My s.21 Notice will soon take effect; what else do I need?

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    #61
    Originally posted by agent46 View Post
    I don't think the estoppel would operate in the case of a s.8 notice.

    You clearly have a real bee in your bonnet about this issue and, it seems, you just don't seem to be able to accept that what I have written is a correct statement of the law (but please tell me if I have misunderstood you). Unfortunately you don't actually formulate a reasoned counter-argument, or articulate where you think my legal reasoning has taken a wrong turn and instead just keep coming up with a seemingly endless list of "yeah, but" points, almost all of which can be answered with the rejoinder "so what".

    In terms of legal argument, I have nothing to add to what I have written in my posts, above.

    Re: Lawcruncher's opinion on estoppel etc: You seem to misunderstand the nature of an estoppel. As I have already stated several times, estoppel is an equitable and therefore discretionary and somewhat nebulous remedy, and so there is likely to be disgreement as to exactly how it will operate (nevertheless, LC clearly agrees that the argument has legs). However, it seems he doubts the likelihood of the T being able an open-ended estoppel, but then so do I, so we actually agree on that point.

    Perhaps he will elaborate.
    You misunderstand I'm not being argumentative and I'm not trying to formulate a counter argument. In the light of this new to me NTQ information, I'm seeking clarity on when T can leave without further rent owed which you insist we have yet:

    1. lawcruncher doesn't seem to agree with estoppel for S21 (he hasn't commented for S8) and I hope he will clarify if he now agrees with circa a months estoppel having seen the further discussion.

    2. You saying estoppel doesn't apply to S8 doesn't make clear if that means T can always reply upon leaving after a S8 even over a month after notice expiry or not. It seems from what you said before S8 goes like the S21, neither bring the tenancy to an end, so what is the import of no estoppel for S8 where T isn't in a position to serve his NTQ and why is there no estoppel for S8? For the S8 can T leave without an NTQ and without rent owed past his leaving date and if so why is this different to the S21 case and how long after notice expiry can T go without incurring more rent owed past his leaving date?

    I know S21 and S8 have their differences but they also have similarities as you pointed out, neither bring the tenancy to an end, so I would expect them to work in a similar way over the ending of the tenancy needing a court order or other as you listed above.

    As you seem to think all is clear then perhaps you could explain how this works for the S8 as that isn't clear to me ATM having read carefully all the posts here.
    ~~~~~

    Comment


      #62
      Originally posted by Ruth Less View Post
      You misunderstand I'm not being argumentative, I'm seeking clarity on when T can leave without further rent owed which you insist we have yet:

      1. lawcruncher doesn't seem to agree with estoppel for S21 (he hasn't commented for S8) and I hope he will clarify if he now agrees with circa a months estoppel having seen the further discussion.
      I have set out my arguments, and LC has reached very similar conclusions. I think the disagreement between LC and I on the estoppel point is really a matter of degree rather than a significant difference on the applicability of the doctrine to this situation.

      However, rather than you or I speculating or reading between the lines, I think we should wait to hear from LC himself.


      Originally posted by Ruth Less View Post
      2. You saying estoppel doesn't apply to S8 doesn't make clear if that means T can always reply upon leaving after a S8 even over a month after notice expiry or not. It seems from what you said before S8 goes like the S21, neither bring the tenancy to an end, so what is the import of no estoppel for S8 where T isn't in a position to serve his NTQ and why is there no estoppel for S8? For the S8 can T leave without an NTQ and without rent owed past his leaving date and if so why is this different to the S21 case and how long after notice expiry can T go without incurring more rent owed past his leaving date?
      That's very garbled. I think I know what you're driving at, but if you want me to answer, please could you re-write it a bit more grammatically (but perhaps the paragraphs below answer your questions).

      Originally posted by Ruth Less View Post
      I know S21 and S8 have their differences but they also have similarities as you pointed out, neither bring the tenancy to an end, so I would expect them to work in a similar way over the ending of the tenancy needing a court order or other as you listed above.
      OK. V. quickly.

      A s.21 notice states that the LL requires possession of the property after a certain date.

      A s.8 notice is a notice to the T that the LL intends to take the T to court to seek possession of the property on the grounds that there has been a breach of tenancy.

      In short, the s.21 notice could amount to a representation on the part of the LL that the tenant is no longer bound to remain in possession of the property after the expiry date of the notice, and on that basis, if the tenant relies on that representation, the landlord may well (subject to the caveats I have set out elsewhere) be estopped from relying on his strict legal rights to require the T to serve NTQ. A s.8 notice, on the other hand, makes no such specific representations which the T could interpret as releasing him from the tenancy. In effect, a s.8 notice merely reserves the LL's position and acts as a warning to the T that the LL may institute possession proceedings against them after a certain period, and not as a get out of jail free card which releases them from the obligation to serve NTQ.


      IN CONCLUSION

      I'm sorry I/we cannot offer you the certainty you are seeking. We are simply trying to work the issues through from first principles, applying the law to a hypothetical set of facts, in order to reach the conclusion a judge is likely to reach if such a case were to come before the court. What's more, I/we are doing it at great length (and for free), so a little less of a demanding, badgering tone would be appreciated (again, apologies if I have misunderstood your 'tone').
      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.

      Comment


        #63
        agent, you have constructed and explained your argument as clearly as humanly possible, but I don't think you will convince this member.

        What's the phrase ...'shouting up a drainpipe'?!
        '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


          #64
          Originally posted by agent46 View Post
          I have set out my arguments, and LC has reached very similar conclusions. I think the disagreement between LC and I on the estoppel point is really a matter of degree rather than a significant difference on the applicability of the doctrine to this situation.

          However, rather than you or I speculating or reading between the lines, I think we should wait to hear from LC himself.




          That's very garbled. I think I know what you're driving at, but if you want me to answer, please could you re-write it a bit more grammatically (but perhaps the paragraphs below answer your questions).



          OK. V. quickly.

          A s.21 notice states that the LL requires possession of the property after a certain date.

          A s.8 notice is a notice to the T that the LL intends to take the T to court to seek possession of the property on the grounds that there has been a breach of tenancy.

          In short, the s.21 notice could amount to a representation on the part of the LL that the tenant is no longer bound to remain in possession of the property after the expiry date of the notice, and on that basis, if the tenant relies on that representation, the landlord may well be estopped from relying on his strict legal rights to require the T to serve NTQ. A s.8 notice, on the other hand, makes no such specific representations which the T could interpret as releasing him from the tenancy. In effect, a s.8 notice merely reserves the LL's position and acts as a warning to the T that the LL may institute possession proceedings against them after a certain period, and not as a get out of jail free card which releases them from the obligation to serve NTQ.


          IN CONCLUSION

          I'm sorry I/we cannot offer you the certainty you are seeking. We are simply trying to work the issues through from first principles, applying the law to a hypothetical set of facts, in order to reach the conclusion a judge is likely to reach if such a case were to come before the court. What's more, I/we are doing it at great length (and for free), so a little less of a demanding, badgering tone would be appreciated (again, apologies if I have misunderstood your 'tone').
          First allow me to apologise for any bad "tone", it was me trying to be clear.

          I had thought, before this NTQ discussion, that with both S21 and S8 T leaving upon (or asap after) notice expiry was doing the "right" thing. The S21 position is now clear as you have explained it. But S8 is still a bit unclear to me.

          So when served with an S8 T isn't free to leave on expiry of the notice period but should await court proceedings if he isn't in a position to serve his own NTQ (e.g. due to being in the fixed term), is that what you're saying? My origional thought was that in leaving T is sparing L the bother of going to court which at first glance seemed a good thing.
          ~~~~~

          Comment


            #65
            Originally posted by mind the gap View Post
            agent, you have constructed and explained your argument as clearly as humanly possible, but I don't think you will convince this member.

            What's the phrase ...'shouting up a drainpipe'?!
            I don't think forum members should be criticised for not understanding all ramifications of a new idea at once. As just posted before this thread I thought T should be leaving on S21 and S8 notice expiry, which is still maybe OK for S21 (via estoppel) but not it seems for S8. Feel free to explain what T should do on expiry of the S8 notice period as being clear on this is of benefit to all sides IMO.
            ~~~~~

            Comment


              #66
              Originally posted by Ruth Less View Post
              First allow me to apologise for any bad "tone", it was me trying to be clear.
              Okey doke.


              Originally posted by Ruth Less View Post
              I had thought, before this NTQ discussion, that with both S21 and S8 T leaving upon (or asap after) notice expiry was doing the "right" thing. The S21 position is now clear as you have explained it. But S8 is still a bit unclear to me.

              So when served with an S8 T isn't free to leave on expiry of the notice period but should await court proceedings if he isn't in a position to serve his own NTQ (e.g. due to being in the fixed term), is that what you're saying? My origional thought was that in leaving T is sparing L the bother of going to court which at first glance seemed a good thing.
              As argued elsewhere, once a claim form for possession has been issued (on either s.21 or s.8 grounds), I would think the LL cannot require the T to serve NTQ, because to do so would be at variance with the relief he is claiming from the court.


              I should emphasise that throughout this thread I have been arguing from principle and with reference to the relevant sections of HA 1988 but without looking into the issue in any real depth. My arguments 'feel' pretty sound, but they may be flawed. Also, I have not researched the matter thoroughly by looking for authorities (ie: case law) which support or undermine my opinion. Although I am not aware of any cases that deal with this issue, I may be mistaken. Please bear the above caveat in mind!
              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.

              Comment


                #67
                Originally posted by agent46 View Post
                Okey doke.




                As argued elsewhere, once a claim form for possession has been issued (on either s.21 or s.8 grounds), I would think the LL cannot require the T to serve NTQ, because to do so would be at variance with the relief he is claiming from the court.


                I should emphasise that throughout this thread I have been arguing from principle and with reference to the relevant sections of HA 1988 but without looking into the issue in any real depth. My arguments 'feel' pretty sound, but they may be flawed. Also, I have not researched the matter thoroughly by looking for authorities (ie: case law) which support or undermine my opinion. Although I am not aware of any cases that deal with this issue, I may be mistaken. Please bear the above caveat in mind!
                OK, so for S8 it seems T is best to either serve his own NTQ or, especially if in the fixed term, wait for the claim form for possession. Getting out on notice expiry (which is I guess the knee jerk reaction) is too soon and could produce a big rent liability.
                ~~~~~

                Comment


                  #68
                  Originally posted by Ruth Less View Post
                  OK, so for S8 it seems T is best to either serve his own NTQ or, especially if in the fixed term, wait for the claim form for possession. Getting out on notice expiry (which is I guess the knee jerk reaction) is too soon and could produce a big rent liability.
                  Yes, I think that is the correct approach.
                  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.

                  Comment


                    #69
                    Originally posted by agent46 View Post
                    Yes, I think that is the correct approach.
                    Yes especially as there could be a lot of rent owed if a T who is still in the fixed term goes on S8 notice expiry. If T owes all rent in lieu of a NTQ, presumably that is up till the end of the fixed term which could be several months away. So waiting for the claim form for possession could save T those months rent.
                    ~~~~~

                    Comment


                      #70
                      Originally posted by agent46 View Post
                      A s.21 notice states that the LL requires possession of the property after a certain date.

                      A s.8 notice is a notice to the T that the LL intends to take the T to court to seek possession of the property on the grounds that there has been a breach of tenancy.

                      In short, the s.21 notice could amount to a representation on the part of the LL that the tenant is no longer bound to remain in possession of the property after the expiry date of the notice, and on that basis, if the tenant relies on that representation, the landlord may well (subject to the caveats I have set out elsewhere) be estopped from relying on his strict legal rights to require the T to serve NTQ.A s.8 notice, on the other hand, makes no such specific representations which the T could interpret as releasing him from the tenancy. In effect, a s.8 notice merely reserves the LL's position and acts as a warning to the T that the LL may institute possession proceedings against them after a certain period, and not as a get out of jail free card which releases them from the obligation to serve NTQ.
                      Hi

                      I understand agent's argument. The case for estoppel seems clearer in relation to a section 21 notice than a section 8, for the reasons he has given. But with reference to the highlighted section in the quote reproduced above, the following is an extract from the prescribed form for a section 8 notice:

                      "Your landlord cannot make you leave your home without an order for possession issued by a court. By issuing this notice your landlord is informing you that he intends to seek such an order. If you are willing to give up possession without a court order, you should tell the person who signed this notice as soon as possible and say when you are prepared to leave."

                      (My emphasis).

                      Why did the Instrument not say "if you are willing to give up possession without a court order, you should serve a valid notice to quit on your landlord or contact your landlord to agree a date on which you will give up possession" (or words to that effect)? The wording employed does seem introduce the possibility that the tenant would be entitled to leave without such formalities.

                      Preston

                      Comment


                        #71
                        Originally posted by Preston View Post
                        Hi

                        I understand agent's argument. The case for estoppel seems clearer in relation to a section 21 notice than a section 8, for the reasons he has given. But with reference to the highlighted section in the quote reproduced above, the following is an extract from the prescribed form for a section 8 notice:

                        "Your landlord cannot make you leave your home without an order for possession issued by a court. By issuing this notice your landlord is informing you that he intends to seek such an order. If you are willing to give up possession without a court order, you should tell the person who signed this notice as soon as possible and say when you are prepared to leave."

                        (My emphasis).

                        Why did the Instrument not say "if you are willing to give up possession without a court order, you should serve a valid notice to quit on your landlord or contact your landlord to agree a date on which you will give up possession" (or words to that effect)? The wording employed does seem introduce the possibility that the tenant would be entitled to leave without such formalities.

                        Preston
                        Yes this is why I was asking in the first place, the warnings to tenants of their rent liabilities from the various bodies etc are not good enough IMO.

                        Best for T to get the end of their rent liability in writing from L before agreeing to leave, or for T to serve NTQ or wait for the claim form for possession.

                        Certainly I would have easily got caught out before now even after reading this forum on and off for some years, I hope the above recommendations will become the standard advice given out here now for S8 especially.

                        And perhaps a few Ls reading this can claim a bit more rent than they first thought too.
                        ~~~~~

                        Comment


                          #72
                          Originally posted by Preston View Post
                          Hi

                          I understand agent's argument. The case for estoppel seems clearer in relation to a section 21 notice than a section 8, for the reasons he has given. But with reference to the highlighted section in the quote reproduced above, the following is an extract from the prescribed form for a section 8 notice:

                          "Your landlord cannot make you leave your home without an order for possession issued by a court. By issuing this notice your landlord is informing you that he intends to seek such an order. If you are willing to give up possession without a court order, you should tell the person who signed this notice as soon as possible and say when you are prepared to leave."

                          (My emphasis).

                          Why did the Instrument not say "if you are willing to give up possession without a court order, you should serve a valid notice to quit on your landlord or contact your landlord to agree a date on which you will give up possession" (or words to that effect)? The wording employed does seem introduce the possibility that the tenant would be entitled to leave without such formalities.

                          Preston
                          I must confess I posted the arguments about s.8 notices without having one in front of me at the time. However, I don't think that wording in bold materially alters the position.

                          Rather than considering what it could be interpreted as, or what, in an ideal world, it should say, lets just look at what it is - it is simply advice to the tenant to discuss the situation with the LL in order that further legal action can be avoided if both the LL and the T are willing to agree a surrender. It is eminently sensible advice because there will be lots of cases where the LL is only too glad to allow the T to leave early in order to avoid the expense and inconvenience of legal action, and that could by way of the T agreeing to serve NTQ (if it is a periodic tenancy), or agreeing a surrender (if it is either fixed term or periodic). Equally however, there will be lots of cases where the LL wants the tenancy to continue if the T remedies the breach, or simply changes his mind about taking possession (a s.8 notice does not set in motion an unstoppable chain of events which inevitably lead to claim for possession).

                          The wording anticipates the possibility of the LL and the T coming to an agreement to terminate the tenancy without the need for a court order and might even be taken to encourage such an agreement, but I don't think it can be stretched so far as to be interpeted as to make the s.8 notice an unconditional invitation by the LL to release the T from the tenancy, nor for that matter is it capable of raising an estoppel against the LL.
                          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.

                          Comment


                            #73
                            The tenant has contacted me today and, among other things, has told me that he has had some advice from a solicitor that he should claim squatters rights when the Section 21 takes effect. Does this sound like sensible advice?

                            He's also talking about going to the local authority and claiming Housing Benefit in the hope that they'll pay the rent from now on along with the arrears. Again, does this sound right?

                            TIA

                            Comment


                              #74
                              Originally posted by digital View Post
                              The tenant has contacted me today and, among other things, has told me that he has had some advice from a solicitor that he should claim squatters rights when the Section 21 takes effect. Does this sound like sensible advice?

                              He's also talking about going to the local authority and claiming Housing Benefit in the hope that they'll pay the rent from now on along with the arrears. Again, does this sound right?
                              No (para. 1) and yes (para. 2).
                              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


                                #75
                                Originally posted by jeffrey View Post
                                No (para. 1) and yes (para. 2).
                                Thanks, jeffrey. The LA will pay his arrears? Some good news on this letting at last!

                                Comment

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