, there should be an offer of surrender and the landlord has to accept that offer.
                                A more practical approach is to recognise that in issuing a s21 notice it is the LL who has offered to accept surrender (with possession proceedings as a probable alternative). If the T moves out (and personally, in the absence of an existing dialogue about the T leaving, I have no difficulty, at all, recognising that the T does leave 'as a result of' the notice') the T has signalled acceptance. The tenancy ends once the LL is in a position to resume possession. Every ounce of common sense in my body tells me that the tenancy ends: even if (and I accept) the law could be clearer.

                                There seem to be two factors that make this process unique: one is that while the initiative is taken unilaterally by the LL, he can't add special conditions (and that might well include insisting on a response by way of any acknowledgement, or counter-notice) and that he can't revoke the notice. The T is deemed to be not at fault, and I cannot conceive of a Judge (daft though their decisions sometimes appear to be) holding a T to a tenancy the LL has signalled the formal wish to end.

                                My only proviso is that the giving up of possession should be clear and unequivocal: more than abandonment. So the property should be empty and the keys should have been returned. Ideally, the LL will have been able to inspect/check out the T, but I don't see that it is just for the T to be required to do more than at the end of a fixed term. There, the LL cannot demand any prior notice of the T's intention, but he must accept, either that the T has vacated, or that a SPT has come into being.

                                Off the top of my head, I don't really see that the position is any different following notice under s8. If the T leaves, as a result of either notice, that is exactly what the LL wanted. Seemingly, there would only be one LL on this forum that wouldn't be delighted at the result ...

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                                • Abandonment
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                                  20-09-2017, 19:56 PM
                                • Reply to Abandonment
                                  KTC
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                                • Reply to Abandonment
                                  Wannadonnadoodah
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                                • Reply to Abandonment
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                                  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
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                                  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
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