S21 - AST and SPT

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  • S21 - AST and SPT

    This is just a general E&W question, as we never had to use an s21, i wonder if anybody can answer these questions.

    It's sort of a follow on from another S21 post by somebody else.

    When we do an initial 6 month AST, we also serve them with a S21 as a precaution which expires after the initial 6months and then normally allow them just to go SPT. But currently don't serve them another S21, when the initial one goes invalid.

    If we do issue another s.21 at the start of the SPT,

    1) After 2 months can we go anytime to court to get an order, ie. 2-3 years later, and if not how long after you issue the s21 you must use it?

    2) Can the T use the excuse 2-3 years later that you gave them notice and therefore can leave anytime without giving any notice or mid month?

    3) Is there any other practical or legal reasons why you shouldn't issue a s21 when a T goes into a SPT, untill you need it.
    Disclaimer: What I say is either right or wrong. It may be advisable to check what I say with a solicitor. If he says I am right then I am right, unless he is wrong in which case I am wrong; but if he says I am wrong then I am wrong, unless he is wrong in which case I am right

  • #2
    Originally posted by mjbfire View Post
    When we do an initial 6 month AST, we also serve them with a S21 as a precaution which expires after the initial 6months and then normally allow them just to go SPT. But currently don't serve them another S21, when the initial one goes invalid.
    1. S21 correctly served does not become "invalid" unless and until you issue a new AST. Once properly issue, it stays valid, even during the SPT.

    2.do you take a deposit? If so, do you protect the deposit BEFORE issuing the S21?

    If the S21 is issued before the deposit is protected, then that S21 is NOT served properly and therefore not valid in the first place.

    Originally posted by mjbfire View Post
    If we do issue another s.21 at the start of the SPT,
    No need to serve S21(4)(a) if the S21(1)(b) was served correctly

    Originally posted by mjbfire View Post
    1) After 2 months can we go anytime to court to get an order, ie. 2-3 years later, and if not how long after you issue the s21 you must use it?

    2) Can the T use the excuse 2-3 years later that you gave them notice and therefore can leave anytime without giving any notice or mid month?

    3) Is there any other practical or legal reasons why you shouldn't issue a s21 when a T goes into a SPT, untill you need it.
    1. Yes, anytime after it becomes effective (expires being the common term used). But you give them courtesy warning that you wish them to leave.

    2. No, T still has to give you notice properly, so long as the notice is at least one month and ends on the last day of a period of the tenancy.

    3. There's no requirement to issue another S21 because a tenancy continues into a SPT. If you issue one in the SPT, make sure its a S21(4)(a).

    On a practical level, the T may have forgotten about the notice in the first place, if it was served 3 years prior. That doesn't invalidate it though, and you can still ask the court for a possession order based on it.

    You could serve another one, if you think there might be trouble.

    If you haven't served one before, then dont wait until you need it, before serving, because serving the notice is just the start of possibly 4-6 months of trying to get them out. Serve the notice as soon as you sense there might be trouble ahead. If LL-T relationship has broken down by the time you serve the notice, you are leaving yourself open to stress and possibly serious financial loss in that period.

    Comment


    • #3
      Originally posted by mjbfire View Post
      Is there any other practical reasons why you shouldn't issue a s21 when a T goes into a SPT, untill you need it.


      If I was a tenant, I would start looking for a new property the instant I was issued with an S21. So if your aim is to have a constant churn of tenants then keep issuing S21’s even when you don’t want the tenant to leave.

      If I was told before signing the initial six month fixed term agreement that I would be issued with an S21 as standard, I wouldn’t even bother to take the property in the first place.

      Comment


      • #4
        Originally posted by havensRus View Post
        2. No, T still has to give you notice properly, so long as the notice is at least one month and ends on the last day of a period of the tenancy.


        Why? If the landlord has issued an S21 requiring possession of the property, why is the tenant then required to give notice?

        If I rented a property for six months, while moving house for example, and saw an S21 on day one I would think that’s fine. At the end of the six months I would just quit, because the landlord has already asked for possession six months earlier. I don’t see why I would need to give notice when there’s already a notice been issued by the landlord.

        A search of the forums for ‘Sword Of Damocles’ should give you plenty of other opinions. My suggestion is to wait two to three months into the tenancy before deciding to issue an S21 at which point you might decide that one isn’t needed at all.
        I also post as Moderator2 when moderating

        Comment


        • #5
          Haven,

          The deposit is always protected well within the 14 days, I even do it via bacs just to make sure. Many thanks for letting me know that the one in the AST would be still valid, as I can't see the reason for changing my procedure to do another one at the start of the PST period.

          Mars Mug,

          As I say I already give them a S21 a week after they move in, as I do a intial inventory on day one and then a week later add anything else they notice a week later, and at that time serve them a S21 under its "normal procedure". And I have had nobody move out after six months, but anyway they can move out anyway after the fixed term without notice, whether or not I served them a S21.
          Disclaimer: What I say is either right or wrong. It may be advisable to check what I say with a solicitor. If he says I am right then I am right, unless he is wrong in which case I am wrong; but if he says I am wrong then I am wrong, unless he is wrong in which case I am right

          Comment


          • #6
            Originally posted by Mars Mug View Post
            Why? If the landlord has issued an S21 requiring possession of the property, why is the tenant then required to give notice?
            Because a section 21 notice does not bring a tenancy to an end.

            Comment


            • #7
              Originally posted by Lawcruncher View Post
              Because a section 21 notice does not bring a tenancy to an end.
              So how is the tenant supposed to know whether or not a landlord really wants him to leave on the expiry date of the S21? Is he supposed to wait until he gets a court summons?

              From a landlords point of view, what is the purpose of issuing an S21 so soon after the start of the tenancy? Is it not to be able to end the tenancy at the earliest opportunity, i.e., at six months?

              Comment


              • #8
                Originally posted by Lawcruncher View Post
                Because a section 21 notice does not bring a tenancy to an end.
                No more or less than notice from a tenant does?

                Do you know of any cases where a landlord has issued an S21 early such that the tenancy has passed beyond the required possession date, and subsequently taken the tenant to court for unpaid rent where notice to leave was not given by the tenant?

                Originally posted by mjbfire View Post
                but anyway they can move out anyway after the fixed term without notice, whether or not I served them a S21.
                My view is that because the S21 date has passed they can move out at any time after six months with no notice to the landlord, whereas without an S21 in effect they would be required to give one month’s notice.
                I also post as Moderator2 when moderating

                Comment


                • #9
                  This has been discussed at length in other threads.

                  As I see it it is like this:

                  What was the position before the Housing Act 1988 came into force? It was that a tenant on a periodic tenancy had to give notice to bring the tenancy to an end. Is there anything in the Housing Act 1988 that changed this? No.

                  Comment


                  • #10
                    Originally posted by Mrs Mug View Post
                    So how is the tenant supposed to know whether or not a landlord really wants him to leave on the expiry date of the S21? Is he supposed to wait until he gets a court summons?
                    1. By asking the LL.
                    Most LL will let the tenancy run into a SPT, unless the T has been a problem during the fixed term.

                    2. not necessarily. T can leave on or before the last day of the fixed term. Once T stays beyond that day, tenancy becomes SPT, and T must give the statutory notice.


                    Originally posted by Mrs Mug View Post
                    From a landlords point of view, what is the purpose of issuing an S21 so soon after the start of the tenancy? Is it not to be able to end the tenancy at the earliest opportunity, i.e., at six months?
                    Yes. LL is complying with law by giving the required notice. It doesn't have to be effected. But by issuing it well within the fixed term, LL can take action as necessary to remove problem tenants. Its called "being prepared".

                    Comment


                    • #11
                      Yes, the particular thread I am thinking of is this;

                      http://www.landlordzone.co.uk/forums...light=damocles

                      Which to me says that a landlord having properly prepared the S21 early, after deposit protection etc. can in effect start court proceedings after the 6 month period has ended to get a tenant out with no further notice. Isn’t that the whole purpose of the ‘early’ S21?

                      So I wonder if a tenant can simply leave without notice after that period and not be liable for any more rent payments beyond the day they leave. If the landlord takes the tenant to court for lost rent, isn’t the judge simply going to rule for the tenant because they complied with the S21 notice?
                      I also post as Moderator2 when moderating

                      Comment


                      • #12
                        Originally posted by Mars Mug View Post

                        No more or less than notice from a tenant does?
                        If a T gives notice, and changes their mind, T must inform LL and come to an agreement, else T will be liable for double rent from the end of that notice period till they leave (under the Distress for Rent Act)

                        Originally posted by Mars Mug View Post
                        Do you know of any cases where a landlord has issued an S21 early such that the tenancy has passed beyond the required possession date, and subsequently taken the tenant to court for unpaid rent where notice to leave was not given by the tenant?
                        That would happen only if T did not pay rent.


                        Originally posted by Mars Mug View Post
                        My view is that because the S21 date has passed they can move out at any time after six months with no notice to the landlord, whereas without an S21 in effect they would be required to give one month’s notice.
                        Wrong.
                        Your view and the law are two different things.

                        The T can leave on or before the last day of the fixed term without notice, but its common courtesy to let LL know that's what is intended. T is contractually bound to pay rent up to last day of fixed term.

                        If T stays on even one day after, the tenancy becomes SPT, and T MUST give the one month notice to end on the last day of the period (month or week or quarter) of the SPT, irrespective of whether or not the LL has issued a S21.

                        Comment


                        • #13
                          Originally posted by havensRus View Post
                          Yes. LL is complying with law by giving the required notice. It doesn't have to be effected. But by issuing it well within the fixed term, LL can take action as necessary to remove problem tenants. Its called "being prepared".


                          There are several reasons why a landlord might want to remove a tenant, good or bad. If for example a landlord wants to sell up after 15 months then they can get the tenant out with no further notice, (but may have to go to court). But it’s suggested here that if the tenant wants to leave after 15 months they are still required to give a month’s notice even though they are living on the ‘borrowed time’ of the S21.

                          Most tenants on this forum seem to struggle to have any contact with the landlord, and only have dealings with the agent, I would not be satisfied to hear an agent simply say it’s standard practice to protect against bad tenants.

                          Originally posted by havensRus View Post
                          If T stays on even one day after, the tenancy becomes SPT, and T MUST give the one month notice to end on the last day of the period (month or week or quarter) of the SPT, irrespective of whether or not the LL has issued a S21.
                          So the landlord is not required to give any further notice, but the tenant is?


                          In the ‘normal’ way an S21 is issued the tenant is told that possession is required after a particular date. When that day arrives and the tenant has not moved out are they still required to give a months notice?

                          Has any of this been tested in court?
                          I also post as Moderator2 when moderating

                          Comment


                          • #14
                            Originally posted by Mars Mug View Post
                            Which to me says that a landlord having properly prepared the S21 early, after deposit protection etc. can in effect start court proceedings after the 6 month period has ended to get a tenant out with no further notice. Isn’t that the whole purpose of the ‘early’ S21?
                            Yes. But you will find that as a matter of courtesy, LL will remind T well beforehand, that possession of property is required, at end of fixed term. Usually, only if T has been a problem during that fixed term.

                            Originally posted by Mars Mug View Post
                            So I wonder if a tenant can simply leave without notice after that period and not be liable for any more rent payments beyond the day they leave. If the landlord takes the tenant to court for lost rent, isn’t the judge simply going to rule for the tenant because they complied with the S21 notice?
                            the "after" is the issue. T can leave before or on last day of fixed term. SPT starts next day after fixed term. As I previously pointed out, once T stays on in SPT, the SPT rules apply.

                            Comment


                            • #15
                              Originally posted by Mars Mug View Post
                              But it’s suggested here that if the tenant wants to leave after 15 months they are still required to give a month’s notice even though they are living on the ‘borrowed time’ of the S21.
                              The S21 is a notice. The contract is the AST, and that's what matters. The terms and conditions of the AST carry on into the SPT - unless varied at the start of the SPT. There's no "borrowed time of S21". The tenancy is in a periodic phase, period being one month, one week or quarter, as defined by the original and still valid AST.

                              Originally posted by Mars Mug View Post
                              Most tenants on this forum seem to struggle to have any contact with the landlord, and only have dealings with the agent
                              Unfortunate. T is entitled by law to ask for and be given LL details.
                              I deal directly with my tenants, and even when I've used A to find tenants, its my AST that is used (in most cases), and even if its theirs, its my contact details on it.

                              Originally posted by Mars Mug View Post
                              In the ‘normal’ way an S21 is issued the tenant is told that possession is required after a particular date. When that day arrives and the tenant has not moved out are they still required to give a months notice?

                              Has any of this been tested in court?
                              1. Yes
                              2. Dunno. You could try it.

                              If a T stays on into SPT, I bill them for the month/weeks rent, and expect them to pay for it. If they don't, then I take appropriate action.

                              I think there's a bit of splitting hairs going on here, but I might be wrong....

                              Comment

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