S21 notice - new or old Form 6a? And when to serve?

[zcacogp]

Hi,

There is much advice around about serving notice on tenant but I'd like to see whether my understanding is correct. Situation is thus;

- Flat was let to tenants on 1st July 2018 on a 6-month AST. Gas Safety Certificate and EPC and Guide to Rent were all served at time of contract signing. No deposit was taken.
- Tenants have been unhappy in the flat for a number of reasons. They have served notice on me (agent) and on landlord in writing by post saying they will be moving out on the last day of the contract (31st December) but not signed the letters. I am therefore assuming they are invalid and have written to them asking whether they wish to send more copies which are signed.
- I'd like clarity in the situation and the landlord want to move the tenants on as they haven't been great. I'll therefore serve notice on them to make sure that things are clear.
- Government guide gives me form 6a, but the guidelines confuse me. They say that the form cannot be used in the first four months of the tenancy (here: https://assets.publishing.service.go...m_6A_FINAL.PDF , at the top of the box on the first page). If I wish to serve two month's notice to end a six month tenancy then surely such a form has to be served in the first four months of the tenancy?
- Additionally, there are guides on the Landlord Zone website. They are here:

https://www.landlordzone.co.uk/infor...n-21-notices-2

... and here:

https://www.landlordzone.co.uk/infor...ction-21-rules

The first page re-states the limitation that the notice cannot be served within the first four months of a tenancy (half-way down, "Unlike the old s21 notices, the new one cannot be served within the 1st four months of an assured shorthold tenancy.")

The second one has the following statement; "For 6 month tenancies it will not be possible to end the tenancy at the end of the term, but most likely it will be a few days into the next rent period. Because of this anomaly the legislation says that landlords must repay the over-payment of any rent." This seems to address the situation that I am in, and I will need to serve notice to end on the 2nd or 3rd Jan 2019. Is this correct? The reason I hesitate is that it seems odd that the landlord cannot end a tenancy at the end point of the fixed term.

(An aside, but I have checked the AST and the tenant is obliged "to give at least two months notice to quit expiring at the end of a period" but there is no such a requirement for the landlord to give notice expiring at the end of a period.)

Thanks for your help.


Oli.

[jpkeates]

There's no need for the tenant's notice to be signed to be valid*.
However, they can't serve notice in the fixed term anyway, so they can't be valid, even if they supply new versions.

They don't have to serve notice at all to leave on or before the date of the fixed term, as the tenancy will end automatically and a new periodic tenancy won't arise.

You are only as confused as everyone else about the four months and six month term thing. Essentially you serve notice on the first day you can to expire one day after the end of the fixed term, which isn't satisfactory (you might have to allow an additional 2 working days if you post the notice).

The terms relating to the tenant's notice in the tenancy agreement are redundant, they can't serve notice in the fixed term and in a periodic tenancy they're set by law.

*If the tenants have put their names at the bottom of the letter (even printed) they've technically signed the letter.

[KTC]

A landlord cannot end an assured tenancy and have the tenant leave without the agreement of the tenant, except through an order of the court for possession, and the execution of the order. Whether a section 21 notice expire on fixed term last date or some time later doesn't really make any difference since the tenant don't have to leave on that date. The landlord would have to apply for a possession order, then a warrant for possession, then bailiffs to actually evict.

Tenants have been unhappy in the flat for a number of reasons. They have served notice on me (agent) and on landlord in writing by post saying they will be moving out on the last day of the contract (31st December) but not signed the letters. I am therefore assuming they are invalid and have written to them asking whether they wish to send more copies which are signed.

...

(An aside, but I have checked the AST and the tenant is obliged "to give at least two months notice to quit expiring at the end of a period" but there is no such a requirement for the landlord to give notice expiring at the end of a period.)

It's not invalid so much as legally meaningless. A tenant is free to leave by the end of the fixed term without notice. The fixed term tenancy will end when it ends, and no statutory periodic tenancy will arise. If they remains beyond the end of the fixed term, then a statutory periodic tenancy will arise whether the landlord have served any section 21 (or 8) notice or not.

For the statutory periodic tenancy, the notice clause doesn't get carried over from the fixed term so long as the tenancy remains assured per s5(3)(e) of the Housing Act 1988. So regardless of what you may have intended, the tenant's notice during such a time would be a common law notice to quit of at least a period and at least 4 week whichever is longer, ending on a period.

If you wish to issue a section 21, 4 months must have passed from the start of the very first AST the tenant have had, the notice period is at least two months from deemed service, and the notice must be on Form 6A.

[MdeB]

The issue of LL not being able to serve S21 notice that expires at end of fixed 6-month term was raised during House of Lords debate on the bill, and the Minister assured the Lords that LLs would be able to serve such a notice (i.e. he lied).