Section 21 notice date outside fixed term when rent day has informally changed

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    Section 21 notice date outside fixed term when rent day has informally changed

    My tenant was persistently late with her rent as (she said) the rent day and her wages day did not line up, so I informally allowed her to start paying her rent a few days later to make it easier for her. At the time we changed the date, she paid a balancing payment to make up the difference for the few days in-between, and we have texts confirming the date change, but the rental contract still has the original date on it. She is still persistently late pretty much every month, and as we now also want to sell the flat, I am looking to evict her. There are no arrears - she's just a few days late each month and it takes a lot of pestering to get her to pay, but she always pays up in the end. So I am looking to use section 21 under the grounds we want to sell the flat.

    What I want to know is, now that we are outside the fixed term, but have changed the rent day (informally but with written confirmation), what constitutes the rental period for the purpose of a notice date? The date on the tenancy agreement or the new informal date?


    The rent due day and the tenancy periods are different things.
    But your s21 doesn't have to end on a tenancy end date, so it's probably easier to end it when the rent is due to be paid (as long as it's more than two month away) so there's no issue about part payment.

    As your notice doesn't end the tenancy, it might be more useful to tell the tenant you plan to sell and that you will serve them notice soon, but that gives them time to look for and find somewhere else.
    The problem with serving s21 notice is that the tenant only has 2 months to find somewhere or they're faced with trying to defend the notice rather than being homeless.

    If you talk to the tenant, you can probably agree that they need to be out in three or four month's time and you'll serve notice in a couple of months, but the tenant then has time to find somewhere, get approved and move in.
    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).


      I'm sorry JP, I'm not sure I understand?

      I'm following the section 21 guidance from Open Rent (who provide my tenancy agreements) here which states "If you are serving notice on a day after the tenancy’s fixed term has expired, then it’s important to remember that the notice will always expire on the final day of a rental period, once two full rental periods have expired.". What is the rental period if it isn't the months rent?

      We want the tenant to leave two months after we give her notice as we want the property vacant before we put it on the market, so there's nothing to be gained by not issuing a section 21 is there? As otherwise she may not leave and then we'd have to issue the notice anyway. Our relationship with her is pretty strained and she's pretty uncommunicative so I wouldn't want to risk not having the paperwork in place.


        That guidance is incorrect if the original tenancy was for a fixed period.

        I think it was once true.


          The original AST was for a fixed 6 month period but has now lapsed into a periodic tenancy. So I can now just give notice on whatever day I wish?


            Originally posted by Flipjango View Post
            I'm following the section 21 guidance from Open Rent ....
            * Look at article date *

            "May 2018"

            Not been the case since November 2013*.

            Originally posted by Flipjango View Post
            The original AST was for a fixed 6 month period but has now lapsed into a periodic tenancy. So I can now just give notice on whatever day I wish?
            Yes. At least 2 months, on Form 6A if in England.

            * Theoretically before that as well, but that's the date of the Court of Appeal's judgment.
            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.


              Thank you, that's very helpful. I'll let her know we wish her to leave and just issue for 6A with 2 months notice. Is there anything else I need to watch out for? She's had the EPC and GSC, and the deposit is protected and has had how to rent guide. Its not an HMO and no improvement notices served or requirement to register in the borough. Thanks.


                If it is a statutory periodic tenancy, then the S21 end date can be on any day and at least 2 months after service; if it is a contractual periodic, then it (probably) has to be the last day of a tenancy period, and may be more than 2 months if the contract says so.
                (I write "probably" because I don't know if a contractual provision can change this; my guess is "not"0.

                it is because of the complications that can arise by changing the rent due date (and particularly as in this case trying to change the dates for a rental period), that I believe that the best approach in such cases is simply to agree that the rent will not be considered late if it is received by X days after the due date, but interest will accrue from the due date if it is paid late under the new agreement.


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