Does service of S21 notice remove need for T's N to Q?

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  • Does service of S21 notice remove need for T's N to Q?

    Since the service of a S.21 notice does not bring an AST to an end, what is the justification for the often asserted proposition that if a landlord serves a S. 21 notice and the tenancy has become periodic the tenant need not serve notice to quit to bring the tenancy to an end?

  • #2
    The tenant can leave at anytime without any further liability to rent once a S.21 has been served and it is periodic or the fixed term has ended. They don't have to stay the length of your Notice which landlords often think is the case so that probably answers your question.
    The advice I give should not be construed as a definitive answer, and is without prejudice or liability. You are advised to consult a specialist solicitor or other person of equal legal standing.

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    • #3
      Originally posted by Paul_f View Post
      The tenant can leave at anytime without any further liability to rent once a S.21 has been served and it is periodic or the fixed term has ended. They don't have to stay the length of your Notice which landlords often think is the case so I think that answers your question.

      No it does not!

      You really should stop repeating this nonsense as it is utterly irresponsible.

      Legal argument (which Paul F didn't have an answer to) on this point, is contained in this thread here: http://www.landlordzone.co.uk/forums...ad.php?t=10959
      Last edited by agent46; 15-07-2008, 19:06 PM. Reason: Realised that OP was not in search of advice after all....
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      • #4
        But what is the basis for Paul F's view?

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        • #5
          Originally posted by Lawcruncher View Post
          But what is the basis for that view?
          I think you know the answer

          But have a read of this thread here anyway: http://www.landlordzone.co.uk/forums...ad.php?t=10959
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          I try my best to be accurate, but please bear in mind that some posts are written in a matter of seconds and often cannot be edited later on.

          All information contained in my posts is given without any assumption of responsibility on my part. This means that if you rely on my advice but it turns out to be wrong and you suffer losses (of any kind) as a result, then you cannot sue me.

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          • #6
            Originally posted by Lawcruncher View Post
            But what is the basis for Paul F's view?
            I'm not sure. If you read the other thread you will see that I asked him to back up his arguments, but (as usual) he stayed well clear.
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            I try my best to be accurate, but please bear in mind that some posts are written in a matter of seconds and often cannot be edited later on.

            All information contained in my posts is given without any assumption of responsibility on my part. This means that if you rely on my advice but it turns out to be wrong and you suffer losses (of any kind) as a result, then you cannot sue me.

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            • #7
              Had a quick look at the thread. Perhaps you can clarify one point. I think you said that the tenant can leave at any time after the S 21 notice expires. If you did, why is it that the tenant can leave after, but not before, the expiration of the notice?

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              • #8
                At a guess it's because the landlord has stated he wants possession after the notice expires not before otherwise he might have served it earlier.

                Do you have any case law in this regard agent or jeffrey?

                Is there a difference for instance in the tenant leaving the day after the notice and say 3 years after the notice!
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                • #9
                  Originally posted by Lawcruncher View Post
                  Had a quick look at the thread. Perhaps you can clarify one point. I think you said that the tenant can leave at any time after the S 21 notice expires. If you did, why is it that the tenant can leave after, but not before, the expiration of the notice?
                  I can't recall off the top of my head, but I imagine that my reasoning was as follows: the s.21 notice, in that it states "the LL requires possession after [date]" amounts to an offer to surrender after the date of expiry and the tenant, in giving up possession accepts that offer. Further or alternatively, the LL is estopped from holding the tenant to a further period of possession as this would be contrary to his expressed desire to possess the property after the date of expiry of the notice.
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                  I try my best to be accurate, but please bear in mind that some posts are written in a matter of seconds and often cannot be edited later on.

                  All information contained in my posts is given without any assumption of responsibility on my part. This means that if you rely on my advice but it turns out to be wrong and you suffer losses (of any kind) as a result, then you cannot sue me.

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                  • #10
                    Originally posted by House View Post

                    Is there a difference for instance in the tenant leaving the day after the notice and say 3 years after the notice!
                    That's a good point.

                    Thinking "out loud", off the top of my head here and counter-arguments are welcomed.......I think that if the tenant leaves on the date of expiry of the s.21 notice they should be OK, but if T remains in possession, then as the tenancy has still not ended in the proper fashion (ie: by order of the court), and they have not accepted the LL's offer to surrender, another SPAST may arise and, if so, T would need to serve a NTQ. Alternatively, T could argue that the words "the LL requires possession after [date]" amounts to an open-ended offer to surrender at any time after the date of expiry, which he accepts by returning the keys at a time of his choosing. The LL could, of course, counter-argue that T, by remaining in possession after the date of expiry, has, in effect, made a counter-offer which extinguishes the LL's offer to surrender and T is therefore himself estopped from leaving without serving NTQ.

                    I am by no means 100% confident about the above arguments, but I cannot see any holes in my arguments in the other linked thread concerning T leaving before expiry of the s.21 notice. As always however, I'm happy to be proved wrong by reasoned arguments....
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                    I try my best to be accurate, but please bear in mind that some posts are written in a matter of seconds and often cannot be edited later on.

                    All information contained in my posts is given without any assumption of responsibility on my part. This means that if you rely on my advice but it turns out to be wrong and you suffer losses (of any kind) as a result, then you cannot sue me.

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                    • #11
                      Originally posted by agent46 View Post
                      .The LL could, of course, counter-argue that T, by remaining in possession after the date of expiry, has, in effect, made a counter-offer which extinguishes the LL's offer to surrender and T is therefore himself estopped from leaving without serving NTQ.
                      If the S21 wasn't an open ended offer for T to surrender after the date of expiry then how would a T who missed the deadline know if L wanted him to go or not?

                      Given L is then free to apply yo court to enforce the S21 then I think T would be right to count on the invitation for him to leave to be still open. Otherwise would be fun for T to turn up at the S21 hearing and say I didn't leave on time so I thought the invitation I could go didn't apply anymore - surely T would be laughed out of court. Or is T supposed to be a mind reader of if the invitation to leave is still open or not?
                      ~~~~~

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                      • #12
                        Originally posted by Ruth Less View Post
                        If the S21 wasn't an open ended offer for T to surrender after the date of expiry then how would a T who missed the deadline know if L wanted him to go or not?

                        Given L is then free to apply yo court to enforce the S21 then I think T would be right to count on the invitation for him to leave to be still open. Otherwise would be fun for T to turn up at the S21 hearing and say I didn't leave on time so I thought the invitation I could go didn't apply anymore - surely T would be laughed out of court. Or is T supposed to be a mind reader of if the invitation to leave is still open or not?
                        Those are good points. As I hope I conveyed in my previous posts, arguments could be put for or against by either L or T.

                        TBH, I think that even though a SPAST would/might arise if T remains in possession after the date of expiry, the s.21 notice (being worded "requires possession after [date]") would operate as an open-ended offer to surrender, and/or the LL would be estopped* from holding T to further possession (and its attendant obligations) after the date of expiry. I should qualify that statement by saying that it does not give T the right to remain in possession for free, merely the right to surrender.

                        That argument, is, however based on nothing more than what "feels" right.

                        * Promissory estoppel is, simply put, the situation that arises where one party to a contract makes representations that are inconsistent with the terms of the contract and the other party acts to their detriment on the basis of those representations. In such circumstances, the party making the representations is "estopped" (barred by their conscience) from holding the other party to those strict terms of the contract that are inconsistent with the representation. In most cases, promissory estoppel is not a free-standing right as such, it is merely a defence that can be used if the party making the representation goes back on their word and attempts to enforce the terms of the contract (it is said that "estoppel is a shield and not a sword").
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                        I try my best to be accurate, but please bear in mind that some posts are written in a matter of seconds and often cannot be edited later on.

                        All information contained in my posts is given without any assumption of responsibility on my part. This means that if you rely on my advice but it turns out to be wrong and you suffer losses (of any kind) as a result, then you cannot sue me.

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                        • #13
                          Not sure if this comes into it but at any time after the notice has expired the landlord can have the court issue his claim for possession the costs of which the tenant would most likely be liable for, I think.

                          Maybe just adds to the feeling right arguement
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                          • #14
                            As to a S 21 notice being construed as an offer to accept a surrender, I think there is a danger in imputing to a statutory notice an intention that cannot be justified on a reading of the statute or goes beyond the plain words of the notice itself. The service of a Section 21 notice is no more than a prerequisite to obtaining possession under Section 21. The notice itself has no effect if not followed up. There is no time limit on following up the notice.

                            The idea of an estoppel is I think more attractive. It ought to be the case that a tenant can take a landlord at his word and give him possession as requested in the notice.

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                            • #15
                              Originally posted by Lawcruncher View Post
                              As to a S 21 notice being construed as an offer to accept a surrender, I think there is a danger in imputing to a statutory notice an intention that cannot be justified on a reading of the statute or goes beyond the plain words of the notice itself. The service of a Section 21 notice is no more than a prerequisite to obtaining possession under Section 21. The notice itself has no effect if not followed up. There is no time limit on following up the notice. .
                              That is all true, but s.21 notices have been held to operate as a break clause notice, which also goes beyond the strict function of the s.21 mechanism.

                              Nonetheless, leaving aside the point that s.21 notices are a statutory hoop through which a LL must jump, if the LL issued a notice in the same terms (ie: he simply wrote a letter in terms, "Dear Tenant, please note that I want possession of the property after [date]") but did not express it to be a s.21 notice, would this amount to an offer to surrender? I think it would.

                              You see what happens when Parliament simply plonks another layer on top of the alluvial soil of a thousand years of property law!!!

                              Originally posted by Lawcruncher View Post
                              The idea of an estoppel is I think more attractive. It ought to be the case that a tenant can take a landlord at his word and give him possession as requested in the notice.
                              Either analysis works equally as well as the other - the result is the same.

                              Out of interest, what is your view on the original question you posed?
                              Health Warning


                              I try my best to be accurate, but please bear in mind that some posts are written in a matter of seconds and often cannot be edited later on.

                              All information contained in my posts is given without any assumption of responsibility on my part. This means that if you rely on my advice but it turns out to be wrong and you suffer losses (of any kind) as a result, then you cannot sue me.

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