Section 21 at end of fixed term AST

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    Section 21 at end of fixed term AST

    Hi all,

    I am currently resident in a flat with a 12 month fixed term AST ending 23 January 2020. Rent paid monthly in advance.

    Due to personal circumstances I would like to let the contract roll over and become a statutory periodic tenancy for flexibility. I understand it will do this automatically.

    My question is around Section 21 notices and when I could possibly receive one and what the possible possession dates on them could be.

    I understand that if one is issued during the fixed term then it's a specific kind and the mininum notice is 2 months from it being served. So, hypothetically speaking if one was served on 1 January 2020 then possession could be taken on 1 March 2020?

    However, this seems to contradict the fact that a periodic tenancy would've commenced on 24 January 2020 and therefore surely the landlord has to give two rental periods notice to take possession at least? So, if served on 1 January 2020 these two rental periods would go up until 24 March 2020? Or is it still just the straight two months to 1 March 2020? If the latter, how does it work with paying rent, would I just pay pro rata for the last payment?

    I understand that if served after 24 January 2020 it must give at least 2 rental periods notice ie. if served on 25 January 2020 it would be the Section 21 notice specific to rolling tenancies and the earliest possession could be taken would be 24 April 2020?

    I guess it's just the crossover period I'm unclear on.

    Thanks for any words of advice or help. Happy to clarify any details.

    #2
    In your case, the required notice period is "at least two months" whether it's served during the fixed term or after.

    Expiry of a s21 notice does not mean the end of the tenancy. If the landlord wishes to evict, then they would have to apply to court for an order for possession, and then have that order executed by a county court bailiff or High Court enforcement officer. The median time for that to take place at last look was about 17 weeks nationally. If you force your landlord to go to court though, you could be made liable for their cost of doing so, and of course you can forget about a non-negative reference for a future a landlord.

    If "as a result of the service of a notice under section 21 the tenancy is brought to an end before the end of a period of the tenancy", then the landlord is required to pro rata refund of prepaid rent. Whether that works in practice due to the ambiguous wording of the legisation in question is debatable.
    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
      Suggest you write to your agent ( or landlord - actual owner of house / flat ) and state that you will be staying after the fixed term, and look forward to remaining until further notice, and understand that they need to know if you are staying or leaving.
      Further state that as the fixed term proceeds to a statutory periodic tenancy, there will be no need to issue another A.S.T.

      Last sentence is vital, as agents sometimes try to force a new tenancy agreement, so they can charge everyone MORE money for a new A.S.T. that is not required.
      All the same terms of the original A.S.T. remain, except notice to quit is down to one month.

      Comment


        #4
        Originally posted by dam0999 View Post
        I understand that if one is issued during the fixed term then it's a specific kind and the mininum notice is 2 months from it being served. So, hypothetically speaking if one was served on 1 January 2020 then possession could be taken on 1 March 2020?

        However, this seems to contradict the fact that a periodic tenancy would've commenced on 24 January 2020 and therefore surely the landlord has to give two rental periods notice to take possession at least? So, if served on 1 January 2020 these two rental periods would go up until 24 March 2020? Or is it still just the straight two months to 1 March 2020? If the latter, how does it work with paying rent, would I just pay pro rata for the last payment?
        It's a mininum of two months, not two rental periods.
        So notice served on 1 January would could expire on 1st March.

        As noted above, the notice doesn't actually grant possession, it allows a landlord to ask a court to do that.
        The only way a periodic tenancy can be ended is with a court order, you giving valid notice or you agreeing to surrender the tenancy with the landlord.

        Most tenancy agreements don't cover the situation with the tenancy ending part way through a rental period, so what happens is normally a matter of agreement between the landlord and tenant.
        If you read the tenancy agreements most of them require that rent is paid in advance and there's no mechanism for a refund, even if the tenancy ends early.

        If the landlord goes to court and is awarded possession based on their s21 notices, there is a legally binding formula for the return of any rent paid in advance (which is impossible to use in real life).
        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


          #5
          Originally posted by jpkeates View Post
          If the landlord goes to court and is awarded possession based on their s21 notices, there is a legally binding formula for the return of any rent paid in advance (which is impossible to use in real life).
          Does that formula not apply also if LL and T agree an end date part way through a rental period?

          Comment


            #6
            You can use it, but it's not obligatory.
            The legislation is very specific about when the formula must be applied (and it is impossible to use in real life).
            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


              #7
              Very specific, and I disagree with your interpretation of it.

              as a result of the service of a notice under section 21 the tenancy is brought to an end before the end of a period of the tenancy
              A mutual surrender, or even a tenant notice to quit which was only served as a result of landlord's s21 notice, I would argue the tenancy was bought to an end as a result of the s21 that was given.
              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


                #8
                Something isn't a result of something just because it happens afterwards.
                Your interpretation would mean that the landlord's obligation to refund rent depended on their knowledge of the tenant's state of mind when they (for example) served notice.

                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


                  #9
                  LL can't have it both ways. When a LL want a T out, they serve a s21 notice. If the T don't leave, they get taken to court and have to pay LL's cost for having to do so. But if the T leave without forcing the LL to go to court, after having received the s21 notice, it's not because of the s21?

                  Of course there's a possibility that the T may well have given notice without the s21. But if the T leave within/about 2 months after the s21, it's almost certainly going to be because of the LL's s21.

                  Could that section had been worded better. Of course, but doesn't mean the courts is not going to interpret it to give effect to the intention of parliament at least minimally.
                  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


                    #10
                    The legislation is more than badly written, it's impossible.

                    The refund calculation doesn't depend on the end date of the tenancy, the repayment is based on "the number of whole days of the final period for which the tenant was not in occupation of the dwelling-house".

                    So a) if the tenant moves out before the tenancy ends, they don't have to pay rent to the end of their tenancy (which is odd, not least because the payment of rent is one of the things that makes it a tenancy in the first place).

                    And, b) as the court is obliged to order the repayment of the rent when it makes a repossession order it must somehow divine on which date the tenant will leave, at a point when it can't possibly know it. It can't even be sure which will be the "final period", given it has no control over bailiffs timetables.

                    And so the court "must" do something that it can't possibly do. I haven't been to a possession hearing for some time, so I'd love to know how they're handling this obligation, which must arise in pretty much every instance.

                    The legislation also considers the possibility that a landlord may have repaid rent to a tenant (using a calculation based on the tenant having moved out) before a repossession hearing takes place.


                    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


                      #11
                      KTC,

                      Hi thanks for your reply.
                      https://www.gov.uk/evicting-tenants/...tion-8-notices
                      How much notice you need to give


                      A Section 21 notice must always give your tenants at least 2 months’ notice to leave your property.

                      If it’s a periodic tenancy, you must also let your tenants stay for any additional time covered by their final rent payment.


                      This would seem to suggest that it would go on until the end of the rental period after 2 months assuming periodic. Unless I am reading it wrong.

                      Comment


                        #12
                        ram,

                        Thanks for your reply. Yes this is exactly what I have done and have received no reply so I am just trying to work out what the worst case scenario is.

                        Comment


                          #13
                          jpkeates,

                          Hi thanks for reply. Please see my post above with the Gov website. Am I understanding this wrong?

                          Comment


                            #14
                            Originally posted by dam0999 View Post
                            This would seem to suggest that it would go on until the end of the rental period after 2 months assuming periodic. Unless I am reading it wrong.
                            You're not reading what it says wrong. It's just that what's written on there is wrong, or at best misleading.

                            A section 21 notice does not end a tenancy, and the landlord cannot (ignoring non relevant exceptions here) legally remove a residential occupying tenant other than by going to court and then bailiffs/HCEOs. As such, any "must allow the tenant to stay" is meaningless since they have that right anyway from the existing and ongoing tenancy.

                            If we're purely talking about how quickly can a landlord goes to court, i.e. when's the earliest a s21 notice can expire, the answer for any occupation that started with a fixed term AST which would be followed by a statutory periodic tenancy is "not less than two months" from s21(1) of the Housing Act 1988, and Spencer v Taylor (2013) which states that notice can be served under ss(1) during SPT.
                            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


                              #15
                              Hi, ok thanks, that is useful to know. I'm not really interested in going to court, so would probably just leave if it came to it but hopefully it won't happen.

                              Thanks.

                              Comment

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