Section 21 notice correctness and validity

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  • diegoarmando
    replied
    Thanks a lot to everybody for your replies!

    D.

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  • jeffrey
    replied
    Yes. L can serve a 'pure' s.21 Notice at any time once the Tenancy has begun.
    But, if the s.21 Notice is intended to operate under a Break Clause too, it is constrained by the Break Clause' s rules too.

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  • Lawcruncher
    replied
    What I am saying is that a break clause is contractual. Its terms must be complied with for a notice to break to be valid.

    I think that Jeffrey's point was that a landlord has the statutory right to serve a section 21 notice and that that right cannot be contracted out. Whether that is correct I am not sure. Quite often a statute will specify whether or not you cannot contract out of any rights it gives. There is nothing in the HA 1988 either way.

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  • tom999
    replied
    Originally posted by Lawcruncher View Post
    The wording in red is clear. The notice cannot be served before 26/12/2009. When a notice is served and when it takes effect (i.e. expires) are two different things. The notice was served before 26/12/2009 and is therefore invalid.
    So, are you saying that the advice below is incorrect?
    Originally posted by jeffrey View Post
    ...
    A s.21 Notice can be served at any time during an AST (if any protectable deposit has been protected) and L can even obtain a Possession Order during the AST's fixed term, BUT possession cannot be obtained under such Order during a fixed term AST.
    Originally posted by Krispy View Post
    Even if the contract says it cant be served before 26/12/09?
    Originally posted by jeffrey View Post
    Yes. A s.21 Notice is not necessarily a break-clause Notice, although it can stand as both.
    L's right under s.21 is statutory. Nothing in any Agreement can override an Act unless the Act itself allows the parties to agree otherwise.

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  • Lawcruncher
    replied
    Originally posted by diegoarmando View Post
    “This agreement may be terminated by the Landlord upon serving 2 months notice in writing not to be served before 26/12/2009 to the property address”.
    The wording in red is clear. The notice cannot be served before 26/12/2009. When a notice is served and when it takes effect (i.e. expires) are two different things. The notice was served before 26/12/2009 and is therefore invalid.

    If a trainee solicitor had produced this clause I would have sent it back "D- Try again". At the beginning it says the agreement may be terminated upon serving 2 months' notice. This strictly means that the landlord has to give 2 months' notice, but that the agreement ends when the notice is served, which is a nonsense. At the end the words "to the property address" are rather hanging out to dry and it is not immediately apparent how they fit in. They could mean (as is undoubtedly the intention) that the notice is to be served (a) not before 26/12/2009 and (b) at the property. They could also mean that a notice served before 26/12/2009 but not at the property is valid.

    There are three different things:

    1. A notice to quit. Such a notice may only be served in respect of a periodic tenancy. The HA 1988 clearly provides that a notice to quit given by a landlord in respect of an assured tenancy is of no effect.

    2. A notice exercising a right to break. This is sometimes referred to as a notice to quit, but that is not what it is. It if were a notice to quit it would be invalid if served by the landlord - see paragraph 1. Where the tenancy is an assured tenancy, the effect of the service by a landlord of a notice exercising a right to break is to bring to an end the fixed term - all that the landlord has done is to bring forward the end of the fixed term. If the tenant remains in occupation when the fixed term expires a statutory periodic tenancy arises.

    3. A section 21 notice. This is very definitely not a notice to quit. It cannot be since if it were it would be invalid - see paragraph 1.

    Depending on the wording of the break clause, the service of a section 21 notice may operate as a notice to break.

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  • Paul Gibbs
    replied
    Break clause

    The contract has a break clause which the LL can use to require you to leave. The purpose of the break clause is to mean that your tenancy is guaranteed until 26 December 2009, but after that date the LL can serve a 2 month notice to quit on you. Should you fail to leave following his notice then he could take court proceedings against you.

    The section 21 notice might be capable operating the break clause; however it appears it has been served too early. From the wording of the tenancy agreement the notice cannot be served until after 26 Dec and then must run for 2 months.

    NB LL can operate the break clause even if he has failed to protect any deposit.

    S21 Notice

    A section 21 notice can be served at any time within the fixed term, but any order for possession could not take effect until the end of the fixed term (April 2010).

    For a valid section 21 notice to be served the deposit must have been protected, and the prescribed information served on you. We do not know whether the deposit is protected and I would suggest you contact the schemes to see if they have any record.

    You need to be aware that letters can genuinely get lost in the post, and most tenancy agreements have a clause allowing the landlord to assume a letter has been delivered even if it failed to reach you. The onus is on the landlord to show that the letter was actually posted.

    This means that even if the section 21 notice is valid and even if the LL issued a claim he could not get a possession order under section 21 to take effect until April 2010.

    My view at this stage is that LL has not operated the break clause, and although the section 21 notice may be valid it is unlikely the LL will want to take court proceedings at this stage as he would not get a possession order until April in any event.

    This post is drawing together a number of other posters comments which hopefully will assist OP.

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  • jeffrey
    replied
    Originally posted by diegoarmando View Post
    so the clause in the contract is completely usless ?
    I thought that the statute provided the minimum amount of notice due if the contract is silent.
    No and mostly no, respectively.
    1. The Letting Agreement can contain a break-clause if that is what the parties want. It adds legal rights to those which the law provides.
    2. There is no implicit break right for either party otherwise.
    3. There is no minimum tenancy length.
    4. There is a minimum Notice period under:
    a. both s.8 or s.21, if L is using either or both; and
    b. common law, if T is using it to end a statutory periodic tenancy [s.5].

    Leave a comment:


  • diegoarmando
    replied
    Originally posted by jeffrey View Post
    Yes. A s.21 Notice is not necessarily a break-clause Notice, although it can stand as both.
    L's right under s.21 is statutory. Nothing in any Agreement can override an Act unless the Act itself allows the parties to agree otherwise.
    so the clause in the contract is completely usless ?
    I thought that the statute provided the minimum amount of notice due if the contract is silent.
    So that the statute is used as a guideline and then you add in the contract the elements that are different..
    well obviously I'm just guessing since I'm not a lawyer..but it would make sense to me.

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  • jeffrey
    replied
    Originally posted by Krispy View Post
    Even if the contract says it cant be served before 26/12/09?
    Yes. A s.21 Notice is not necessarily a break-clause Notice, although it can stand as both.
    L's right under s.21 is statutory. Nothing in any Agreement can override an Act unless the Act itself allows the parties to agree otherwise.

    Leave a comment:


  • tom999
    replied
    Originally posted by Krispy View Post
    Fixed term ends April 2010 and he has been given 2 months notice to vacate backdated to 13 Nov 2009*....
    Of course its relevant 2 months notice from the 13 November is 12 January 'expiry'.
    s.21 notice was not 'backdated'. It's only relevant if this date* was the actual date of service of the s.21 'notice'; prior to my post, OP implied he/she had received a 'notice' and a letter; it was not clear what date was on notice, which was eventually answered in post #17.
    1. if LL has proof of service of s.21 on 13 Nov 2009, it may still be valid;
    2. if this notice was served on 1 Dec 2009, then it's invalid.


    diegoarmando: In the first instance, try to negotiate with the LL to agree to end the tenancy on good terms and to give you enough time to find alternative accomodation. If this fails, rather than get different opinions from an internet forum, it would be better to seek specialist help:
    • CAB, Shelter.
    • A solicitor who specialises in LL & T law in England or Wales.

    Leave a comment:


  • Krispy
    replied
    Originally posted by jeffrey View Post
    2. A s.21 Notice can be served at any time during an AST (if any protectable deposit has been protected) and L can even obtain a Possession Order during the AST's fixed term, BUT possession cannot be obtained under such Order during a fixed term AST.
    Even if the contract says it cant be served before 26/12/09?

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  • diegoarmando
    replied
    Originally posted by Krispy View Post
    Of course its relevant 2 months notice from the 13 November is 12 January 'expiry'.
    I'm still confused...
    1) I received the actual notice on 1st December.
    The LL claimed that the letter was sent on 13th but I've never received it (until he dropped manually another copy at my address, in person).
    when is my notice expiring??
    31st January or 13th January?? I thought it was starting from when I received it.


    2) what's the meaning of the contract when it states “This agreement may be terminated by the Landlord upon serving 2 months notice in writing not to be served before 26/12/2009 to the property address”.
    my understanding is still that he can actually send the notice whenever he wants but it'll take effect 2 months after 26/12/09

    what do you think?

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  • Krispy
    replied
    Originally posted by tom999 View Post
    OP has stated that notice was served on 1 Dec with a letter, and not 'backdated'. Date on letter is not relevant; it's the date of service and the expiry date of the s.21 notice that matters.
    Of course its relevant 2 months notice from the 13 November is 12 January 'expiry'.

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  • jeffrey
    replied
    To clarify:
    1. A unilateral break clause is valid. If the other party disagrees, however, it can be challenged under the Unfair Terms etc. Regs.
    2. A s.21 Notice can be served at any time during an AST (if any protectable deposit has been protected) and L can even obtain a Possession Order during the AST's fixed term, BUT possession cannot be obtained under such Order during a fixed term AST.

    Leave a comment:


  • diegoarmando
    replied
    Originally posted by tom999 View Post
    1. Was the notice served with a letter?
    2. If so, was there a date of service on the notice (not the letter)? What was this date?
    3. What was the expiry date on the s.21 notice?
    1) Yes, the letter initially sent by post (that's what LL told me) but I never received. I have no evidence of this, though (neither does he!). So basically he left by hand this letter, dated 13th November, which I received on 1st December.
    2) date of the notice is the same as letter, 13th November
    3) expiry date is 12th January


    Since he cannot prove he actually sent this letter on 13th...I am just wondering why didn't he bring the letter with him the first time he went to my place to discuss about his intention about selling the house?
    I don't want to be malicious but it doesn't make sense!
    Also he told me about the notice ONLY when I asked him if he ever sent anything to me.

    D.

    Leave a comment:

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