NTQ during fixed term?

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  • Originally posted by jpkeates View Post
    I think we do agree, provided the tenant leaves in line with the landlord's notice, not just at some point after receiving it.
    It seems reasonable that the T cannot necessarily expect to be released from the tenancy obligations earlier than the date mentioned in the LL's notice, but I can readily see circumstances where a T cannot conclude arrangements to move on the actual day after the LL's notice expires. In the prescribed form, the LL cannot specify any particular date, but just name a date (not being less than two months hence) after which possession is required. A few days, a month, or two-three months are all dates 'after' - and if the LL doesn't like it, he has his remedy.

    I suppose I'm suggesting that the T is probably free to surrender the tenancy right up to the date on which the s21 notice is no longer actionable. If not, why not?

    Comment


    • Originally posted by jpkeates View Post
      The order for the landlord to repay the tenant described in 21c3 can never happen.
      I think that it can but, again, that's a red herring. The tenant is free to sue through a money claim after the tenancy has ended.

      Originally posted by jpkeates View Post
      I think we do agree, provided the tenant leaves in line with the landlord's notice, not just at some point after receiving it.
      Why would that make any difference? Especially considering s21(4) that requires the use of 'after'.

      Either a s.21 notice changes the established position regarding determination of a tenancy or it does not. Nowhere does it state that the position is changed (again, that's also in case law).

      I notice that everyone seems to ignore Lawcruncher's reasoned post.

      Comment


      • Originally posted by jjlandlord View Post
        Why would that make any difference? Especially considering s21(4) that requires the use of 'after'.

        Either a s.21 notice changes the established position regarding determination of a tenancy or it does not. Nowhere does it state that the position is changed (again, that's also in case law).

        I notice that everyone seems to ignore Lawcruncher's reasoned post.
        I haven't ignored lawcruncher's reasoning at all, that's one of the reasons I think the tenant has to leave in line with the landlord's notice to be surrendering with the landlord's consent.

        A key element of lawcruncher's argument is that the term of a lease must be knowable, as that's a key part of what actually constitutes a lease.
        So a tenant can't leave at any point "after" a date, they can only leave on an agreed date.

        The landlord asks the tenant to go on this date, the tenant does so.
        In my view, that's an agreed surrender and the tenancy ends.

        If the landlord says go on this date and the tenancy leaves a couple of weeks later, that's not what the landlord has requested, so their agreement to the tenant's surrender can't be inferred.

        As we disagree fairly fundamentally about this, I'm explaining the apparent discrepancy rather than expecting you to agree with the point.
        I don't expect you to change your mind (and don't have any more evidence than before to make me think you should).
        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
          The landlord asks the tenant to go on this date, the tenant does so.
          In my view, that's an agreed surrender and the tenancy ends.

          If the landlord says go on this date and the tenancy leaves a couple of weeks later, that's not what the landlord has requested, so their agreement to the tenant's surrender can't be inferred.
          The obvious difficulty with that is that for a tenancy where the prescribed form 6a is required, the LL can't specify an actual date. The notes in the form say that the landlord can/should, but when it comes to filling in the actual blank, the word 'after' is found. To take that to have to mean 'the next day' (and no other) is to twist the ordinary meaning of the word too far.

          Comment


          • Too much is being read into it when the intention Is clear.

            I can therefore as iv said before, see that it can be used as a defence and a defence only.

            Section 21c advises if rent hasn't already been apportioned, then the judge will order that it will. that sentence alone proves apportionment CAN happen before a possession hearing, and so that throws out any argument to the contrary.

            We are all assuming there will be no court hearing if the tenant has left, but that's not necessarily true.

            Many landlords continue with the hearing they have paid for, whether to recover rent arrears or if the tenancy is still in doubt.

            If​​​​ your disputing the fact the tenancy has ended and insisting the tenant serves notice then I would suggest the hearing will still go ahead.

            It is my belief that the judge will then hear confirmation that the tenant has left as a result of the section 21 and order apportionment.

            Comment


            • Again, it is a red herring and unimportant how the court will order repayment.

              The issue is whether repayment is due at all.

              Originally posted by jpkeates View Post
              The landlord asks the tenant to go on this date, the tenant does so.
              In my view, that's an agreed surrender and the tenancy ends.
              The landlord does not really asks anything. The landlord is simply complying with a statutory requirement.

              It is for the tenant to then offer to surrender the tenancy or to serve notice.

              Originally posted by StuartH View Post

              The obvious difficulty with that is that for a tenancy where the prescribed form 6a is required, the LL can't specify an actual date
              It has to use 'after' as this is a statutory requirement.

              Comment


              • If that were true the statutory requirement would be worded to reflect the need for the tenant to serve notice and it doesn't.

                It provides consequences if they don't comply but nowhere does it indicate that If they follow the instructions the landlord can just ignore the action they have taken and continue with the tenancy. It's more than a statutory requirement it's a request to leave and by dictionary definition it is a request to surrender


                It goes back to common sense and English language that you cant tell someone to do something and then sue them when they do.

                If your taking back your property, your agreeing the tenancy has ended because of something. If you don't have a notice to quit off the tenant and you don't have a surrender, then you must be accepting it's ended as a result of the section 21. There isn't another explanation.

                So on your basis, you cannot take back your property and relet. You must wait for the tenants notice to expire or the possession hearing date to arrive.

                What is more cost effective? Insisting on all of the above or accepting the surrender and that it was a result of the section 21 you issued?.

                That will be your own personal call but I know what I will do

                Comment


                • Originally posted by jjlandlord View Post
                  It has to use 'after' as this is a statutory requirement.
                  Why is the word after a statutory requirement? It must have a reason to be there?

                  Comment


                  • Originally posted by Wright76 View Post
                    If that were true the statutory requirement would be worded to reflect the need for the tenant to serve notice and it doesn't.
                    Why would that be?

                    It is established that a periodic tenancy ends either by surrender or notice to quit. Since s.21 is silent on this then it does not change any of that. (and for the n-th time this is confirmed by case law).

                    Originally posted by Wright76 View Post
                    It goes back to common sense and English language that you cant tell someone to do something and then sue them when they do.
                    No-one has suggested that a landlord should sue...

                    Originally posted by Wright76 View Post
                    If you don't have a notice to quit off the tenant and you don't have a surrender, then you must be accepting it's ended as a result of the section 21
                    The tenancy ends either by surrender or notice to quit. If neither happened then the tenancy has not ended.

                    Comment


                    • But if your accepting the surrender then it HAS happened.

                      Your nit advising to sue but your stating they are liable for rent which will lead to a court case when the tenant disputes it.

                      You say a section 21 is silent, but my understanding of section 21 (4) b. Is that it advises the landlord must have given them a date by which the tenancy can be brought to an end.

                      It is stating that the tenancy can be brought to an end upon accepting the terms of the section 21?

                      Comment


                      • If someone could copy and paste section 21 (4) a and b (I'm really not technical!), the law seems to recognise that a tenancy CAN end as a result of a section 21 and before a possession hearing.

                        21(4)b........the tenancy could be brought to an end by notice to quit given by the landlord on the same date as the notice under para (a)

                        The date of the notice on para a is the two month notice period. Since possession cannot be applied for in court until after that date, the law is clearly stating that the tenancy could be brought to an end.

                        If we still refuse to accept that then the court must end the tenancy on the date in para (a) which would mean a backdated possession order and an epic waste of time?

                        Comment


                        • A lot of energy has been expended in this debate. It has been suggested a LL has no need to take Court action if T apparently vacates after receiving a s21 but with no Notice. LL cannot safely assume has vacated without Court confirmation, to avoid a T allegation of 'illegal eviction'. Equally I would be unhappy if T vacated without due Notice, within days of receiving a 2 month s21.
                          The Law should provide some certainty for both LL & T and we all know how good Politicians/Civil Service are at drafting legislation.

                          IMO there is only one date in s21 where the T can vacate without Notice, the s21 expiry date; and LL should be able to rely on that date if it appears T has vacated.

                          Comment


                          • I think thats exactly what the section I have just quoted confirms.

                            And thereafter, if you choose not to accept they are leaving as a result of the section 21 you must insist on a notice to quit or await a court ordering possession (where you will be ordered to apportion anyway)

                            You cannot accept the surrender with none of the above and then still claim it wasn't a result of the section 21.

                            Comment


                            • It's worth noting that guidance is under part 4 where tenant obviously is given notice to end of a period and therefore apportionment would not be applicable.

                              The reference to the notice to quit ending the tenancy on the notice date does not change the fact that it obviously does however, and I think we must all finally agree that If tenant leaves in line with notice then you must surely apportion the rent.

                              We can continue to disagree what happens thereafter but I would much sooner just accept that the tenancy has ended, accept the surrender, apportion and move on.

                              The alternative can only be to wait for expiry of further valid notice or a court date.

                              Comment


                              • Originally posted by Wright76 View Post
                                ... the law seems to recognise that a tenancy CAN end as a result of a section 21 and before a possession hearing.

                                21(4)b........the tenancy could be brought to an end by notice to quit given by the landlord on the same date as the notice under para (a).
                                No, and twice.

                                A s21 notice isn't a NTQ, and a NTQ is, anyway, of no effect in relation to a periodic assured tenancy (s5(1)). The purpose of the provision is to prevent the court granting possession on a date earlier that the end of a tenancy period following two months notice under s21, with the provisio that the date cannot, also, be earlier than the LL could have ended the tenancy by NTQ, had s5(1) not taken away the power of the LL to end the tenancy by NTQ at all.

                                Comment

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