Landlord preventing tenant from moving out

[evlhmr]

We have lived in our rented flat for 3 years. The lease was up on 4 April 2008. On 17 March 2008 we were served with a Section 21 notice stating the landlord required possession of the property after 4 June 2008. We informed the Landlord's Agent that we would be looking for alternative flats immediately and asked them to pass this information on. We were told by the Agent that the Landlord would most likely be pleased if we left sooner as he was wanting to move back into the flat.

We have found a new flat and would like to move on 1 May 2008. We informed the Landlord's Agent of this and were told that we were unable to leave before the 4 June and if we did we would need to pay rent up until that date. As stated, the Landlord had been previously informed of our intention to find alternative flats immediately and he did not say at the time it was inconvenient. However since informing he we have found alternative accommodation and wish to move now he has responded saying it is not convenient for him as he can't move in sooner and he can't afford to have the flat empty for a month. Therefore we have to stay in the flat until that date.

Is this correct? We feel this is vastly unjust as we were not the ones that gave notice. We have now found another flat and are moving out as requested by the Landlord but will we really be liable for the extra month's rent? How on earth are we supposed to find somewhere to live that we can move in exactly on 4 June 2008? It just doesn't work like that! Do we need to cancel moving into our new flat and start searching again?

We are very upset by this and are already out of pocket enough by having to move so there is no way we can pay rent on two places at the same time.

What are our options?

Thanks very much.

[agent46]

I'd bat it right back at them if I were you.

Without Prejudice

Dear Sirs,
Re: [address]

Further to our recent telephone converation.

We were extremely disappointed to be informed that your client will not release us from our tenancy earlier than the 4th June. As you are aware, we have now found somewhere else to live and would like to move out of [address] on [date]. We feel that your client is behaving in an unreasonable manner in holding us to the strict terms of the s.21 notice.

We should be grateful if you would inform your client that if he wishes to be inflexible in the exercising of his legal rights, then regrettably, we will do likewise and insist that he obtains a possession order before we will give up possession of the premises. We will of course continue to pay charges for use and occupation of the property at the same rate as the current rent.

If your client is willing to agree a compromise where the tenancy is surrendered on the [choose a date a bit less than halfway between 4th June and the date you wish to move], then we will not stand on our strict legal rights to remain beyond the 4th June.

This offer will remain open until 4pm on [date]. We look forward to hearing from you in writing/by email at your earliest convenience, but in any event before that date.

Yours faithfully,

[Colincbayley]

If the tenancy agreement is outside of the fixed term, and the LL has served a S.21 notice, then you are free to leave at anytime you wish!
You do not have to wait until the notice expires, nor do you have to pay the rent up until the expiry of the notice.

A S.21 notice is a notice from the LL to the tenant to advise that the LL requires his/her property back by a certain date, not ON a certain date.

[PaulF]

I'd bat it right back at them if I were you.

Without Prejudice

Dear Sirs,
Re: [address]

Further to our recent telephone converation.

We were extremely disappointed to be informed that your client will not release us from our tenancy earlier than the 4th June. As you are aware, we have now found somewhere else to live and would like to move out of [address] on [date]. We feel that your client is behaving in an unreasonable manner in holding us to the strict terms of the s.21 notice.

We should be grateful if you would inform your client that if he wishes to be inflexible in the exercising of his legal rights, then regrettably, we will do likewise and insist that he obtains a possession order before we will give up possession of the premises. We will of course continue to pay charges for use and occupation of the property at the same rate as the current rent.

If your client is willing to agree a compromise where the tenancy is surrendered on the [choose a date a bit less than halfway between 4th June and the date you wish to move], then we will not stand on our strict legal rights to remain beyond the 4th June.

This offer will remain open until 4pm on [date]. We look forward to hearing from you in writing/by email at your earliest convenience, but in any event before that date.

Yours faithfully,

This letter belongs in the WPB as Colin has succinctly put it

[caroline7758]

Another "so called agent"??

[agent46]

If the tenancy agreement is outside of the fixed term, and the LL has served a S.21 notice, then you are free to leave at anytime you wish!

I must admit, I mustn't have read the OP properly - I was doing two things at the same time and I hadn't noticed (no pun intended) that the LL had served notice on the 27th March 2008.

However, playing Devil's Advocate for a moment - give me an argument to counter this.

(1) When a fixed term AST ends other than by the order of the court or by the surrender of the tenant (HA 1988 s.5(1)), then by virtue of HA 1988 s.5(3), it becomes a statutory periodic AST.

(2) This means that the tenant is currently in a statutory periodic tenancy running from the 5th of each month to the 4th of the next.

(3) The procedure for bringing a periodic AST to an end by the tenant is by service of notice to quit (PEA 1977 s.5).

(4) The tenant has not served (it seems) any such notice. Therefore, the statutory periodic tenancy is continuing, and by virtue of s.21(3) will continue until such time as the court makes an order (that section presupposes that statutory periodic tenancies are capable of surviving the service of a s.21(1)(b) notice).

I've just thrown that together in about 5 mins, so there may be a hole or two in the reasoning, but I'd be interested to hear the counter-argument (as opposed to just posting bare propositions without a supporting reasoning process). Reference to case law and statutory provisions would, naturally, be most helpful.

Anyone can join in.

Footnote: It seems the tenant may have a case for claiming the LL is estopped from relying on his strict rights because the agent appears to have stated that the LL "most likely wants the flat sooner etc" and the tenants acted to their detriment on this representation.

EDIT:

This letter belongs in the WPB as Colin has succinctly put it

Is that the best criticism you can level at me after 86 posts? Come on, with that string of impressive sounding letters after your name, I'd thought you might be able to do better than that.

[House]

I'm not sure why Colincbayley believes you can just leave after a sec 21 4a has been served. Until the tenancy comes to an end by either surrender, ntq, or a possession order then you can't just leave.

Agents point about the estoppel is interesting. If the tenant just moved out on the 1st May and argued a surrender I would be interested to see the outcome of er possibly rather expensive legal proceedings!

Just theorising for a moment but could a LL refuse a surrender after his sec 21 4a had expired. (let's say for instance he had a sale agreed few weeks after the 14 day possession order would expire and wanted the tenant to stay! I know it's v hard to predict dates in this example but I am just theorising!)

[evlhmr]

Thanks very much for the responses so far, I really appreciate you taking the time to give me advice.

I understand that we can't just leave at any time, even after being served with a S21 notice - our main problem is with the fact that we informed the landlord (via the agent) that we would be looking for alternative accommodation immediately and therefore would most likely be moving prior to 4 June.

At that time no objection was stated, and like I said the agent gave the impression that the landlord most likely preferred that we left sooner.

If we had been told at the time that it didn't suit the landlord and we needed to stay until 4 June then we wouldn't have even started looking for other flats at such an early date and we wouldn't have arranged to move anywhere until closer to 4 June.

Nothing was in writing but it just seems a little unfair that the landlord can just change his mind like that (as the agent stated he has done). We TOLD him we would probably be leaving earlier and he had no issue with that - then we went ahead and tried to move earlier he has now stopped us from doing so and claims we must pay rent up until 4 June regardless.

Thanks again for your time and your advice, much appreciated.

[agent46]

I'm not sure why Colincbayley believes you can just leave after a sec 21 4a has been served. Until the tenancy comes to an end by either surrender, ntq, or a possession order then you can't just leave.

I don't want to be obtuse, esepcially as you're one of the people on here that doesn't seem to have had his or her nose put out of joint by my arrival but surely it'd be a s.21(1)(b) if it was served 8 days before the end of the fixed term?

[evlhmr]

Don't want to get in the middle of anything...but just to confirm, yes it was a Section 21 (1) (b).

Thanks again

[House]

Yup, teach me not to read the thread properly. Same reasoning though

[House]

I don't want to be obtuse, esepcially as you're one of the people on here that doesn't seem to have had his or her nose put out of joint by my arrival but surely it'd be a s.21(1)(b) if it was served 8 days before the end of the fixed term?

Hehe it was 18 days before the end of the fixed term.

Partial revenge at least

[Ruth Less]

I understand that we can't just leave at any time, even after being served with a S21 notice

But you can! See the posts by Colincbayley and Paul_f above.

[KaPe]

To answer agent46, surely a periodic tenancy wasn't created as the notice was served during the fixed term.

[House]

I'm wondering why if it is a sec 21 1b that was served on March 17 did the LL give notice expiring after 4 June. By 'lease was up on 4th April' I'm presuming that means a fixed term AST. If the Landlord wanted his property back earlier than the 4th June why didn't he just date the notice for say May 18th. Sec 21 1b being just two months notice, it doesn't have to end of last day of period of tenancy that being 21 4a and as pointed out not what was served here

I'm guessing the LL got confused.

I have probably missed something but can't see what at the mo!

the poster could have moved out on the 4th but is now a statutory periodic tenant and as such I am of the opinion, like agent46, that there is therefore no automatic right to just leave without the LL's consent if no notice is given