Sec 21 Can landlord withdraw

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    Sec 21 Can landlord withdraw

    Hi
    I’m still in my AST tenancy period, still has a year to run, however there is a break clause in the agreement. My landlord has issued me a Sec 21 notice. Once the two months have expired it states I should leave after that date do I have to
    A, give any notice can I simply walk into the agents with the keys after that date.
    B, If I find another property can the landlord withdraw the notice, worst case scenario I’m thinking I put a deposit on a property, the week I’m moving out the landlord withdraws the sec 21 and says I have to give two months notice. Leaving me with double rent to pay.
    C, once the two months passes if it takes me a couple or few weeks to find a place does the Sec 21 effectively has an expiry date.
    I know it sounds simple just speak with the Lamdlord/agent but I suspect the Sec 21 has been issued to get me to sign a new agreement and increase the rent. Apparently this agent has done this to others.

    #2
    All 3 of your questions are based on a misunderstanding on the legal effect of a section 21 notice.

    A section 21 notice does not end a tenancy*, it merely allows on its expiry the landlord the right to go to court to apply for an order for possession, which after that get granted and the order is then executed by a County Court bailiffs or High Court Enforcement Officer does a tenancy ends and the tenant evicted.

    So, once you understand that, you can understand why:
    A: You need to serve your own notice if you want to leave,
    B: No, but given the answer to A, is not really relevant,
    C: Tenancy doesn't end of s21 expiry.

    You can mutually agree on a leave date with the landlord which doesn't have to have any relation to the s21 expiry date.

    If you're planning on leaving, serve your own notice. I assume the break clause you referred to let you do that. If it only let the landlord break, then it's actually probably unfair and not enforceable, meaning the notice your landlord given to you is meaningless.

    * A s21 itself doesn't end a tenancy, but the notice given to you may serve a dual purpose of being a break notice and a s21 notice. In that case, the break notice aspect of it would end the fixed term tenancy early. You'll then be on a statutory periodic tenancy if you stay beyond the break notice expiry.
    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.

    I do not answer questions through private messages which should be posted publicly on the forum.

    Comment


      #3
      Thanks for the reply. I understand I will probably need to get advice but at this stage I’m looking at my options. The break clause was added at the last minute. I’m no expert but it looks like it’s been cut and paste off google. So I’m aware I could probably challenge this but in the mean time am I correct in thinking as the landlord has activated the break clause as I can find no mention of this in the agreement. Am I now on a standard periodic tenancy. Do we even have a tenancy agreement now.

      Comment


        #4
        Why don't you post what the break clause in the tenancy agreement say? Is there actually a break clause?

        Originally posted by Ellie39 View Post
        Am I now on a standard periodic tenancy.
        Assuming assured (shorthold) tenancy, IF there's an enforceable break clause, IF notice have been given in accordance with it by the landlord, IF the notice have expired, AND IF you continued to live in the property as your only or principal home when notice expired, THEN you're on a statutory periodic tenancy. Else you're still in your fixed term tenancy.

        Originally posted by Ellie39 View Post
        Do we even have a tenancy agreement now.
        Of course you do.
        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.

        I do not answer questions through private messages which should be posted publicly on the forum.

        Comment


          #5
          So from the below assuming I’m not going to contest the break clause , I’m now on a periodic tenancy as the fixed period has been terminated and after the sec21 date I have to give one months notice but the landlord has to give two ?





          31.1. If at the end of the fixed Term the Tenancy continues as a statutory periodic shorthold tenancy the Landlord and Tenant agree that the Landlord can end the Tenancy by giving the Tenant a minimum of two months’ notice by serving a Section 21 Notice which must expire at the end of a period of the Tenancy being the day before the Rent is due; and the Tenant may end the Tenancy by giving the Landlord a minimum of one period’s notice in writing to be served to the address for service shown at clause 1.1. The notice must expire at the end of a period of the Tenancy being the day before the Rent is due.

          Landlord’s Break Clause

          32.1 The Tenant agrees that the Landlord has the right to terminate the Tenancy after the first 12 months by giving the Tenant not less than 2 months prior notice in writing to end the Agreement to be served by first class post or hand delivery to the Tenant at the address of the Premises. The notice must be served prior to the date upon which it takes effect. Such notice must expire at the end of a relevant period, being the 27th day of the month. When the notice period expires the Agreement shall cease. This does not affect the right of either the Landlord or the Tenant to pursue their legal remedies against the other for any existing breach of any rights under the Agreement.

          Tenant’s Break Clause

          33.1 The Landlord agrees that the Tenant has the right to terminate the Tenancy on or after the first 12 months by giving the Landlord not less than 2 months prior notice in writing to be served by first class post or hand delivery to the address specified in clause 1.1 of the Agreement, to end the Tenancy. The notice must be served prior to the date upon which it takes effect. Such notice must expire at the end of a relevant period, being the 27th day of the month. When the notice period expires, the Agreement shall cease. This does not affect the right of either the Landlord or the Tenant to pursue their legal remedies against the other for any existing breach of any rights under the Agreement.

          Comment


            #6
            This is beginning to look like a homework exercise, as there seem to be lots of special cases involved. Either that or the landlord has been trying to be creative beyond their level of knowledge. There are void clauses. There seems to be a confusion between different types of notice. There is a a clause that looks like it might be considered unfair.

            Comment


              #7
              Thanks , I suspected it wasn’t written properly. We had signed the tenancy agreement as far as we knew everything was ok, it was a very short notice move. We went to the agent to collect keys after signing was told the landlord had signed we actually went in the removal van. When we got there it was supposed to be a three year deal the agent said they had changed the agreement introducing a break clause and either sign or forget it. They new we had no choice, but I suspected it was basically a cut and past clause from google.
              Had the landlord used the break clause I was going to argue it as being unfair the way they changed it, but if it’s that bad I will get advice on whether it’s fair and enforceable.

              Comment


                #8
                What is your desired outcome?
                1. staying in the property.
                2. getting out when the S21 notice expires
                3. getting out later
                4. something else

                Comment


                  #9
                  I would like to leave , but this is dependent upon me finding another suitable property, this means I have to find a deposit pay checkout fees and probably any other deductions the landlord can think of. And moving costs. EST around £3k
                  Problem is there is very little to rent in the area I’m in. If a suitable property comes up I will need to sign up ASAP or loose it landlords in my area simply won’t wait one or two months.
                  As I say I would like to move but the reality is unless the landlord is very flexible about notice period accepting a week of two I’m going to have to stay and fight this.

                  Comment


                    #10
                    Originally posted by Ellie39 View Post
                    I would like to leave , but this is dependent upon me finding another suitable property,
                    As stated above, once a break clause has been properly invoked by the LL and the notice period has expired, you are on a SPT.
                    You then need to give at least one month's notice to quit, ending on the last (or first) day of a rental period (that is the period for which rent is due, which is not necessarily related to the rent-payment date), OR get the agreement of the LL to end the tenancy earlier (i.e. LL agrees to accept your notice to quit that ends on a different day).
                    The tenancy ends when your notice expires (either at the end of the last day of a rental period, or at the end of the agreed day).
                    You are then required to pay the rent until the tenancy ends.

                    Originally posted by Ellie39 View Post
                    this means I have to ... pay ... probably any other deductions the landlord can think of.
                    If you disagree that deduction are reasonable, then challenge them through the deposit scheme.

                    Originally posted by Ellie39 View Post
                    If a suitable property comes up I will need to sign up ASAP or loose it
                    For which you are likely going to have to pay rent for two properties at the same time.


                    If you want to stay, then your only option is to show that the the break clause was not properly invoked by the LL.
                    Options appear to be:
                    1. not served correctly;
                    2. end date not 27th of the month;
                    3. less than 2 months notice given;
                    4. argue that S21 notice does not invoke the break clause (not sure of chances of success with this one).

                    Comment


                      #11
                      Hi
                      Update and a question
                      I found a property and as suspected couldn’t quiet get out in time. The landlords sec 21 said I had to leave after 2 months the 27th Aug, The rent being due each 28th first day of the tenancy each month.
                      Asked if I could leave two weeks later obviously pay until then when the new property was available and was rudely told to get out on the 27th or else I would be sued, and liable for the costs.
                      The tenancy becomes periodic When the notice expires mid the 27th Aug. Im going to give a months notice so I have written my notice one month from then so I leave the property on the 27th sept. Before next months oct is due.
                      Am I correct to give one months notice bearing in mind the break clause above. I’m effectively giving a months notice to coincide with the first month we revert to periodic, in the first day the Sec 21 expires. Or can it be argued I should give two.
                      Also the Break clause above says I should give one Periods notice, is a period a month.
                      Tia

                      Comment


                        #12
                        You can't legally give valid notice the first day of a statutory periodic tenancy, i.e. 28th August. By 29th August, the earliest valid notice you can give would be ending the SPT on 27th October.

                        Your landlord may not know or care.

                        Are the s21 notice even valid? Double check. If not, their threat is meaningless.
                        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.

                        I do not answer questions through private messages which should be posted publicly on the forum.

                        Comment


                          #13
                          So I’m stuck , can’t move out for two months , can give one months notice and hope he doesn't now , but the landlords going to start legal action against me as they have told me they have an insurance even if he won’t accept a moving out date before the two months notice expires.
                          Any suggestions
                          The obvious answer negotiate with landlord , however I suspect he is getting off on this.

                          Comment


                            #14
                            The landlord can't "sue you" if you don't leave on the 27th.
                            They have nothing to sue you for.

                            They can start legal action to repossess their property and they may have insurance that will pay for that.
                            If they do do that, it will take weeks/months for the issue to come to court, by which time it will be academic, because you will have returned the property to the owner before the hearing commences.
                            The cost of the case to that point is £308 (I think it's still that) and you would probably owe the landlord that if he wanted to collect it (as it's an unexpected loss).

                            While the advice being given is correct, I think that I would either give a month's notice on the 28th and move out after a fortnight, making sure to return the keys and confirm that you have ended the tenancy in writing.

                            While none of that will actually bring the tenancy to an end, it forces the landlord to make a decision.
                            He's asked you to move out and you have done.

                            Technically, you will owe rent on the property until the landlord takes control of it - which they're pretty much bound to do.

                            As a precaution, I'd pay for a royal mail divert for any mail addressed to you to the current property address.
                            If the landlord sues you for anything, you'll want to know about it (because you can lose by default if you don't know what's happening).

                            This is what I would do, but it isn't good advice and does put you at risk of being sued for rent you should have paid.
                            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


                              #15
                              Note that what it says in the tenancy about notice periods during an SPT can be ignored, as the legislation that creates SPTs says that the wording in the legislation overrides anything in the tenancy agreement.

                              I think most landlords issuing section 21 would accept a surrender rather than requiring notice ending at the end of a rental period. Generally if they issue section 21 without informally trying to negotiate a surrender first, they want the tenant out sooner, rather than later.

                              Comment

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