Tenants want new AST agreement after section 21 notice expires

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  • Tenants want new AST agreement after section 21 notice expires

    Hi all,

    I have a couple on an AST. the fixed term ended on 01/10/2010. I tried to raise rent but they did not agree with this. I served s21 notice 22/10/2010 which expires on 1/1/2011. So tenants have more than two months notice to leave. But now tenants have changed mind and want to stay and they will pay more rent. My question is can i know start a new tenancy agreement for another 6 months with this couple from the end of the s21 notice, i.e. 1/1/2011 ?

    And has my procedures for serving notice been legal too?

    Thanks in advance for your help!

  • #2
    What date did the lease actually commence?
    [I]The opinions I give are simply my opinions and interpretations of what I have learnt, in numerous years as a property professional, I would not rely upon them without consulting with a paid advisor and providing them with all the relevant facts[I]

    Comment


    • #3
      Originally posted by kadir169 View Post
      I have a couple on an AST. the fixed term ended on 01/10/2010. I tried to raise rent but they did not agree with this. I served s21 notice 22/10/2010 which expires on 1/1/2011. So tenants have more than two months notice to leave. But now tenants have changed mind and want to stay and they will pay more rent. My question is can i know start a new tenancy agreement for another 6 months with this couple from the end of the s21 notice, i.e. 1/1/2011 ?
      Do you actually want to give them another 6 month agreement? You're aware there's no obligation on you to do so at the end of a fixed term?; you just let the contract continue on a 'periodic' tenancy with no further paperwork necessary. The S21 you've issued has no effect unless you choose to follow up by applying to the courts for repossession. But it leaves the boot well and truly on your foot in that you could 'action' that S21 whenever you choose. No disadvantage to you per se, but your tenants might not appreciate living under this so-called 'Sword of Damocles'. Maybe you'd consider it their just desserts for messing you about over the rent rise? Maybe they'll quit as a result?

      I don't know how you go about legally 'revoking' an already-issued S21 to the satisfaction of the tenants, if that's the preferred way forward.

      FYI it's one of the rules for service of an S21 notice that it can only be done after a tenancy has started; therefore presumably if you do choose to issue a new tenancy agreement, then it will negate your current S21 notice which predates it.

      Comment


      • #4
        Originally posted by Ericthelobster View Post
        Do you actually want to give them another 6 month agreement? You're aware there's no obligation on you to do so at the end of a fixed term?; you just let the contract continue on a 'periodic' tenancy with no further paperwork necessary. The S21 you've issued has no effect unless you choose to follow up by applying to the courts for repossession. But it leaves the boot well and truly on your foot in that you could 'action' that S21 whenever you choose. No disadvantage to you per se, but your tenants might not appreciate living under this so-called 'Sword of Damocles'. Maybe you'd consider it their just desserts for messing you about over the rent rise? Maybe they'll quit as a result?

        I don't know how you go about legally 'revoking' an already-issued S21 to the satisfaction of the tenants, if that's the preferred way forward.

        FYI it's one of the rules for service of an S21 notice that it can only be done after a tenancy has started; therefore presumably if you do choose to issue a new tenancy agreement, then it will negate your current S21 notice which predates it.
        Eric, I do not think there is an established legal procedure for revoking an already issued s21, since (as you have explained) there is no compulsion to act upon such a notice in any case. I think the Ts will just have to take the LL's word for it that he will not act upon it - perhaps a letter to this effect may placate them? If they are that bothered about it, they will sign a new agreement (thus invalidating the s21) and if one/boths sides do not wish to commit to that, then the theoretical uncertainty is part of the price they pay for staying. They don't have to stay, do they?
        'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

        Comment


        • #5
          You do not have to wait till expiry of the s.21 notice to sign a new contract. If you sign a new contract, this will replace the existing contract and 'cancel' the s.21 with immediate effect.

          As regards validity of the s.21 served:
          • did the fixed term commence on the 2nd of the month?
          • was the notice expiry date given as "after 1st January 2011"?
          • if a deposit was paid by T, was it protected and the prescribed info provided to T at the time of service?

          Comment


          • #6
            Originally posted by westminster View Post
            You do not have to wait till expiry of the s.21 notice to sign a new contract. If you sign a new contract, this will replace the existing contract and 'cancel' the s.21 with immediate effect.

            As regards validity of the s.21 served:
            • did the fixed term commence on the 2nd of the month?
            • was the notice expiry date given as "after 1st January 2011"?
            • if a deposit was paid by T, was it protected and the prescribed info provided to T at the time of service?
            Hi Westminster

            The fixed term started on the 1st of the month, (1/10/2009)
            the s21 notice was give as "after 1st january 2011"
            the deposit was protected and they were given info as required

            Would this be ok? I appreciate everyone's advice.

            Cheers
            Kadir169

            Comment


            • #7
              Originally posted by MrJohnnyB View Post
              What date did the lease actually commence?
              Hi MrJohnnyB,

              Lease commened on 1/10/2009.

              cheers

              Comment


              • #8
                Originally posted by kadir169 View Post
                The fixed term started on the 1st of the month, (1/10/2009)
                Therefore, the last day of the fixed term was 30th September 2010, (not 1st October, because 1st Oct '09 to 1st Oct '10 inclusive = one year + one day; there aren't 2 x 1st Octobers in a year).
                the s21 notice was give as "after 1st january 2011"
                The s.21 notice served on 22nd October 2010 is invalid, because, although it does give T at least two months, it doesn't expire at the end of a tenancy period. The periods in a periodic tenancy begin the day after the fixed term expired, and their length is based on the frequency with which rent is payable. Assuming this is monthly, the periods run 1st - last day of the month, so your notice should have expired "after 31st December 2010".

                the deposit was protected and they were given info as required
                You got this bit right, though.

                Comment


                • #9
                  Originally posted by westminster View Post
                  Therefore, the last day of the fixed term was 30th September 2010, (not 1st October, because 1st Oct '09 to 1st Oct '10 inclusive = one year + one day; there aren't 2 x 1st Octobers in a year).
                  The s.21 notice served on 22nd October 2010 is invalid, because, although it does give T at least two months, it doesn't expire at the end of a tenancy period. The periods in a periodic tenancy begin the day after the fixed term expired, and their length is based on the frequency with which rent is payable. Assuming this is monthly, the periods run 1st - last day of the month, so your notice should have expired "after 31st December 2010".

                  You got this bit right, though.
                  Hi Westminster.

                  Thanks for your considered reply. So my notice is invalid! *****! So i assume the tenancy is legally running as it would have done if i did not issue a notice at all!

                  Can i give another notice now for another full 2 months i.e. to expire "After 28th february 2011". Will that be ok to remedy my previous mistake?

                  Thanks Again for your help

                  Comment


                  • #10
                    Originally posted by westminster View Post
                    Therefore, the last day of the fixed term was 30th September 2010, (not 1st October, because 1st Oct '09 to 1st Oct '10 inclusive = one year + one day; there aren't 2 x 1st Octobers in a year).
                    The s.21 notice served on 22nd October 2010 is invalid, because, although it does give T at least two months, it doesn't expire at the end of a tenancy period. The periods in a periodic tenancy begin the day after the fixed term expired, and their length is based on the frequency with which rent is payable. Assuming this is monthly, the periods run 1st - last day of the month, so your notice should have expired "after 31st December 2010".

                    You got this bit right, though.
                    Hi Westminster,

                    if the notice was invalid, then i assume if i want to give them a new tenancy agreement for another 6 months i can just do that. I mean i dont have to correct the notice to end the current tenancy do i? The new tenancy will automatically end the old one,correct?

                    Thanks

                    Comment


                    • #11
                      Originally posted by kadir169 View Post
                      i dont have to correct the notice to end the current tenancy do i? The new tenancy will automatically end the old one,correct?
                      No and yes. It would be very odd an confusing to issue an S21 to terminate an old tenancy, then immediately issue a new tenancy agreement. That's not what an S21 notice is for. As an aside I wouldn't be making a point of advertising to the tenant that you'd screwed up the notice if you don't need to.

                      See also my post #3 above - you don't actually need to start a new agreement anyway; regardless of S21 notices (whether valid or not) the old tenancy just continues by default regardless.

                      Comment


                      • #12
                        Originally posted by kadir169 View Post
                        So my notice is invalid! *****! So i assume the tenancy is legally running as it would have done if i did not issue a notice at all!
                        A valid notice, correctly served, entitles the LL to apply to the court for possession after the notice expires, but the notice does not end the tenancy. The statutory periodic tenancy continues to run until the LL obtains, and a bailiff enforces, a possession order (unless the tenancy ends sooner by another method, e.g. if T gives notice to quit).

                        Can i give another notice now for another full 2 months i.e. to expire "After 28th february 2011". Will that be ok to remedy my previous mistake?
                        Yes, but as Eric says, there's no point unless you actually want the T to go in the event you can't negotiate a new rent for a new fixed term contract.

                        If you don't serve a s.21/don't obtain a possession order, or don't sign a new contract, then the tenancy will continue as a periodic AST on the same terms/rent as the expired contract (except provisions relating to notice).

                        If you do sign a new contract, then it would replace the old contract, and cancel out any s.21 notice previously served.

                        Comment


                        • #13
                          Originally posted by westminster View Post
                          A valid notice, correctly served, entitles the LL to apply to the court for possession after the notice expires, but the notice does not end the tenancy. The statutory periodic tenancy continues to run until the LL obtains, and a bailiff enforces, a possession order (unless the tenancy ends sooner by another method, e.g. if T gives notice to quit).


                          Yes, but as Eric says, there's no point unless you actually want the T to go in the event you can't negotiate a new rent for a new fixed term contract.

                          If you don't serve a s.21/don't obtain a possession order, or don't sign a new contract, then the tenancy will continue as a periodic AST on the same terms/rent as the expired contract (except provisions relating to notice).

                          If you do sign a new contract, then it would replace the old contract, and cancel out any s.21 notice previously served.

                          Hi Westminster and Eric,

                          thanks again for your help. I checked my s21 notice and after the posession date there is a few paragraphs that actually correct any monor errors in the posession date! So my error of just one day would be corrected there.

                          But I have another problem, I have protected the T's deposit but did not give them the "Prescribed information". I assumed that they will get all info they need from the DPS (deposit protection scheme) once the deposit is lodged. If i were to get try to get an eviction order from the courts, how will this affect the case? I mean can the judge let them stay because of this error or not?

                          Thanks again

                          Comment


                          • #14
                            Unfortunately, if you haven't given the 'prescribed information' the s21 will be invalid (!) Back to stage 1 again I'm afraid.

                            Comment


                            • #15
                              Originally posted by Snorkerz View Post
                              Unfortunately, if you haven't given the 'prescribed information' the s21 will be invalid (!) Back to stage 1 again I'm afraid.
                              Hi Snorkerz, so what can i do now?

                              Comment

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