L using break clause; is the s.21(1)(b) Notice defective?

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    L using break clause; is the s.21(1)(b) Notice defective?

    Hi,

    I have rented my property through an agent. The tenants signed a 12 month tenancy agreement from the 14th Nov 2009 to 14th November 2010. There is a six month break clause. I asked the agents to serve notice early nearly six months into the tenancy.

    A section 21b notice was hand delivered to the tenants on the 11th May 2010 but was dated 12 May 2010. The notice asked for possession on the 11th July 2010 or at the end of the period of the tenancy which will end next after the expiration of two months from the service upon this notice.

    I have been told by a couple of people that this notice may not be valid because it has not given a FULL two months notice. Should the notice dated 12th May asked the tenants for possession on the 12th July?

    If this notice is invalid I need to get onto the letting agents and ask them to issue it again.

    Thanks

    David

    #2
    Originally posted by happytown View Post

    I have been told by a couple of people that this notice may not be valid
    What do the letting agents say?
    Allow tenants to protect their own deposits. I want free money when they do it wrong

    Comment


      #3
      The notice is invalid. Get it done again.



      Freedom at the point of zero............

      Comment


        #4
        Originally posted by thesaint View Post
        What do the letting agents say?
        Letting agents have told me not to worry, also if there is a discrepancy tenants normally do not question dates.

        I am not convinced letting agents know what they are doing. If in the worse cause scenario tenants do not move and I have to go to court, judge may order me to serve notice again because first notice was invalid, wasting another 2 months!

        David

        Comment


          #5
          Originally posted by happytown View Post
          A section 21b notice was hand delivered to the tenants on the 11th May 2010 but was dated 12 May 2010. The notice asked for possession on the 11th July 2010 or at the end of the period of the tenancy which will end next after the expiration of two months from the service upon this notice.
          The notice is likely to be invalid, as the date ("on the 11th July 2010"); does not give 2 months minumum notice, and; contradicts the saving clause at the end, leading to an ambiguous meaning.

          Originally posted by happytown View Post
          Letting agents have told me not to worry, also if there is a discrepancy tenants normally do not question dates.

          I am not convinced letting agents know what they are doing. If in the worse cause scenario tenants do not move and I have to go to court, judge may order me to serve notice again because first notice was invalid, wasting another 2 months!

          David
          You are correct. Do not rely on agents.

          Re-serve a valid s.21 notice -taking the correct legal advice to do so:
          (1) Employ a specialist LL & T solicitor (can be expensive), or
          (2) DIY - Join a reputable LL's association, e.g. NLA, RLA; and they will advise on how to fill in the paperwork over the phone, and guide you through the process. Membership allows access to other LL/T stuff as well, e.g. agreements, documents, advice, etc.
          The information in my posts is provided 'as is'. This is not intended to be legal advice. Legal or other professional advice should be sought before acting or relying on this information or any part of it. I will not be held responsible for loss or damage arising from errors in the information or the way in which a person uses the information on this . For more information on your query use the '' link at the top of this page. Agreements, Forms & Notices can be found .

          Comment


            #6
            Originally posted by happytown View Post
            The tenants signed a 12 month tenancy agreement from the 14th Nov 2009 to 14th November 2010.
            Meaning the fixed term is twelve months and one day? Or do you mean the term is twelve months from 14th November 2009 to 13th November 2010?

            A section 21b notice was hand delivered to the tenants on the 11th May 2010 but was dated 12 May 2010. The notice asked for possession on the 11th July 2010 or at the end of the period of the tenancy which will end next after the expiration of two months from the service upon this notice.

            I have been told by a couple of people that this notice may not be valid because it has not given a FULL two months notice.
            But it does give a full two months, if the notice says you seek possession after 11th July. A full month is not, say, 1st January to 1st February, or 15th January to 15th February inclusive; that is one month and one day. Exactly one month is 1st to 31st January, or 15th January to 14th February inclusive.

            Also, notice served within the fixed term does not have to expire at the end of a rental period (it's not a periodic tenancy therefore there are no periods).

            However, other things may make the notice invalid. Such as:
            • It should be a s.21(1)(b) notice, not a s.21b notice
            • The notice should seek possession 'after', not 'on', the notice expiry date
            • The deposit must be protected before a s.21 notice is served

            Comment


              #7
              the section 21(1)(b) notice says
              "we your landlords ....hereby give you notice that possession is required by your landlords of the premises ..... which you hold as tenants on the 11th July 2010...

              Does this mean tenants have to give give us the property on the 11th July or after the 11th July (the morning of the 12th)?

              Comment


                #8
                A. When exercising a right to break the break notice must comply with the terms of the break clause.

                B. When serving a notice under S. 21 HA 1988 the notice must comply with S. 21.

                Sometimes the requirements are incompatible so that it is necessary to serve two separate notices. Until we know what the break clause says and what the notice says we cannot comment on the effect of the notice.

                Comment


                  #9
                  Originally posted by Lawcruncher View Post
                  A. When exercising a right to break the break notice must comply with the terms of the break clause.

                  B. When serving a notice under S. 21 HA 1988 the notice must comply with S. 21.

                  Sometimes the requirements are incompatible so that it is necessary to serve two separate notices. Until we know what the break clause says and what the notice says we cannot comment on the effect of the notice.
                  The break clause says in relation to early termination contract "the landlord may bring the tenancy to an end any time before the expiry of the term but not before sixth months from the commencement date of this agreement whichever shall be later to the tenant not less than two months written notice..."

                  Comment


                    #10
                    Originally posted by happytown View Post
                    the section 21(1)(b) notice says
                    "we your landlords ....hereby give you notice that possession is required by your landlords of the premises ..... which you hold as tenants on the 11th July 2010...
                    Based on this wording, the section 21(1)(b) is invalid as it does not give a minimum 2 months notice.

                    Originally posted by happytown View Post
                    Does this mean tenants have to give give us the property on the 11th July or after the 11th July (the morning of the 12th)?
                    The section 21(1)(b) is a notice only; it will not give the LL possession. If the tenant remains after notice expiry, the LL will need to make a claim for possession.

                    The tenant may also vacate the property at any time during or after the notice period.
                    The information in my posts is provided 'as is'. This is not intended to be legal advice. Legal or other professional advice should be sought before acting or relying on this information or any part of it. I will not be held responsible for loss or damage arising from errors in the information or the way in which a person uses the information on this . For more information on your query use the '' link at the top of this page. Agreements, Forms & Notices can be found .

                    Comment


                      #11
                      Originally posted by happytown View Post
                      The tenants signed a 12 month tenancy agreement from the 14th Nov 2009 to 14th November 2010.
                      Shouldn't the notice be after 14th July, anyway.

                      Comment


                        #12
                        Originally posted by Mrs Mug View Post
                        Shouldn't the notice be after 14th July, anyway.
                        Yes- hence the discussion about the 'saving' words or at the end of the period of the tenancy which will end next after the expiration of two months from the service upon this notice and whether they will rescue the Notice's validity.
                        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
                          Yes- hence the discussion about the 'saving' words or at the end of the period of the tenancy which will end next after the expiration of two months from the service upon this notice and whether they will rescue the Notice's validity.
                          I don't understand. OP says the fixed term is 12 months from 14th November 2009, with a six month break clause. Why would a s.21(1)(b) notice served in May 2010 have to expire at the end of a period, when there are no periods?

                          Comment


                            #14
                            Even within a fixed-term tenancy, the rent is periodic.
                            But, yes, I agree that a s.21 Notice associated with a break-clause has to specify an operative date permitted by the Letting Agreement concerned.
                            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
                              Even within a fixed-term tenancy, the rent is periodic.
                              But the rent payment date is not the same as a rental period; as you know, in a periodic tenancy, it is quite possible for the periods to run, say, 12th - 11th of the month, but with rent due on, say, the 15th of the month.

                              Originally posted by jeffrey View Post
                              But, yes, I agree that a s.21 Notice associated with a break-clause has to specify an operative date permitted by the Letting Agreement concerned.
                              Does this go back to what lawcruncher said earlier?
                              A. When exercising a right to break the break notice must comply with the terms of the break clause.
                              B. When serving a notice under S. 21 HA 1988 the notice must comply with S. 21.
                              Sometimes the requirements are incompatible so that it is necessary to serve two separate notices.
                              And OP said:
                              The break clause says in relation to early termination contract "the landlord may bring the tenancy to an end any time before the expiry of the term but not before sixth months from the commencement date of this agreement whichever shall be later to the tenant not less than two months written notice..."
                              Nothing about having to expire on a date calculated according to the rent payment date.

                              Comment

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