Can T end AST periodic tenancy once L's served s.21?

Collapse
X
  • Filter
  • Time
  • Show
Clear All
new posts

  • Can T end AST periodic tenancy once L's served s.21?

    If there is a monthly periodic AST and the landlord gave a s21 notice which ends on the last day of a rental period but gave 3 months notice, CAN the tenant still give 1 months notice to end the tenancy on the last day of a rental period?

  • #2
    Originally posted by jase27 View Post
    If there is a monthly periodic AST and the landlord gave a s21 notice which ends on the last day of a rental period but gave 3 months notice, CAN the tenant still give 1 months notice to end the tenancy on the last day of a rental period?
    Yes. See http://www.landlordzone.co.uk/forums...ead.php?t=6845.
    JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
    1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
    2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
    3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
    4. *- Contact info: click on my name (blue-highlight link).

    Comment


    • #3
      Thank You

      Thank you for your amazingly fast reply. Unfortunately the link was dead but I have asked admin if they can help!

      Comment


      • #4
        Originally posted by jase27 View Post
        Thank you for your amazingly fast reply. Unfortunately the link was dead but I have asked admin if they can help!
        Link does work- but it's a bit slow in loading.
        JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
        1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
        2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
        3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
        4. *- Contact info: click on my name (blue-highlight link).

        Comment


        • #5
          Originally posted by jase27 View Post
          If there is a monthly periodic AST and the landlord gave a s21 notice which ends on the last day of a rental period but gave 3 months notice, CAN the tenant still give 1 months notice to end the tenancy on the last day of a rental period?
          Tenant can leave at the end of the current rental period without the necessity to serve Notice on the landlord if they so wish, and without further liability to rent thereafter.
          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.

          Comment


          • #6
            Originally posted by Paul_f View Post
            Tenant can leave at the end of the current rental period without the necessity to serve Notice on the landlord if they so wish, and without further liability to rent thereafter.
            Is that correct?

            You have said in previous posts that once a tenancy is periodic, 2 months notice must be given by L and one month's by T (both to end on a rent-due day). I don't think a T can just up sticks at the end of a month without notice, can he?
            'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

            Comment


            • #7
              The reason why I say this is because there is nothing with S.21 of the Housing Act to say the T is obliged to stay for the duration of the Notice period, only to the end of the current rental period; the L is constrained by the timescale in law, but not T. (This only applies to statutory period tenancies arising from an AST)

              The T I would say has a common law right to leave the premises if they so wish before the expiry of the Notice (they may well have another property available to move into, and might miss out if they delayed, so would be unfairly penalised by not being allowed to take up new tenancy asap, and having liability for rent on 2 properties), and maintain that they could do so without any further liability to rent at the end of the current rental period for which they had paid in advance.

              The L has the property returned to them, albeit earlier than they had perhaps wanted or expected, but the L must serve the minimum Notice of 2 months although I would say that if he could, he would have preferred to be able to do it sooner 9 times out of 10.

              I feel there is no need for the T to serve any counter Notice as the L has asked for the premises to be returned to him, and the T has complied.

              Will somebody who disagrees please tell me where it states the tenant must stay for 2+ months unless they serve a counter-notice? L has informed T he wants premises back; T says he will go at the end of current rental period. Why would tenant have further liability to rent for 1 or 2 months more? The S.21 has been complied with by T.
              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.

              Comment


              • #8
                This is a question that was puzzled over in another thread a while ago. After complicating the matter by bringing in a lot of irrelevancies I realised the answer was astonishingly straightforward.

                First, one asks: "What was the position of a tenant on a residential perioidic tenancy before the HA 1988 came into force?" The answer to that is: "He had to serve a common law notice."

                Secondly, one asks: "Is there anything in the HA 1988 that changes that?" The answer to that is: "No."

                Thirdly, if one asks: "Is the tenant's position the same both before and after the HA 1988 came into force?" the answer must be: "Yes."

                One can ask further: "What is the effect of a section 21 notice?". The answer to that, when you think about it, and even if you do not, is: "It has no effect at all except to put the tenant on notice that the landlord requires possession. A section 21 notice is no more than a statutory requirement to be complied with if the landlord wishes to bring an AST to an end on a no-fault basis. If the tenant gives no notice to quit the tenancy continues until a court order is obtained."

                Further consideration shows that all this must, in the absence of statutory intervention, follow from one of the basic requirements of a tenancy, which is that when it starts the maximum period of its duration must be ascertainable. Whilst a periodic tenancy is in fact a single tenancy, it may for this purpose conveniently be considered to be a series of tenancies of equal length. This means that at any given moment the landlord knows the earliest date on which the tenant can end the tenancy by giving a notice to quit. If it were the case that, a section 21 notice having been served, the tenancy continued so long as the tenant remained in occupation, but came to an end if the tenant gives up occupation, then, at any given moment before the tenant left, the landlord would not know when the tenancy was going to end and that would mean that the tenancy was no tenancy at all when we all know it is!

                Accordingly, a tenant on a periodic tenancy who wishes unilaterally to bring the tenancy to an end must serve a notice to quit irrespective of whether the landlord has served a section 21 notice.

                None of this of course prevents the landlord and tenant from agreeing that the tenancy should end at any time. So, if the landlord serves a section 21 notice, the tenant tells the landlord he is off on a specific date (whether before, on or after the date specified in the section 21 notice) and the landlord says "Super!" the tenancy will end when the tenant goes as the parties have agreed a surrender by operation of law.

                Comment


                • #9
                  Originally posted by Lawcruncher View Post
                  Accordingly, a tenant on a periodic tenancy who wishes unilaterally to bring the tenancy to an end must serve a notice to quit irrespective of whether the landlord has served a section 21 notice.

                  None of this of course prevents the landlord and tenant from agreeing that the tenancy should end at any time. So, if the landlord serves a section 21 notice, the tenant tells the landlord he is off on a specific date (whether before, on or after the date specified in the section 21 notice) and the landlord says "Super!" the tenancy will end when the tenant goes as the parties have agreed a surrender by operation of law.
                  So what happens in the case where T on receipt of the S21 gets stuck in to arrange moving and once he has a new place arranged tells the landlord he is off on the date specified in the section 21 notice and the landlord doesn't say super. If L says sorry mate I've changed my mind and if there isn't then time for T to serve counter notice are you saying T is liable for another months rent? I find that bizarre as T has complied with L's original request.
                  ~~~~~

                  Comment


                  • #10
                    Originally posted by Lawcruncher View Post
                    This is a question that was puzzled over in another thread a while ago. After complicating the matter by bringing in a lot of irrelevancies I realised the answer was astonishingly straightforward.

                    ...One can ask further: "What is the effect of a section 21 notice?". The answer to that, when you think about it, and even if you do not, is: "It has no effect at all except to put the tenant on notice that the landlord requires possession. A section 21 notice is no more than a statutory requirement to be complied with if the landlord wishes to bring an AST to an end on a no-fault basis. If the tenant gives no notice to quit the tenancy continues until a court order is obtained."

                    Further consideration shows that all this must, in the absence of statutory intervention, follow from one of the basic requirements of a tenancy, which is that when it starts the maximum period of its duration must be ascertainable. Whilst a periodic tenancy is in fact a single tenancy, it may for this purpose conveniently be considered to be a series of tenancies of equal length. This means that at any given moment the landlord knows the earliest date on which the tenant can end the tenancy by giving a notice to quit. If it were the case that, a section 21 notice having been served, the tenancy continued so long as the tenant remained in occupation, but came to an end if the tenant gives up occupation, then, at any given moment before the tenant left, the landlord would not know when the tenancy was going to end and that would mean that the tenancy was no tenancy at all when we all know it is!

                    Accordingly, a tenant on a periodic tenancy who wishes unilaterally to bring the tenancy to an end must serve a notice to quit irrespective of whether the landlord has served a section 21 notice.

                    I follow your argument and take it to mean that what Paul f has said in #7 of this thread is therefore not the case.
                    'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

                    Comment


                    • #11
                      Originally posted by Ruth Less View Post
                      So what happens in the case where T on receipt of the S21 gets stuck in to arrange moving and once he has a new place arranged tells the landlord he is off on the date specified in the section 21 notice and the landlord doesn't say super. If L says sorry mate I've changed my mind and if there isn't then time for T to serve counter notice are you saying T is liable for another months rent? I find that bizarre as T has complied with L's original request.
                      No, because a s21 notice is legally binding on L as well as T, unless T and L come to an alternative, mutually satisfactory agreement, surely?
                      'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

                      Comment


                      • #12
                        Originally posted by mind the gap View Post
                        No, because a s21 notice is legally binding on L as well as T, unless T and L come to an alternative, mutually satisfactory agreement, surely?
                        Wrong! Section 21 Notices are headed, "Landlord's Notice of Intention to Apply for Possession- Assured Shorthold Tenancy". The wording goes on to warn that L intends to apply unless T has vacated by the due date. How do you derive that L is obliged to make an application, then?
                        JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                        1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                        2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                        3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                        4. *- Contact info: click on my name (blue-highlight link).

                        Comment


                        • #13
                          Originally posted by jeffrey View Post
                          Wrong! Section 21 Notices are headed, "Landlord's Notice of Intention to Apply for Possession- Assured Shorthold Tenancy". The wording goes on to warn that L intends to apply unless T has vacated by the due date. How do you derive that L is obliged to make an application, then?
                          I did not mean that I think L is obliged to apply for possession; I meant that I was not aware that there is a mechanism by which he could withdraw an s21, once issued, without T's agreement. L cannot have it both ways; he cannot say 'Right, you have 2 months to leave after which I intend to seek possession'; T says 'OK then' and is about to move out, at which point L flounces a bit and says 'Actually, I was just joking. I didn't mean it. I want you to say, after all, and if you insist on moving out you'll have to give me a month's notice.'

                          Is T not entitled to say 'No, sod off'?
                          'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

                          Comment


                          • #14
                            Originally posted by mind the gap View Post
                            I did not mean that I think L is obliged to apply for possession; I meant that I was not aware that there is a mechanism by which he could withdraw an s21, once issued, without T's agreement. L cannot have it both ways; he cannot say 'Right, you have 2 months to leave after which I intend to seek possession'; T says 'OK then' and is about to move out, at which point L flounces a bit and says 'Actually, I was just joking. I didn't mean it. I want you to say, after all, and if you insist on moving out you'll have to give me a month's notice.'

                            Is T not entitled to say 'No, sod off'?
                            OK, keep calm: but you did suggest that L is 'bound' by the Notice.
                            Why cannot L either:
                            a. not proceed to apply; or
                            b. confirm to T that no application will be made? Note: L so confirming might be 'bound' by representation if T relies on it to his/her detriment.
                            JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                            1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                            2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                            3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                            4. *- Contact info: click on my name (blue-highlight link).

                            Comment


                            • #15
                              Originally posted by jeffrey View Post
                              OK, keep calm: but you did suggest that L is 'bound' by the Notice.
                              Why cannot L either:
                              a. not proceed to apply; or
                              b. confirm to T that no application will be made? Note: L so confirming might be 'bound' by representation if T relies on it to his/her detriment.
                              I am calm - quintessentially so ...but I would appreciate an explanation of the phrase I have underlined above, please?

                              (nb: By being 'bound' by the notice, yes, I did mean that once L issues it, I would assume that he can only revoke it with T's agreement. Which is what you might, or might not, have agreed, except that I don't know because I didn't fully understand your answer!).
                              'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

                              Comment

                              Latest Activity

                              Collapse

                              Working...
                              X