Why issue an S21 at start of tenancy?

[Ericthelobster]

What's the reason for the oft-given advice that an S21 notice should be served on tenants on the day they move in (presumably, even when the landlord is not necessarily wanting them out after the initial 6-month period)? I used to think that this was just a device used by agents to give them the excuse of charging fees for producing a new AST agreement but I know it's more than that.

If you do issue the S21 like this, what happens if at 6 months you want the tenancy to continue on a periodic basis - can you just tear the thing up (and issue another one later on when you *do* want to evict the tenants?!)

[lawstudent]

Issuing a valid S21 at the outset is a sensible precaution. It remains valid indefinitely. At any future time you can ask your tenant to leave and, if he fails to do so, seek possession through the court without further formality.

[Editor]

Servicing a Section 21 Notice

When problems develop between a landlord and tenant (such as rent arrears) there is almost invariably a communication break-down. In other words, the tenant avoids contact with the landlord or agent at all costs.
Have you ever tried serving a notice under these circumstances?
Far better to do it on the move-in day when everyone is in a co-operative frame of mind, and tenants will rarely object. You can also have the tenant's confirmation signature to prove service.
Make sure, however, the notice is served AFTER the tenancy has been signed, otherwise it would not be legal.

[Andy Parker]

If an s21 is not acted upon the courts will decide that the tenancy has continued and the s21 is no longer valid.In normal circumstances I would not try using one say 3 months after the expiry date - I would issue another (with the appropriate notice) to be on the safe side.

[lawstudent]

Andy is wrong. There is no time limit on issuing proceedings. I know of one case where possession was granted under the accelerated procedure on the basis of a notice that had expired several years before.

[Andy Parker]

Lawstudent - There is no 'right' or 'wrong' about about it.All other things being equal the longer you leave an s21 after expiry the less likely it is that a court will accept it.I would not advise delaying any more than about a month without good reason.If you think about it,otherwise a tenant under a periodic tenancy could have the threat of repossession without further notice hanging over him like a sword of Damocles for years!

[lawstudent]

Andy, you are wrong. The act is crystal clear on this matter. Provided valid notice has been given, no matter how long ago, the court "shall make an order for possession".

[oaktree]

I think not. If the notice served at the beginning of the tenancy was a S21(1)b and the tenancy has subsequently lapsed into a periodic tenancy, I suspect a judge would take the view that as the landlord had continued to accept rent he had accepted the change in tenancy to a periodic thus the s21(1)b would be invalid.

If the landlord could perhaps prove that he had made efforts to regain possession he might rely on it but I think it would be stretching the act somewhat if it was left more than a month or two with no action having been taken

[Andy Parker]

Lawstudent - Leave an s21 too long and the court will chuck it out.Be warned. This is from personal experience.It is also horse sense but that comes with experience.You are a relative 'greenhorn' with this sort of thing (not your fault).

[lawstudent]

be amazed, oaktree - S21(2) specifically says that a S21(1)(b) notice will have effect "notwithstanding that on the coming to an end of the fixed term tenancy a statutory periodic tenancy arises"

[oaktree]

be amazed, oaktree - S21(2) specifically says that a S21(1)(b) notice will have effect "notwithstanding that on the coming to an end of the fixed term tenancy a statutory periodic tenancy arises"

Hardly amazing stuff is it? I think we all know (well, perhaps not all) that is in place to ensure that a landlord isn't disadvantaged simply because the AST has ended and the tenant is still in occupation despite the landlords wishes; otherwise what would be the point of serving a S21 within the two months immediately preceeding the end date of the tenancy if the notice was invalidated on the last day of the AST.

If your interpretation of S21 is correct, why would we need S21(4)a at all?

The question here was whether it would suffice after a tenancy had lapsed into a periodic that the landlord had accepted. How anyone could convince a judge that the S21(1)b they served perhaps 12 months ago, for a 6 month AST that has long ended, might be accepted to end a periodic tenancy that the landlord was quite happy with is beyond me.

In the 15 years that I have practised I have seen judges make some god awful decisions and even take it upon themselves to give discretion where they have no right to do so but I've never seen one completely ignore the guidelines of S21 to end a tenancy.

[Jennifer_M]

If a tenant is still in occupation after the s21 has expired then either the LL doesn't accept any money and take the tenant to court or he takes it as mesne profit and take the tenant to court no ?

If the landlord accepts rent and let it go along, could it be seen as the LL giving the tenant a new 6 months AST without written contract ?
As if the tenant's tenancy was terminated but a new one started 1 second after the 1st one expired ?

[oaktree]

This was the original question

If you do issue the S21 like this (at the beginning of the tenancy), what happens if at 6 months you want the tenancy to continue on a periodic basis - can you just tear the thing up (and issue another one later on when you *do* want to evict the tenants?!)

Still think you can end it with a S21(1)b?

[oaktree]

If a tenant is still in occupation after the s21 has expired then either the LL doesn't accept any money and take the tenant to court or he takes it as mesne profit and take the tenant to court no ?

The LL could still rely on the original S21(1)b, however I think the judge would question how long one might accept mesne profits if it went on too long without court action being instigated

If the landlord accepts rent and let it go along, could it be seen as the LL giving the tenant a new 6 months AST without written contract ?
As if the tenant's tenancy was terminated but a new one started 1 second after the 1st one expired ?

If both parties have done nothing to end the tenancy and there is no further agreement (written or verbal) then it will lapse into a statutory periodic tenancy - which can only be ended with a S21(4)a or Section 8

[lawstudent]

oaktree - you say "If your interpretation of S21 is correct, why would we need S21(4)a at all?". Well, I think that one CCJ held that by a strict interpretation of S21(2) you do not. It all hangs on the meaning of the word "may". (haven't got the reference to hand but you can find it with google).

You then say "How anyone could convince a judge that the S21(1)b they served perhaps 12 months ago, for a 6 month AST that has long ended, might be accepted to end a periodic tenancy that the landlord was quite happy with is beyond me". The answer to that is that provided the notice said "possession is required after ..." without saying how long after, it would appear to remain valid for ever. And there is no saying that the LL was "happy" with the periodic tenancy just because he delayed taking court action.

Finally, you say "In the 15 years that I have practised I have seen judges make some god awful decisions and even take it upon themselves to give discretion where they have no right to do so but I've never seen one completely ignore the guidelines of S21 to end a tenancy." Quite so. But since the guidelines say nothing about time delay, there is nothing here for them to ignore.