Is s.21 Notice invalid if L and T negotiate new letting?

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  • Paul Gibbs
    replied
    I am on the fence as to whether the notice remains in force.

    Equitable estoppel by conduct is a common law remedy it can apply to a section 21 notice in my view.

    The test will be on the facts of each case but I do think its arguable - tenant would need to have strong evidence of detriment - I highly doubt not looking for anywhere else would suffice it would need to be much more than that.

    its an uphill struggle but I see no reason why in theory it cannot be argued, subject to sufficient evidence.

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  • agent46
    replied
    Originally posted by Ruth Less View Post
    PS: Do you have to shoot me now I know you are a lawyer
    Just watch out for any Bulgarians carrying an umbrella.

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  • Ruth Less
    replied
    Originally posted by agent46 View Post
    In reality, the tenant usually gets a reasonable amount of notice because (a) any landlord with a modicum of common sense will try to get possession consensually (b) any possession case makes a rather sedate journey through the civil justice system and the time from service of the claim form on the tenant to the date of the hearing, or even further ahead, the expiry of the possession order is many weeks into the future.
    Yes of course you are technically correct in this. But once a court possession order (or even overstaying a S21) is on the tenant's "file" that is can be accurately reported in their references then surely they are stuffed when trying to arrange the next tenancy! I would move to prevent this on my references at all costs and thus would not hang about to allow it to happen to me. Out in the real world a good reference and good relationship with the landlord is worth more than the few hundred quid and hassle of moving. So I would move to protect my references and peace of mind, there is no way I would allow a landlord operating the SoD to drag me down.

    PS: Do you have to shoot me now I know you are a lawyer

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  • lorenzo
    replied
    Originally posted by agent46 View Post
    I'm on the fence TBH.

    Whilst what you have said is all true, it also ensures that when a tenancy ends, the landlord is able to regain possession without much further ado.

    Essentially, it makes the situation accord with the intentions of the parties and the usual rule with respect to leases at common law- ie: possession for the term of the lease after which the landlord can apply without further notice for a possession order. Therefore if they enter into a tenancy, the tenant knows (by way of the notice) that the landlord will be wanting possession after the expiry of the tenancy, and will not be wanting to bother with all that count forward to the next rent day and add two months malarkey, thanks very much for asking.

    In reality, the tenant usually gets a reasonable amount of notice because (a) any landlord with a modicum of common sense will try to get possession consensually (b) any possession case makes a rather sedate journey through the civil justice system and the time from service of the claim form on the tenant to the date of the hearing, or even further ahead, the expiry of the possession order is many weeks into the future.
    Points taken. However the level of stress heaped upon a tenant is likely to be inversely proportional to his/her knowledge on the subject. We are all fully aware here, because of the discussion. But an unsuspecting tenant will most likely engage the limbic brain and panic somewhat.

    This is my contention that the practice is not what was intended by the Housing act, which is to allow tenants ample time to rehouse themselves.

    Personally, I am with Ruth. If someone slaps an s21 on me and I'm out of there in accordance with the notice. No further correspondence will be entered into. The LL will experience the Law of Unintended Consequences and suffer a void.

    Why? Because even armed with the above knowledge, it is a stress I can live without.

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  • agent46
    replied
    Originally posted by lorenzo View Post
    I would like some opinion from the lawyers here whether they think the practice of SoD is fair.

    It's now pretty clear what the letter of the law is, what about the spirit of the law.

    My reading is that S21 is their to ensure that LLs can get their property back after due process, namely 2 months notice and if necessary, a court order.

    SoD effectively removes the first part of that due process and relies on T's ignorance of the full ramifications of such; therefore, a breach of the "spirit" of the law.

    Would that be fair comment?
    I'm on the fence TBH.

    Whilst what you have said is all true, it also ensures that when a tenancy ends, the landlord is able to regain possession without much further ado.

    Essentially, it makes the situation accord with the intentions of the parties and the usual rule with respect to leases at common law- ie: possession for the term of the lease after which the landlord can apply without further notice for a possession order. Therefore if they enter into a tenancy, the tenant knows (by way of the notice) that the landlord will be wanting possession after the expiry of the tenancy, and will not be wanting to bother with all that count forward to the next rent day and add two months malarkey, thanks very much for asking.

    In reality, the tenant usually gets a reasonable amount of notice because (a) any landlord with a modicum of common sense will try to get possession consensually (b) any possession case makes a rather sedate journey through the civil justice system and the time from service of the claim form on the tenant to the date of the hearing, or even further ahead, the expiry of the possession order is many weeks into the future.

    Leave a comment:


  • lorenzo
    replied
    Originally posted by agent46 View Post
    The three lawyers were Jeffrey, Lawcruncher and myself. We all say that a s.21 notice is not invalidated by unconcluded negotiations for a new tenancy. Jeffrey gave reasons why this is the case in post #17 - I agree with those reasons and would have posted something very similar if I'd had time to expand on my posts yesterday.
    I would like some opinion from the lawyers here whether they think the practice of SoD is fair.

    It's now pretty clear what the letter of the law is, what about the spirit of the law.

    My reading is that S21 is their to ensure that LLs can get their property back after due process, namely 2 months notice and if necessary, a court order.

    SoD effectively removes the first part of that due process and relies on T's ignorance of the full ramifications of such; therefore, a breach of the "spirit" of the law.

    Would that be fair comment?

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  • bunny
    replied
    Originally posted by jeffrey View Post
    The s.21(4)(a) is still valid. All that the s.13 does is to propose a rent increase; the tenancy itself continues in force.
    Thanks for that Jeffrey. Very useful.

    Said tenant has gone awol and seems to have a mate with a bicycle cluttering up the hallway living there instead but the mate is also hiding from me! I just missed rugby tackling the mate today (that's a joke!).

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  • agent46
    replied
    Originally posted by Ruth Less View Post
    By experts disagreeing I was counting Paul_f and what he said about the "prominent housing specialist solicitors". I note he didn't name who he meant but co-incidentally I've also read similar on the website of Painsmith in a PDF document in the past (it's not there any more IIRC).

    Weighing in against that is the respected jeffrey.

    I make that experts disagreeing.

    As for the other lawyers you mention I'd be interested to know who they are. I did ask agent46 what his profession was in the past but the reply was he'd have to shoot me if he told me. So if you could point out the other two lawyers that would be most welcome (assuming you were counting jeffrey as one of the three).
    The three lawyers were Jeffrey, Lawcruncher and myself. We all say that a s.21 notice is not invalidated by unconcluded negotiations for a new tenancy. Jeffrey gave reasons why this is the case in post #17 - I agree with those reasons and would have posted something very similar if I'd had time to expand on my posts yesterday. http://www.landlordzone.co.uk/forums...0&postcount=17

    On the other hand, the opposite view is out forward by Paul_F, who is an estate agent repeating something he was once told by a solicitor.

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  • jeffrey
    replied
    Originally posted by bunny View Post
    I served a S21(4)(a) on a tenant with a SPT earlier this year because they were in arrears and persistently paying their rent late. They came back into line and I later served a S13 rent increase notice. They haven't paid their December rent though so I fear trouble ahead. Could I rely on the S21(4)(a) I served earlier in the year or does the S13 negate it?
    The s.21(4)(a) is still valid. All that the s.13 does is to propose a rent increase; the tenancy itself continues in force.

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  • Ruth Less
    replied
    Originally posted by jeffrey View Post
    Best to rely on the view of the law (not just the 'experts').
    Thing is that it's pretty hard for ordinary people like me to interpret the law correctly. Who am I to say the likes of "prominent housing specialist solicitors" are not correct, especially as I can see logic in their argument. On the other hand I get your reasoning, it certainly matches with what's written in the bits of law you mention. I guess I always wonder if other bits of law I'm unaware of come into play too so that does leave me replying on experts to interpet and explain.

    Originally posted by jeffrey View Post
    Section 21(1)(a) is unqualified: it implements s.21 if a fixed-term AST has come to an end and no new AST (except implied statutory continuation) has replaced it. Subsequent negotiations/agreement-subject-to-contract therefore would not affect the validity of a s.21 Notice if already validly served with reference to an existing tenancy. What would affect its validity is the actual grant of a new fixed-term or explicit contractual AST; the Notice is specific to the existing Tenancy, you see.
    This illustrates why after having been served a S21 I'd not hang about negotiating as that eats into the valuable time that I have to arrange moving as it could well be that after negotiations but before the new AST was signed the landlord changes his mind leaving me having to move in a hurry. My view is that if L wished me to remain he should not have served the S21.

    For the OP's example, where T ends up with in effect two weeks notice to vacate, I'd probably attempt a defence against the S21 along the lines Paul_f mentioned if only to cause enough delay to arrange moving. It would look bad on T's references though which would always be my concern about not leaving when the S21 indicates.

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  • Ruth Less
    replied
    Originally posted by Lawcruncher View Post
    So far you have three lawyers on this site all agreeing. Not a guarantee they are right, I admit, but how many do you want?
    By experts disagreeing I was counting Paul_f and what he said about the "prominent housing specialist solicitors". I note he didn't name who he meant but co-incidentally I've also read similar on the website of Painsmith in a PDF document in the past (it's not there any more IIRC).

    Weighing in against that is the respected jeffrey.

    I make that experts disagreeing.

    As for the other lawyers you mention I'd be interested to know who they are. I did ask agent46 what his profession was in the past but the reply was he'd have to shoot me if he told me. So if you could point out the other two lawyers that would be most welcome (assuming you were counting jeffrey as one of the three).

    Originally posted by Lawcruncher View Post
    How exactly can you avoid them? Once you are in they can serve the notice.
    How to avoid the Sword of Damocles? Well during the viewings I simply ask the agent (or landlord) if they routinely serve S21 notices even when they do not wish the tenant to leave and avoid those that do. I also make clear that if served notice then being a good tenant I will be sure to leave on time. That weeds out the SoD. Once I'm in of course they can serve notice, in which case I will know they mean I should leave (due to the earlier discussion) and thus I have my minimum two months to arrange moving which I find a comfortable amount of time.

    (The Sword to Damocles to me is the landlord serving the S21 as a precaution even when he does not want the T to leave. The reason being that the notice period can then be ticking away in the background so that should the landlord want the tenant to leave in future he has dispensed with having to wait for a two months notice period.)

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  • bunny
    replied
    If I could ask a question that's relevant to this thead.


    I served a S21(4)(a) on a tenant with a SPT earlier this year because they were in arrears and persistently paying their rent late. They came back into line and I later served a S13 rent increase notice. They haven't paid their December rent though so I fear trouble ahead. Could I rely on the S21(4)(a) I served earlier in the year or does the S13 negate it?

    Sorry if this has already been answered in the thread indirectly.

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  • Lawcruncher
    replied
    Originally posted by Ruth Less View Post
    As the experts disagree on this matter then how the hell are tenants supposed to know if they are coming or going?
    So far you have three lawyers on this site all agreeing. Not a guarantee they are right, I admit, but how many do you want?


    Originally posted by Ruth Less View Post
    This is why I'd avoid a landlord who operates the Sword of Damocles at all costs.
    How exactly can you avoid them? Once you are in they can serve the notice.

    Leave a comment:


  • jeffrey
    replied
    Originally posted by Ruth Less View Post
    As the experts disagree on this matter then how the hell are tenants supposed to know if they are coming or going? This is why I'd avoid a landlord who operates the Sword of Damocles at all costs. I'm happy with two months notice fair and square and would move out on time, but will not take the risk of any less than that or risk a possession order mucking up my references.
    Best to rely on the view of the law (not just the 'experts'). Section 21(1)(a) is unqualified: it implements s.21 if a fixed-term AST has come to an end and no new AST (except implied statutory continuation) has replaced it. Subsequent negotiations/agreement-subject-to-contract therefore would not affect the validity of a s.21 Notice if already validly served with reference to an existing tenancy. What would affect its validity is the actual grant of a new fixed-term or explicit contractual AST; the Notice is specific to the existing Tenancy, you see.

    Leave a comment:


  • Ruth Less
    replied
    As the experts disagree on this matter then how the hell are tenants supposed to know if they are coming or going? This is why I'd avoid a landlord who operates the Sword of Damocles at all costs. I'm happy with two months notice fair and square and would move out on time, but will not take the risk of any less than that or risk a possession order mucking up my references.

    Leave a comment:

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