AST- has L renewed it, or can he evict me?

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    AST- has L renewed it, or can he evict me?

    Hi everybody

    I'm new to this forum...I'll explain my situation with the hope that some good people might be able to help me.

    I've been living in the current property for 12 months. Since the 8th of Aug 2009 to be precise. The monthly rent for the period Aug-09 - Aug-10 was £1,300 pcm. The property is located in London, the landlord is UK domiciled.

    Around the renewal date, the Agency in charge of the contracts asked me if I wanted to renew the Tenancy, I answered affirmatively. The Landlord also contacted me by email asking if I wanted to say. I also replied affirmatively. We agreed to share the renewal Agency fees (£170 in total).

    Around the 10th of Aug I received the new contract via mail which is valid for the period Aug-10 - Aug-11. Like in the previous contract we requested a break-out clause of 6 months (each party can serve a notice of two months after a minimum term of 4 months, = 6 months).

    The problem is that I know that the Landlord now wants to sell the property and she wants us out of her house.

    I have a couple of emails from the Landlord with her statement that the wanted to renew the Tenancy (around the 8th Aug) and she was asking me if I'd pay half of the renewal fees (we are using a London estate agent). So I did. I paid my share of the Agency fees (£85) via bank transfer and posted the signed contract to the Agency within a few days.

    A few weeks passed and nothing happens. No sign of my copy of the contract. I was expecting the Estate agent to send me back a copy of the contract. Yesterday I phoned the Agency and asked them why I haven't received my copy of the contract yet. The lady on the phone said that they just received it (it was franked 2nd class, it took around 1 week to cover 5 miles!). I told the estate agent that I think the Landlord has changed her mind and she wants to sell the property (and wants us out of her property). She checks her records and she says that the Landlord hasn't signed her copy yet, but she reassured me that the contract I signed is binding and that the Landlord cannot kick me out for at least another 6 months then (as per break out clause).

    What I'm failing to understand is:

    1. How can such statement be true (i.e. he Landlord cannot kick me out) when she hasn't signed her part of the contract yet? It is clear to me that she changed her mind at some point after she asked me to renew the contract, probably she wants to invest the money that she will get from the flat somewhere else (she mentioned that if she doesn't sell if by March she will have to pay some tax for the next 5 years, not sure what it is), she even asked me to share the fees etc, and she clearly wanted us to stay for another 12 months), but at some point she changed her mind and wanted to sell the flat. Perhaps she changed her mind when she found out about the tax implications? (i.e. the 5 year thing).

    2. The reason why I moved into this property in the first place is that it is big enough to have a baby (2 bedroom flat with garden). In fact everything was planned, 3 months ago we had a fab baby girl. So the Landlord knows that she's putting a lot of stress on us because with a small baby it is not easy to find a property in a short period of time. A few months ago we bought some nice furniture for the (at that time) future baby and it is just a hassle now to move everything out. I feel cheated!

    We also agreed the new rent (£1,365PCM) for the period Aug-10 - Aug-11, I already changed my standing order and the new amount has regularly been paid on 8th Aug 2010. I have everything documented in my work emails.

    Can I really be sure that it is my right to stay for another 6 months given her intent and statements?

    I'd appreciate your help
    Thanks

    #2
    Originally posted by parajba View Post

    Can I really be sure that it is my right to stay for another 6 months given her intent and statements?
    It is possible to create a contract without anyone signing a paper contract, and it's possible that this is what has happened here.

    However, regardless of whether you have or haven't entered into a new fixed term contract, the procedure to evict an AST tenant is quite lengthy (at least 4 months or longer) and from the sound of it your LL hasn't even started it yet. She would firstly have to serve a s.21 notice, then wait at least two months, then apply to the court for a possession order, then wait weeks/months for a hearing (because you could contest on the basis that you agreed a new fixed term, by showing the emails, showing you paid the admin fee and the increased rent in the new contract, showing the contract you signed). Even if she did obtain a possession order, she'd then have to wait weeks to get a bailiff to enforce it.

    Anyway, what has the LL actually said to you about wanting you to leave? Are you sure she isn't just planning to sell with you as 'sitting' tenants? Has she served a s.21 notice?

    BTW, a week for 2nd class post isn't that unusual! Use first class for anything important.

    Comment


      #3
      Originally posted by westminster View Post
      It is possible to create a contract without anyone signing a paper contract, and it's possible that this is what has happened here.

      However, regardless of whether you have or haven't entered into a new fixed term contract, the procedure to evict an AST tenant is quite lengthy (at least 4 months or longer) and from the sound of it your LL hasn't even started it yet. She would firstly have to serve a s.21 notice, then wait at least two months, then apply to the court for a possession order, then wait weeks/months for a hearing (because you could contest on the basis that you agreed a new fixed term, by showing the emails, showing you paid the admin fee and the increased rent in the new contract, showing the contract you signed). Even if she did obtain a possession order, she'd then have to wait weeks to get a bailiff to enforce it.

      Anyway, what has the LL actually said to you about wanting you to leave? Are you sure she isn't just planning to sell with you as 'sitting' tenants? Has she served a s.21 notice?

      BTW, a week for 2nd class post isn't that unusual! Use first class for anything important.

      Hi Westminster,

      Many thanks for your kind reply. Much obliged. Please find the answers to your questions below.

      1. Anyway, what has the LL actually said to you about wanting you to leave?

      The LL offered me to buy the flat first (given the circumstances), but I'm not interested (not worth the money she's asking). She then said that she wouldn't kick us out on the street, that we needn't worry etc, but I don't trust her as she changed her mind (possibly lied) already once (i.e. AST renewal). I have the feeling that she will mail me the notice in the next few days.

      2. Are you sure she isn't just planning to sell with you as 'sitting' tenants?

      We haven't discussed this yet. I asked her why can't we just stay until the 6 minimum term (as per new contract) but she hasn't replied yet. When she gets back to me with either a. Notice (s21?) or b. confirmation whether we can stay until the 6-month term, I'll find out...

      3. Has she served a s.21 notice?

      Not yet (I guess she has to mail me the notice with recorded delivery).

      4. BTW, a week for 2nd class post isn't that unusual! Use first class for anything important

      Agreed, it was a pre-paid envelope from the Estate Agency.

      I have an additional question...

      The scenario you described below seems like a hassle given the little baby we just had (I'm not a solicitor...I work in a bank, I would have to take time off work to go to court and present my case?) given the little baby we just had...depending on the court outcome I wouldn't want to end up with a huge solicitor bill in case I loose the case...? Perhaps I'm just a little bit ignorant on the subject... (Definitely the case!)

      Thanks again for your help!

      Comment


        #4
        An update, the LL hasn't signed the new AST...

        What do I have now, a rolling contract or a periodic contract? what's the difference? ...and what's the notice period?

        In the previous (signed) AST the notice was 2 months.

        Comment


          #5
          The property is located in London, the landlord is UK domiciled.
          If Landlord has not given you an address in England & Wales to "serve notices" then the rent is not due: No, really, you don't have to pay rent - but you should keep the rent, probably in a separate account, for the very-few-days before he gives you an address when you explain why you're not paying...
          (Landlord & Tenant ACt 1987, section 48)..


          Cheers!


          Artful
          I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

          Comment


            #6
            Originally posted by theartfullodger View Post
            If Landlord has not given you an address in England & Wales to "serve notices" then the rent is not due
            The contract which hasn't been returned is a renewal contract. Most likely OP was given a contract containing an address for serving notices when the tenancy originally began.

            Comment


              #7
              Originally posted by parajba View Post
              An update, the LL hasn't signed the new AST...

              What do I have now, a rolling contract or a periodic contract? what's the difference? ...and what's the notice period?

              In the previous (signed) AST the notice was 2 months.
              The situation is not completely black and white.

              As I said before, arguably, a new fixed term of 6 months has been created, even without the LL's signature on the contract; because you were offered the renewal, accepted it, and are now paying the increased rent agreed. If the LL disputes this, and tried to evict you via s.21 before the end of the 6 months, it would up to the court to decide on this point.

              The alternative scenario would be that you have a periodic AST; this is the same as a 'rolling contract'. The s.21 notice period for a periodic tenancy is at least two months and it must also expire at the end of a rental 'period'. The periods begin the day after the fixed term expired.

              For example, if the original contract began 8th August 2009, then the fixed term expired on 7th August 2010, and the rental periods would run 8th - 7th of the month - the s.21 would have to expire on the 7th of the month.

              Therefore, let's say you had a periodic tenancy and the LL served notice today 29th August 2010 - the earliest the notice could expire would be 7th November 2010.

              But, from the sound of it, you have enough evidence to argue that the fixed term was renewed - so if LL serves a s.21 which expires before the end of the six months, you could argue that the notice is invalid as it cannot expire before the end of the new fixed term.

              BTW, if you paid a deposit, the deposit must be protected before the LL can serve a valid s.21 notice. And if the contract has been renewed, the protection should also be renewed...

              Originally posted by parajba View Post
              The scenario you described ... seems like a hassle given the little baby we just had (I'm not a solicitor...I work in a bank, I would have to take time off work to go to court and present my case?) given the little baby we just had...depending on the court outcome I wouldn't want to end up with a huge solicitor bill in case I loose the case...? Perhaps I'm just a little bit ignorant on the subject... (Definitely the case!)
              In the event that LL serves a s.21 and goes on to apply for possession, you can obtain free advice at a CAB or Shelter, or a Law Centre (and I suggest you seek advice now, and show them all your paperwork, e.g. email from agent offering renewal, etc). It would not be unusual for both parties to represent themselves at the hearing.

              Comment


                #8
                Originally posted by theartfullodger View Post
                If Landlord has not given you an address in England & Wales to "serve notices" then the rent is not due: No, really, you don't have to pay rent - but you should keep the rent, probably in a separate account, for the very-few-days before he gives you an address when you explain why you're not paying...
                (Landlord & Tenant ACt 1987, section 48)..

                Cheers!

                Artful
                Apologies for the misunderstanding, but I do have an English address.

                Originally posted by westminster View Post
                The contract which hasn't been returned is a renewal contract. Most likely OP was given a contract containing an address for serving notices when the tenancy originally began.
                Correct.

                Originally posted by westminster View Post
                The situation is not completely black and white.

                As I said before, arguably, a new fixed term of 6 months has been created, even without the LL's signature on the contract; because you were offered the renewal, accepted it, and are now paying the increased rent agreed. If the LL disputes this, and tried to evict you via s.21 before the end of the 6 months, it would up to the court to decide on this point.

                The alternative scenario would be that you have a periodic AST; this is the same as a 'rolling contract'. The s.21 notice period for a periodic tenancy is at least two months and it must also expire at the end of a rental 'period'. The periods begin the day after the fixed term expired.

                For example, if the original contract began 8th August 2009, then the fixed term expired on 7th August 2010, and the rental periods would run 8th - 7th of the month - the s.21 would have to expire on the 7th of the month.

                Therefore, let's say you had a periodic tenancy and the LL served notice today 29th August 2010 - the earliest the notice could expire would be 7th November 2010.

                But, from the sound of it, you have enough evidence to argue that the fixed term was renewed - so if LL serves a s.21 which expires before the end of the six months, you could argue that the notice is invalid as it cannot expire before the end of the new fixed term.

                BTW, if you paid a deposit, the deposit must be protected before the LL can serve a valid s.21 notice. And if the contract has been renewed, the protection should also be renewed...

                In the event that LL serves a s.21 and goes on to apply for possession, you can obtain free advice at a CAB or Shelter, or a Law Centre (and I suggest you seek advice now, and show them all your paperwork, e.g. email from agent offering renewal, etc). It would not be unusual for both parties to represent themselves at the hearing.
                Thanks for all your useful comments!

                Assuming we have a periodic contract now, what exactly does she / do I need to do with the deposit which was paid 13 months ago (at the beginning of the original AST)? I haven't done anything about it, and haven't heard anything on the subject from my LL either...Would this point again a valuable point (in my favour) at the (potential) hearing?


                Much obliged!

                Comment


                  #9
                  Originally posted by parajba View Post
                  Assuming we have a periodic contract now, what exactly does she / do I need to do with the deposit which was paid 13 months ago (at the beginning of the original AST)? I haven't done anything about it, and haven't heard anything on the subject from my LL either...Would this point again a valuable point (in my favour) at the (potential) hearing?
                  The LL has two basic obligations in respect of deposit protection (when the tenancy is an assured shorthold, in England/Wales, rent less than £2,083.33 pcm, non-resident LL):
                  1. protect the deposit with one of the three approved deposit schemes;
                  2. provide the T with the 'prescribed information' (essentially, details of which deposit scheme is holding the deposit, etc).


                  In the event that the LL has fulfilled his obligations as above (which sounds not to be the case here), then the LL does not need to re-protect the deposit if the tenancy becomes periodic; but he does if the fixed term is renewed. (In your case it's not black and white as to the tenancy type, therefore the same uncertainty applies as to whether re-protection would apply).

                  If the LL has not complied with his obligations to protect the deposit/provide prescribed information before serving a s.21 notice (whether the tenancy is periodic or not), then the s.21 notice is automatically invalid. This means that any application for possession based on the invalid s.21 will fail.

                  So, the answer to your question is yes, if the LL has failed to fulfill his obligations this would be a very significant point in your favour (in terms of delaying any attempt to evict you via s.21); I'm no expert on possession procedure, but I think it's possible there wouldn't even be a hearing if the LL's paperwork submitted with the application did not include evidence of deposit protection. Either way, the application would be struck out and LL would have to go back to square one, protect the deposit, then serve a valid s.21 and wait another two months for it to expire.

                  For now, don't ask the LL about deposit protection.

                  Instead, check your original tenancy contract - if it mentions "The Dispute Service"/"TDS" (one of the schemes), then this may be the required 'prescribed information' as the TDS requires it to be included in the contract. Then call each of the three schemes and try to find out whether they are protecting your deposit. http://www.direct.gov.uk/en/HomeAndC...cies/DG_189120

                  At the end of the day, the LL can, ultimately, evict you (assuming all paperwork in order) via s.21 - so if she is determined the best you can hope for is to delay the process; either by arguing that you agreed a new 6 month term and/or that the deposit wasn't properly protected at the time of service of the s.21. As LL hasn't even served a s.21 notice yet, there is very little likelihood she could obtain a possession order before Christmas (that's worst case scenario, if the court disagreed that a new 6 month term had been created).

                  Bear in mind that if you make life difficult for the LL you may not get a glowing reference from her.

                  Comment


                    #10
                    Westminster,

                    Thanks for the kind reply, you are very nice!

                    Quick question, we are also looking around for a property (given what happened we decided that we just might buy something instead of renting!), we saw a property that we really like, I already have a letter of agreement in principle for the mortgage from my bank (24 hours, that was a quick turnaround).

                    Given that the LL hasn't sign the renewal yet (which was due on 7th Aug 2010), and we did sign it, paid £85 in renewal fees to agent, what happens if she now turns around and says that she is going to sign it (because she's undecided whether she wants to sell the property or keep renting it, in which case she more than happy for us to stay).

                    The problem here is that:

                    1. I paid £85 in renewal fees to the Estate Agent, but I don't have a valid (signed) contract yet (1st problem)
                    2. Assuming I now want to leave asap (because I found an alternative property, either buying or renting), what's my notice period in the case the LL now signs the renewal? Can I still invoke the 2 months of the rolling contract (that all of a sudden is convenient).

                    To me it's a bit unclear. She hasn't signed the renewal, we did. Surely there must be a limit in terms of number of days passed since I signed (but she hasn't) that invalidates the renewal all together so that additional signatures are invalid? I can't wait forever and let her call all the shots, can I? ...Do we then have to stay until the 6 months term or shall the 2 months apply...?

                    Westminster, if you are ever in Putney I'll buy you a coffee! Out of interest what's your profession? How about you know so much?

                    Comment


                      #11
                      The landlord can hold you to the new fixed term, as you signed the contract.
                      Unless you created a clause that she needs to sign on or before "x" date?

                      The agent has told you that you have a valid new fixed term.
                      Allow tenants to protect their own deposits. I want free money when they do it wrong

                      Comment


                        #12
                        Parajba. I am sure Westminster will be along shortly and give you her advice, however, I will throw my comments in...

                        Do you have anything in writing to say that the LL wants you out in a certain timescale? The agent has your signature on a document saying you will stay until at least January.

                        If you have proof that the landlord wants you out, I would just give statutary notice - being one month which must end on the same day of the month as your last AST ended. Without that proof, you are probably tied until January providing the break clause is not exclusive to the landlord.

                        Comment


                          #13
                          Originally posted by parajba View Post
                          Given that the LL hasn't sign the renewal yet (which was due on 7th Aug 2010), and we did sign it, paid £85 in renewal fees to agent, what happens if she now turns around and says that she is going to sign it...
                          You've already committed yourself by signing the contract. That commitment isn't dependent upon or affected by whether the LL signs the contract or not; the LL can hold you to the contract.

                          The problem here is that:

                          1. I paid £85 in renewal fees to the Estate Agent, but I don't have a valid (signed) contract yet (1st problem)
                          As I've explained already, a signature on a contract isn't the only way to create a contract.

                          2. Assuming I now want to leave asap (because I found an alternative property, either buying or renting), what's my notice period in the case the LL now signs the renewal? Can I still invoke the 2 months of the rolling contract (that all of a sudden is convenient).
                          The T's notice under a statutory periodic tenancy is at least one month, to end at the end of a rental period. LL must give two months'.

                          If the LL chooses to hold you to the contract (regardless of her signing it or not), then no, you wouldn't be able to give notice to end the tenancy before the end of the new fixed term.

                          A week ago you felt cheated because you thought the LL might serve notice when you'd just signed a new contract. Now, you say you want out.

                          Be very careful what you put in writing to the agent/LL, because, if you, say, give notice to quit (hoping LL will ignore the contract you've signed, and accept the notice), this could then undermine you subsequently claiming that a new fixed term was agreed/created (should it become suddenly 'convenient' to stay put). In short, you can't have it both ways, depending on what happens to be more convenient at the time.

                          I don't know what to suggest to resolve the uncertainty the LL has created, but , overall, there is far more evidence in favour of a six month renewal having been created. It might help if you make your mind up as to whether you want to stay or go.

                          Also bear in mind that buying property can take months; all sorts of unexpected issues may arise, and many sales fall through.

                          To me it's a bit unclear. She hasn't signed the renewal, we did. Surely there must be a limit in terms of number of days passed since I signed (but she hasn't) that invalidates the renewal all together so that additional signatures are invalid?
                          Your signature remains valid, regardless of LL signing or not.

                          Out of interest what's your profession? How about you know so much?
                          I'm a landlord. I've learnt from experience, from the forum, and from reading landlord/tenant law blogs.

                          Comment


                            #14
                            Hi Westminster,

                            thanks again for the useful tips.

                            I didn't know that the T's notice is one month whereas the LL's notice is 2 months.

                            Given that I now want to move out (I don't want to wait, given that I have an infant I'd rather move out asap and secure another acco, I woulnd't want to spend the Christmas or the months just before Christmas searching for a new flat). This situation is very messy, and it's all the LL's fault. For the benefit of the little baby I want to get out of here asap and relax in a new flat. This situation is putting a lot of stress on mum and dad (myself).

                            So it looks like my signature is still valid and that the LL can do whatever she wants now? It's like an open-ended contract! If I find a suitable property I'll give notice straight away. Can then the LL say that we signed the contract hence we have to stay until the 6 months term? But at the same time she can give me notice and evict me in 2 months. This does not make sense...It's cheating.

                            Another comment. Upon renewal we agreed the new rent (£1,345). The old one was £1,300. I changed my direct debit and paid the amount for September. Given that there's no contract can I now detract the £65 I overpaid when the next rent is due? If it's a rolling contract then the previous rent must apply?

                            To be honest I don't want to go to court, I don't have the energy for this. I have a demanding little baby (they all are...), a busy job...This will serve me as a lesson. Never trust anybody, in particularly if they are solicitors. Yes, the LL is a solicitor. Good example I would say. What a society we live in.

                            Comment


                              #15
                              Originally posted by parajba View Post
                              If I find a suitable property I'll give notice straight away. Can then the LL say that we signed the contract hence we have to stay until the 6 months term?
                              Yes, she can hold you liable for rent for the full term.

                              But at the same time she can give me notice and evict me in 2 months.
                              No, because you have ample written evidence to argue that a new fixed term was agreed/created. I think it's unlikely the LL would succeed in obtaining a possession order via s.21 route before the end of the six months if you contested the application. There's also the question mark over deposit protection, and it must be properly protected before LL can serve a valid s.21 notice.

                              To be honest I don't want to go to court....This will serve me as a lesson. Never trust anybody, in particularly if they are solicitors. Yes, the LL is a solicitor. Good example I would say. What a society we live in.
                              I'm afraid I don't share your poor opinion of the legal profession.

                              You seem to think the law ought to work in your favour whichever stance you choose to adopt - whether it's holding LL to the contract signed (your original Q), or whether you decide it's more convenient to get out of the contract. You can't have it both ways.

                              And the fact remains that all the LL has said is that she wants to sell the flat, and that she has no intention of "kicking you out". Nor has she served notice on you, so as things stand there's very little to indicate that she has any plans to try to evict you or argue that the fixed term wasn't renewed.

                              You could always try giving notice and see whether LL accepts it - if she does, fine, if she refuses, then at least you'll know for sure where you stand.

                              Comment

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