Does a new Section 21 supercede an existing one?

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  • Does a new Section 21 supercede an existing one?

    An interesting little situation for you, looking forward to your responses.

    Scenario
    A 12-mth fixed term AST is set up. At the beginning of the tenancy the letting agency issues a Section 21 notice for the last day of the tenancy (as a back-up thing as discussed in other threads recently, but without informing the landlord and certainly not on his instruction).

    After 10 months the tenants ask the agents for an extension by a month, the request is not passed onto the landlord.

    After 11 months the agency issues a further Section 21 notice with the expiry date being after the end of the original fixed term, on instruction from the landlord (probably because they forgot they'd already issued one and as they hadn't told the landlord about the first one he didn't know of its existence).

    Tenant stays in the flat an extra week past the end of the original fixed term but moves out before the later date. They pay the rent to the end of the initial period but not for the extra week.

    Questions
    Q1: As no further tenancy agreement was signed to cover the period after the first expiry date and the tenant stayed longer than allowed to by their initial agreement, what is the status of the tenancy? Is it now a Periodic, does it keep the terms of the original AST or is it something else?

    Q2: If it has changed to a Periodic by dint of the tenant staying on, when do the parties' liabilities to each other end? Is the first S21 notice still valid and the tenant can move out when they like, does either the landlord or tenant need to now issue 1 month's notice to the other party, or does the second S21 notice serve the purpose so liabilities end on date of second S21 notice?

    Q3: Specifically, up to what date is the tenant liable for rent? One month after the Periodic started (if that is indeed what it was), the date of the second S21 notice or the date they actually moved out?

    Q4: If for some reason the second Section 21 notice turns out to be defective so that it effectively was never issued, what is the effect on the answer to Q2, i.e. when do the parties' liabilities to each other end?

    Q5: If the second S21 notice was defective, upto what date are the tenants liable for rent? The original date, the date they moved out or one month after the Periodic tenancy commenced?

    Sorry to be so long but there are lots of things to consider that might be relevant.

  • #2
    Originally posted by Surrey View Post
    An interesting little situation for you, looking forward to your responses.

    Scenario
    A 12-mth fixed term AST is set up. At the beginning of the tenancy the letting agency issues a Section 21 notice for the last day of the tenancy (as a back-up thing as discussed in other threads recently, but without informing the landlord and certainly not on his instruction).

    After 10 months the tenants ask the agents for an extension by a month, the request is not passed onto the landlord.

    After 11 months the agency issues a further Section 21 notice with the expiry date being after the end of the original fixed term, on instruction from the landlord (probably because they forgot they'd already issued one and as they hadn't told the landlord about the first one he didn't know of its existence).

    Tenant stays in the flat an extra week past the end of the original fixed term but moves out before the later date. They pay the rent to the end of the initial period but not for the extra week.

    Questions
    Q1: As no further tenancy agreement was signed to cover the period after the first expiry date and the tenant stayed longer than allowed to by their initial agreement, what is the status of the tenancy? Is it now a Periodic, does it keep the terms of the original AST or is it something else?
    It is now a statutory periodic tenancy with all the other terms of the original AST remaining in force

    Q2: If it has changed to a Periodic by dint of the tenant staying on, when do the parties' liabilities to each other end? Is the first S21 notice still valid and the tenant can move out when they like, does either the landlord or tenant need to now issue 1 month's notice to the other party, or does the second S21 notice serve the purpose so liabilities end on date of second S21 notice?
    The fiirst S21 could still be valid but the second one has added a certain doubt (unless it were stated to be without prejudice to the validity of the first one). Anyway, it seems reasonable for the tenant to rely on the validity of the first one and leave without further notice. The tenant remains liable to pay prorata rent until the tenancy ends which in this case happens when the tenant actually leaves

    Q3: Specifically, up to what date is the tenant liable for rent? One month after the Periodic started (if that is indeed what it was), the date of the second S21 notice or the date they actually moved out?
    see above

    Q4: If for some reason the second Section 21 notice turns out to be defective so that it effectively was never issued, what is the effect on the answer to Q2, i.e. when do the parties' liabilities to each other end?
    no change

    Q5: If the second S21 notice was defective, upto what date are the tenants liable for rent? The original date, the date they moved out or one month after the Periodic tenancy commenced?
    no change

    Sorry to be so long but there are lots of things to consider that might be relevant.
    no problem
    I think it unlikely that a court would find that the tenant had acted unreasonably in relying on the validity of the first notice.
    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


    • #3
      Interesting reply - slightly different circumstances

      Hi there,

      I read this post which is really interesting.

      At the mo, I am buying (hoping to anyway!!) a flat with a tenant in place. As there have been so many delays, (I won't bore you all with the details...) the tenant's current AST expires at the end of October. To safeguard positions the Seller served a notice (not sure which one, but I expect it would have been the s.21 notice - basically saying that she wants the property back at tenancy expiration). Meanwhile all parties have been chatting and the tenant would like to stay and I'm happy to keep her on. She's agreed to pay a small bit extra in rent.

      I'm just not sure what I have to do next? I'd like to draw up a new AST to give her but are there any things to watch out for as she won't actually be vacating the property? The plan is I will complete the purchase with her in place and then renew the tenancy.

      Also I saw somewhere on this site info. about a form and giving a month's notice about a proposed higher rent. Is this something I need to do in these circumstances?

      Am a bit clueless I'm afraid so won't be offended by an idiot's guide/tips!

      Many thanks in advance.
      Regards,

      Comment


      • #4
        The only thing that you can't do is to issue a new AST until you have completed the purchase. Naturally the contract of sale expressly states that the vendor is not giving you vacant possession due to the occupancy of *****. If nothing is done on either side, then the tenancy agreement becomes statutory periodic. Once you have completed the purchase, you can then issue your own AST and provided the tenant is happy with the terms including your new rent, he signs the AST and you hae him as your tenant for a minimum of six months. If said tenant is not happy, you can give him his two months notice based on his old AST of which your solicitor will have obtained a copy.
        Any information given in this post is based on my personal experience as a landlord, what I have learned from this and other boards and elsewhere. It is not to be relied on. Definitive advice is only available from a Solicitor or other appropriately qualified person.

        Comment


        • #5
          Originally posted by lawstudent View Post
          I think it unlikely that a court would find that the tenant had acted unreasonably in relying on the validity of the first notice.
          However, as they stayed on beyond the final date of the AST, does that mean that they should have given me further notice of their intention to leave because it has changed to a periodic? If not, it looks as if once a fixed term is up a tenant can leave whenever they want without giving notice as long as they pay the rent for the days they're there. Seems a bit daft but looks to be the logical conclusion from what you've said.

          The problem is not that they wouldn't move out but that they moved out earlier than I expected them to, so I didn't receive any rent for the days I was expecting them to be there. I know this is the other way round to most of the problems I read about and loads of you will just say "lucky you, you got your property back" but it'd be good to know where I stand regarding periodic tenancies. If the initial S21 notice had not been issued, what would the tenant's liability have been? Would they have had to give one month's notice ending on the end of a term (meaning effectively almost two months' notice), or at least pay the rent for their final month after moving out?

          Comment


          • #6
            To my mind, the first S21 is invalidated by the second S21, unless the second one said "without prejudice". With this in mind, IF this is the case, then the tenant was free to leave when he wished. Once you issue the S21, as far as I know, the tenant is free to leave(unless he is in a fixed term). You cannot say on one hand "oh I want you out" but on the other "but you mustnt leave until I say so".
            Any posts by myself are my opinion ONLY. They should never be taken as correct or factual without confirmation from a legal professional. All information is given without prejudice or liability.

            Comment


            • #7
              Originally posted by Surrey View Post
              However, as they stayed on beyond the final date of the AST, does that mean that they should have given me further notice of their intention to leave because it has changed to a periodic? If not, it looks as if once a fixed term is up a tenant can leave whenever they want without giving notice as long as they pay the rent for the days they're there. Seems a bit daft but looks to be the logical conclusion from what you've said.
              he can only leave without giving notice if the LL has given notice - which, in the case you adumbrate, he has done
              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


              • #8
                adumbrate Show phonetics
                verb [T] FORMAL
                to give only the main facts and not the details about something, especially something that will happen in the future:
                The project's objectives were adumbrated in the report.

                adumbration Show phonetics
                noun [U] FORMAL


                Just in case you were wondering...............!

                Comment


                • #9
                  mmmmm... its as sad as, if not worse than, Paul_f's "effluxion " ....

                  If the OFT Guidleines state that terms that are difficult for an ordinary lay person to understand could be deemed unfair, could we (especially the "professionals" ) not set an example and follow those guidleines on this forum ?

                  Originally posted by lawstudent View Post
                  he can only leave without giving notice if the LL has given notice - which, in the case you adumbrate, he has done
                  Any information or opinion given in this post is based only on my personal experience, what I have learned from this, other boards and elsewhere. It is not to be relied on. Definitive advice is only available from a Solicitor or other appropriately qualified person. E&OE

                  Comment


                  • #10
                    Originally posted by lawstudent View Post
                    The fiirst S21 could still be valid but the second one has added a certain doubt (unless it were stated to be without prejudice to the validity of the first one). Anyway, it seems reasonable for the tenant to rely on the validity of the first one and leave without further notice.
                    I don't see how a landlord can issue a second S21 and have that invalidate the first S21 regardless of what the second one says. If he could you'd have the case where a tenant receives an S21, makes all the arrangements ready to move out in two months time and then a week before the move receive a new S21 with a later date therefore saying he's got to postpone the move. That can't possibly be right. If it was then tenants would always have to issue their own notice to match the landlords to stop being mucked about.

                    It seems clear the first S21 remains valid unless both landlord and tenant agree to cancel it.

                    Interesting to see the Sword of Damocles approach to issuing S21's backfire on the landlord. This approach relies on the tenant forgetting the S21 was issued, but in this case the agent forgot!
                    ~~~~~

                    Comment


                    • #11
                      Originally posted by Ruth Less View Post
                      If he could you'd have the case where a tenant receives an S21, makes all the arrangements ready to move out in two months time and then a week before the move receive a new S21 with a later date therefore saying he's got to postpone the move. That can't possibly be right.
                      It isn't right, because a second S21 would not result in the situation you describe, because of what lawstudent said above - once a tenant has received an S21 a tenant can leave without notice. So the fact that the S21 date has changed is irrelevant, there is still a S21 issued.
                      Any posts by myself are my opinion ONLY. They should never be taken as correct or factual without confirmation from a legal professional. All information is given without prejudice or liability.

                      Comment


                      • #12
                        Originally posted by MrShed View Post
                        It isn't right, because a second S21 would not result in the situation you describe, because of what lawstudent said above - once a tenant has received an S21 a tenant can leave without notice. So the fact that the S21 date has changed is irrelevant, there is still a S21 issued.

                        Are you saying the tenant doesn't have to wait for the S21 notice to expire? So if a tenant gets an S21 that expires in two months time (i.e. they are given two months notice) then they can leave immediately (so long as it's after the end of the fixed term) without having to pay the rent for those two months?

                        If this is what you are saying then why wasn't the answer to the OP that it doesn't matter which of the two S21 notices is valid as the tenant can leave anyway?

                        I am not sure lawstudent meant this as he said "I think it unlikely that a court would find that the tenant had acted unreasonably in relying on the validity of the first notice."

                        If what you say is right then the tenant could leave on the date they did using either of the two S21 notices, they would not have to rely on the first.
                        ~~~~~

                        Comment


                        • #13
                          Thank you, P Pilcher for your helpful reply.

                          Comment


                          • #14
                            Originally posted by Ruth Less View Post
                            I don't see how a landlord can issue a second S21 and have that invalidate the first S21 regardless of what the second one says. If he could you'd have the case where a tenant receives an S21, makes all the arrangements ready to move out in two months time and then a week before the move receive a new S21 with a later date therefore saying he's got to postpone the move. That can't possibly be right. If it was then tenants would always have to issue their own notice to match the landlords to stop being mucked about.

                            It seems clear the first S21 remains valid unless both landlord and tenant agree to cancel it.
                            I agree with you.
                            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


                            • #15
                              My question about whether the tenants are responsible for rent after their fixed term, seeing as they stayed on after the last date of the term, still hasn't really been tackled, partly because I've received copies of the notices and they appear to expire on a set day rather than be open-ended.

                              Originally posted by Ruth Less
                              I don't see how a landlord can issue a second S21 and have that invalidate the first S21 regardless of what the second one says.
                              As mentioned above, it seems that it wasn't the second notice that invalidated the first, but the first expired so the second then came into play.

                              here's what we've got:
                              They both mention Section 21(1)(b) and Section 21(4)(a) in the heading, are addressed to the tenant and give the landlord's name and address.

                              The first one says:

                              "I give you notice that I require possession of dwelling house known as [[address of property]]]
                              Date of Expiry On
                              [[date of expiry of original fixed term - 20th June]] or the day on which a complete period of your tenancy expires next after the end of two months from the service of this notice, if this notice is given after the expiration of the fixed terms.
                              Signed by agent and dated.

                              Notes on the back explain the following:
                              "On or after the coming to an end of a fixed term AST a Court must make an Order for possession of the Landlord has given a notice in this form, even if the AST has becom a Periodic tenancy.
                              The length of the notice must be at least two months and, if given before or on the day on which the fixed term comes to an end, will expire on the date shown overleaf."

                              The second one is identical, only that the issue date is 18th May not 3 July 2004 and date of expiry is now 17th July, not 20th June and it isn't signed, though I believe that is not a requirement, (see Section 21 Questions (3) somewhere else in the forums) so that's a possible red herring I will avoid.

                              Both notices state the specific day possession is required, NOT that it should be any time AFTER that date. The notes also specifically state (as I read them) that the notice expires on the date shown - or have I got that wrong?

                              QUESTION 1: seeing as the tenant left 7 days AFTER the date specified, has the first notice expired? Even though the first notice was still "active" when the second was issued, once the first one expires, the second notice becomes the "active" notice - or have I got it wrong? And doesn't that mean that the tenants are both allowed possession of the property and responsible for rent, up to that expiry date?

                              QUESTION 2: If, for some other reason, that second notice turns out to be defective, so effectively it's a periodic tenancy and no notice has been given by either side, how long are the tenants responsible for the rent? Just until the last day they were there or some other date?

                              Sorry to be persistent on this (or maybe I'm just being blonde - apologies to all other blondes out there!) but I still don't understand what the tenant's responsibilities are regarding their liability to pay the rent, whether they're in the place or not.
                              Last edited by Surrey; 08-09-2006, 16:53 PM.

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