NTQ during fixed term?

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  • #91
    Originally posted by Wright76 View Post
    I do apologise. I should have brought his initial insults to your attention rather than retaliating in the same manner
    I did not insult anyone.

    Originally posted by StuartH View Post
    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).
    This has been mentioned in this thread: It is not established that a s.21 notice has such meaning.

    Originally posted by StuartH View Post
    Off the top of my head, I don't really see that the position is any different following notice under s8.
    That's right. And a s.8 notice has no effect either.

    Originally posted by StuartH View Post
    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.
    So you in fact agree that a tenant may not just leave since you are describing a surrender offered by the tenant and explicitly accepted by the landlord.

    And, of course, a s.21 notice is nothing like the end of a fixed term tenancy.

    Originally posted by StuartH View Post
    Seemingly, there would only be one LL on this forum that wouldn't be delighted at the result ...
    You're missing the point.

    A s.21 notice does not give the tenant the right to leave at any point he pleases. That it does has been claimed in this thread and triggered this 'discussion'. I'm sure all landlords would not want it to be the case.

    The second point was about the new right to apportionment of rent.

    We seem to be going in circle, and I don't see any argument based on law.

    Once upon a time Lawcruncher had written a reasoned comment on the issue: https://forums.landlordzone.co.uk/fo...353#post234353

    But, of course, he might also lack common sense and be the other person not to understand anything of the Housing Act.

    I would also note that case law states that nothing in the Housing Act relieves the tenant from having to serve notice to quit if he wishes to unilaterally end the tenancy.

    Comment


    • #92
      Originally posted by StuartH View Post
      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.
      That's pretty much my own position.

      The issue I have (and I accept that, at this point, I'm arguing with myself!) is that accepting an offer prior to the offer is difficult, legally.

      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


      • #93
        It's perfectly simple. Either you accept the tenancy ended as a result of the section 21 or don't.

        By taking the keys back and control of the property you are somehow accepting the surrender. Now, if you have no written notice from the tenant or deed of surrender your most definitely accepting the tenancy ended as a result of the section 21.

        If as you claim, the tenant must lawfully end the tenancy themselves, then you must insist that they give you and serve written valid notice. You can't take control of the property and again have it both ways.

        Assuming you haven't accepted the return of the property and the tenants notice has not yet expired when your court possession date arrives.

        The legislation states that a judge must order apportionment if it hasn't already been done. So...there is actually a need for that part. It's going to apply to stubborn landlords who refused to comply with the spirit of the section 21.

        Won't it just be quicker and less expensive to accept the tenancy ended as a result of the section 21?

        Comment


        • #94
          Originally posted by Wright76 View Post
          The legislation states that a judge must order apportionment if it hasn't already been done. So...there is actually a need for that part.
          The legislation the says that also says that it must happen at a hearing that is impossible.

          It has to happen at a repossession hearing when the tenancy has ended as a "result" of a s21 (and ended during a tenancy period to require a rebate).

          The only possible scenario in which I can see a court sitting to discuss repossession when the tenancy has already ended is if the tenant has served notice and then failed to leave*.
          Which hearing is then not as a "result" of a s21 notice (as any s21 notice served would be academic).

          What possible situation can cause a court to hold a repossession hearing with the circumstances described in the legislation?

          *ignoring the difficulty for notice from a tenant that is both valid and ends within a tenancy period.
          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


          • #95
            Originally posted by jpkeates View Post
            The legislation the says that also says that it must happen at a hearing that is impossible.

            ...
            Let's try to construct that piece of legislation.

            (1) & (2) can stand on its own. There's no inconsistence to prevent accepting that a tenant leaving after receiving a s21 before/without court is leaving "as a result of the service of a notice". The bit some have difficuities with is (3), since the court hearing would only be happening if the tenant hasn't left yet, so that the "if" conditional in (3) must always be satisfied in a possession hearing.

            Nothing in (3) says that (1) & (2) only applies if there were a possession hearing. (1) & (2) can be interpreted to give rise to the requirement for a landlord to repay overpaid rent. If the LL don't, the (now) ex-tenant can sue for it.

            As to (3), some convoluted wordings in the eventual court order can resolve that. "D to give up possession by X/Y/Z and then C to repay £XYZ; if D ignore this order and the order has to be executed, then C only repay by the following formula."
            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


            • #96
              Originally posted by jjlandlord View Post
              So you in fact agree that ...
              I'm pretty unlikely to agree with anything you write, as a matter of general principle; and certainly, see no value in debating why. I wish you a good afternoon.

              Comment


              • #97
                Originally posted by jpkeates View Post
                That's pretty much my own position.

                The issue I have (and I accept that, at this point, I'm arguing with myself!) is that accepting an offer prior to the offer is difficult, legally.
                Which came first, the chicken, or the egg?

                Comment


                • #98
                  Originally posted by KTC View Post
                  As to (3), some convoluted wordings in the eventual court order can resolve that. "D to give up possession by X/Y/Z and then C to repay £XYZ; if D ignore this order and the order has to be executed, then C only repay by the following formula."
                  Except that the repossession order doesn't actually end the tenancy either, it simply says that it must end.
                  Then, either the tenant has to surrender the property to comply with the order or the order has to be executed by bailiifs.
                  Which actually ends the tenancy.

                  So the court can't predict the date the tenancy will end in order to calculate a rebate, it can't know exactly when X/Y/Z will be, only when it should be*.
                  And, if X/Y/Z is after the next rent due date, the court can't order the rebate of rent not yet paid.

                  There simply isn't a way to make that legislation work in practice.

                  And I do take issue with the notion that a tenancy ends "as a result of" the landlord serving notice.
                  You either have to accept that "as a result of" means "following" or "as a consequence of" (which is a bit of a stretch, given those words werre ) or that it means "as a result of notice from the landlord amongst the other things it's also a result of" (which is a heck of a stretch).



                  *and the date can be delayed by up to 28 days if the tenant appeals to the court.

                  Last edited by jpkeates; 22-08-2017, 13:00 PM. Reason: Added quote for context
                  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


                  • #99
                    Originally posted by jpkeates View Post
                    I do take issue with the notion that a tenancy ends "as a result of" the landlord serving notice.
                    I assume you consider the tenancy ends by surrender, but it's an even greater stretch, surely, to suppose that the 'idea' of the tenant to suddenly want to go is unrelated to the 'Notice Requiring Possession' clutched in his hands? In a genuine 'no fault' situation, the considerable disruption and expense of an unwanted removal must be a very unwelcome burden on a tenant (and they have my sympathy in such circumstances). Such a surrender is under duress and may only occur because the tenant considers that the alternative (being evicted, with an adverse order for costs) is a greater peril.

                    Comment


                    • Anyone read Lawcruncher's comment I linked to previously? Anyone has any argument based on law? Because this 'discussion' seems to be going in circle based on nothing at all.

                      Originally posted by StuartH View Post
                      I'm pretty unlikely to agree with anything you write, as a matter of general principle; and certainly, see no value in debating why. I wish you a good afternoon.
                      Well, that surely is going to enhance your credibility...

                      Comment


                      • Originally posted by StuartH View Post
                        I assume you consider the tenancy ends by surrender, but it's an even greater stretch, surely, to suppose that the 'idea' of the tenant to suddenly want to go is unrelated to the 'Notice Requiring Possession' clutched in his hands?
                        That's a good point (dammit).

                        The legislation disagrees though... "If the repayment of rent described in subsections (1) and (2) has not been made when the court makes an order for possession under section 21" is part of section 3.
                        So it must be possible for the rebate required in 1 & 2 to arise without a surrender (the court can't issue an order for possession if the landlord already his it).

                        The wording is weirdly proscriptive, the court "must order the landlord to repay the amount of rent to which the tenant is entitled."
                        So the court has no choice, and the tenancy must have ended for the tenant to be "entitled" to the rebate of rent.

                        Which is a very specific set of circumstances.
                        The tenancy has ended - which must be as the result of the tenant serving notice.
                        The tenant must still be in possession for a hearing to be necessary.
                        The landlord has to rebate the tenant some rent, which would probably be offset by the costs associated with the hearing (which should be awarded against the tenant as the landlord has been successful) and the theoretical mesne profit claim for the tenant holding over.

                        Just how often does that happen!
                        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


                        • Originally posted by jpkeates View Post
                          Just how often does that happen!
                          I agree, that on that narrow point, the law is an ass, and it doesn't (and probably couldn't) happen. My point was the wider one - on the question of the mechanism by which the tenancy ends (and the Notice that precipitated it). I don't think we do disagree on that.

                          Comment


                          • Originally posted by jpkeates View Post
                            Just how often does that happen!
                            Never because that scenario falls outside section 21C(3).

                            But this is a red herring.

                            Comment


                            • Originally posted by jjlandlord View Post
                              Never because that scenario falls outside section 21C(3).
                              The order for the landlord to repay the tenant described in 21c3 can never happen.
                              I was trying to crowbar the process into being somehow, as it's hard to think that the clause has zero purpose.

                              The tenant has to have left the property to satisfy 21c1, a pre-condition of 21c3, which makes it unlikely that a court could consider making an order for possession.
                              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


                              • Originally posted by StuartH View Post
                                My point was the wider one - on the question of the mechanism by which the tenancy ends (and the Notice that precipitated it). I don't think we do disagree on that.
                                I think we do agree, provided the tenant leaves in line with the landlord's notice, not just at some point after receiving it.
                                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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