Section 21 notice when tenant pays 12 months in advance

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    Section 21 notice when tenant pays 12 months in advance

    Due to bankruptcy issues, our tenants offered to pay 12 months in advance, as they knew that bank references would reveal a problem. The have renewed for the past 4 years on the same basis. We now need to obtain possession at the end of the current tenancy as we want to sell the property. I assume that a Section 21 Notice is appropriate with at least 2 months notice. However, the notes accompanying the Form 6A indicate that, if a tenant pays quarterly, the appropriate notice is 3 months. There is no reference however to the tenant paying 12 months in advance. The form of TA that the tenants signed was for monthly payments with a special clause for the payment 12 months in advance. In the above circumstances, am I right to assume that a minimum notice of 2 months with Form 6A is fine? (Please note that to give the tenants as much advance notice as possible, we have already given an informal notice of almost 5 months).
    Comments would be appreciated.

    #2
    Could you confirm what the "special clause" says.

    The payment of rent determines the tenancy periods in any periodic tenancy that arises when a fixed term ends (which is a necessity for a s21 notice).
    If the rent paid was 12 months, the period would be 12 months, so any s21 notice may need six months.
    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


      #3
      The special clause reads: “Notwithstanding the Principal Terms, the Tenant agrees to pay the sum of £30,000 (thirty thousand pound) in respect of the first of June two thousand and nineteen to the thirty first of May two thousand and twenty on or before the tenth of May two thousand and nineteen.”
      The Principal Terms refer to rent of £2500 payable monthly.

      Comment


        #4
        I think (and I am not a solicitor, so this is my personal opinion) that the notice needs to be six months, because I think that the period of any periodic tenancy would be 12 months.
        It's not clear that the payment is for 12 individual instances of the monthly rent.

        Of course, that only matters if the tenant doesn't want to comply with the s21 notice.
        That might be a choice imposed on them if they seek help from a local authority.
        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
          I think it is clear that the rent is for 12 individual instances of monthly rent; the special clause just confirms that all 12 are to be paid in advance. The tenants do not have a periodic tenancy; they have signed a 12 months tenancy agreement.
          However, from your comments, it would appear advisable to give the Section 21 notice now, rather than just over 2 months ahead of 31.5.20. The notice would still be for 31.5.20. Do you agree?

          Comment


            #6
            Doesn't matter what you "think", but what any judge would decide if this gets to court (eg illegal eviction, a criminal offence landlords can & have gone to jail for..)

            Notice should expire ..."...after 31st May 2020...."

            Interestingly Msssrs Shelter, the experts in these matters state at
            https://england.shelter.org.uk/legal...n_21_notices#2
            Where the contractual period of the tenancy is longer than two months, the section 21 notice period must be for at least a full period of the tenancy, ie it may specify any date on or after the earliest day a notice to quit could take effect. For example if the contractual period is quarterly or six monthly the length of the notice must be a full period of the tenancy (or six months in the case of yearly tenancies).[6]
            (6) Being
            s.21(4)(b) Housing Act 1988; Parker d.Walker v Constable (1769) 3 Wils. K.B. 25.

            As so often, another example of why contracts should be kept simple & uncomplicated where possible.

            Ah, the old case from 1769 rears it's head again.

            Yes I know nobody has mentioned CPT
            I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

            Comment


              #7
              Originally posted by M Clavell View Post
              I think it is clear that the rent is for 12 individual instances of monthly rent; the special clause just confirms that all 12 are to be paid in advance.
              That may be what was intended, but that isn't what that clause says.
              The clause first of all sets the Principle Term aside and then has a sum covering a period of a year with a separate due date.
              Where do you think that there is anything that says that the payment is for 12 months worth of rent?

              However, from your comments, it would appear advisable to give the Section 21 notice now, rather than just over 2 months ahead of 31.5.20. The notice would still be for 31.5.20. Do you agree?
              If you think I'm wrong about the s21 notice (and that it needs to be only two months notice) the notice will time out six months after it's served, so it might be better to wait.
              If the notice is for six months it times out four months after the expiry date.

              You'd be better off talking to the tenant and letting them know what you're planning and being as flexible as possible with them actually serving notice when they find somewhere else.
              You can help them by returning any deposit you have in your possession before they move out so they can use it for a new property.



              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


                #8
                A number of the responses so far appear to assume that there is a periodic tenancy in place. How can this be the case when (a) each year the tenants have signed a new AST for 12 months and (b) there is a fixed term and fixed end date each time (which is not the case wit periodic tenancies)?

                Comment


                  #9
                  Because you were asking about section 21, and section 21 notices can only expire during a periodic tenancy.

                  Comment


                    #10
                    Originally posted by M Clavell View Post
                    A number of the responses so far appear to assume that there is a periodic tenancy in place. How can this be the case when (a) each year the tenants have signed a new AST for 12 months and (b) there is a fixed term and fixed end date each time (which is not the case wit periodic tenancies)?
                    Fair point, although, to be fair, that wasn't clear in the initial post.

                    And, possibly because the questions on the forum lead us to expect tenants not to move out when the notice expires!


                    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
                      Originally posted by leaseholder64 View Post
                      Because you were asking about section 21, and section 21 notices can only expire during a periodic tenancy.
                      They can expire on the last day of the fixed term.

                      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


                        #12
                        Have everyone here forgot about Taylor v Spencer? Whether the tenancy is currently a fixed term or it's statutory periodic (so I'm assuming here it's not contractual periodic), then the s21 notice can be under s21(1) which is merely "not less than two months".
                        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
                          Originally posted by M Clavell View Post
                          the Tenant agrees to pay the sum of £30,000
                          Bloody hell - where'd they get £30k from? I thought they were supposed to be bankrupt! I'd be hard pushed to raise a tenth of that

                          Sorry, rant over.

                          Comment


                            #14
                            Originally posted by jpkeates View Post
                            They can expire on the last day of the fixed term.
                            Not strictly true.

                            They can expire at midnight at the end of the last day of the fixed term (the "after" date cannot be earlier than the last day of the fixed term).

                            Comment


                              #15
                              Originally posted by MdeB View Post
                              Not strictly true.

                              They can expire at midnight at the end of the last day of the fixed term (the "after" date cannot be earlier than the last day of the fixed term).
                              While I appreciate that the legal midnight is a busy old time with a lot happening in a single instant, if the fixed term ends on 31st May 2020 a s21 notice can expire after 31st May.
                              Which I'm sure is also a legal instant before the SPT arises.

                              But KTC is also right, so it's academic provided notice is given in the fixed term.


                              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

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