Section 21 has been served. Can the tenant leave with no notice?

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    Section 21 has been served. Can the tenant leave with no notice?

    Hi there, I'm a tenant on a 12 months contract and recently realized that I have received (and signed) a notice requesting possession under the section 21 (1) (b) of the Housing Act 1988.

    My contract started on 11/09/2010 and the notice requires possession on 10/05/2011 (before the end of AST).

    I'm unsure about the real implications of this notice. My main questions are:

    1) Am I expected to leave on the specified date? Does that means that my contract is not really 12 months long, but actually only 8 (September 10 to May 11)

    2) In case I find a new property and decide to move out just a few days before the notice expires, do I have to give notice to the landlord or could I just leave with no further notice since the landlord has required possession over the property already?

    Thank you for your support.

    #2
    A s21 notice cannot give you notice that the LL wishes to end the tenancy before the end of the fixed term. Your tenancy is secure until 10th September 2011.

    If you want to request that the LL surrender the tenancy early, it sounds as though he will agree. But it's in your hands. You can leave at any time as long as the rent is paid up to the time agreed (ie the end of the fixed term or the date of any surrender that is agreed)
    IANAL (I am not a lawyer). Anything I say here is just an opinion, so should not be relied upon! Always check your facts with a professional who really knows their onions.

    Comment


      #3
      Hi Grrr,

      Thank you for your reply. About the s21 giving notice to end the tenancy before the fixed term, my contract does say that the landlord can required possession after 6 months of contract as long as he does that with a minimum of two months notice.

      My question is: If I decide to move out by the middle of this month, would I be allowed (based on the fact that I have been noticed to do so) or would I still be required to give the landlord 30 days notice?

      Comment


        #4
        Originally posted by maquibr View Post
        Hi Grrr,

        Thank you for your reply. About the s21 giving notice to end the tenancy before the fixed term, my contract does say that the landlord can required possession after 6 months of contract as long as he does that with a minimum of two months notice.

        My question is: If I decide to move out by the middle of this month, would I be allowed (based on the fact that I have been noticed to do so) or would I still be required to give the landlord 30 days notice?
        So your contract has a break clause. It is not usually acceptable for the contract to have a unilateral break clause in the LL's favour (you could challenge this if it does not also allow YOU to give notice early), but if you are happy to leave early then you must abide by your LL's notice period in terms of liability for rent.

        So you can move out when you want, but you are still liable for rent up to the last day of your LL's notice period. You do not have to give your own notice as well!

        I would suggest that given the apparently dubious legality of this break clause it would be worth pointing out to the LL that unilateral break clauses are not normally OK and that in the circumstances you would like to negotiate an early surrender by which you leave on x date with no further rent liability.
        '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
          So your 12 month AST has a "6 month break clause". Does it state that only the Landlord can require possession or does it allow the tenant also to give 2 months notice after 6 months? I believe a break clause needs to allow either LL or T to use it otherwise it is not valid. Someone else may be able to comment.

          But if you do wish to leave early then you can leave at any time (without giving notice) as long as you are paid up to the date mentioned in the landlords notice. Presumably (if you pay monthly) you are about to pay a month in advance on 11th April. That leaves you paid up to 10th May, so you'll be fine.
          IANAL (I am not a lawyer). Anything I say here is just an opinion, so should not be relied upon! Always check your facts with a professional who really knows their onions.

          Comment


            #6
            Originally posted by Grrr View Post
            ? I believe a break clause needs to allow either LL or T to use it otherwise it is not valid. Someone else may be able to comment.

            .
            Er....I just did
            '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


              #7
              Yes, the contract does has a break clause. It's not unilateral, but the conditions vary a little depending on who is terminating the contract. The content is the following:

              "The landlord may bring the tenancy to an end at any time during the fixed term (but not within 6 months' of the commencement date) by given to the tenant at least two months' written notice stating that the landlord requires possession of the property. A notice under the section 21 of the housing act 1988 will suffice to implement this sub-clause.

              The Tenant may bring this tenancy to an end at any time before the expiry of the fixed term (but not within 6 months' of the commencement date ie notice may be served once six months' of the tenancy has expired) by giving the landlord at least one months' written notice
              While the tenancy is periodic the one months written notice must expire the day before a rent due date."

              Based on this clause, my understanding is that the landlord has already implemented the breaking clause (since he has served me a notice under the section 21) and therefore the contract will be terminated on 10/04. I would than have no option but to find a new place and move as soon as possible.

              I did find a new place already and could move out on 16/04, but that would mean staying in the property for another 6 days after the end of the contract. At the same time, I don't want to pay a full month in advance (as I would be required to do if the contract is still valid on 11/04) if I'm leaving on the 16th and I don't even know if my contract will still be valid after that. I haven't discussed this matter with landlord yet, but I would like to be prepared for any possible situation.

              Comment


                #8
                But you said in your original post that the s21 notice stated that the LL required possession on (it should actually say 'after') 10/5/2011. I don't understad why you think the contact is terminated on 10/4. Besides, even if it is, by staying until the 11th you are liable for another months rent anyway.

                It does sound as though the break clause and the s21 are above board, so just be sure about the dates. What is ACTUALLY stated on the s21 and go by that.

                It may be that the LL wants the property back sooner anyway so may be prepared to negotiate a reduced rent for the period 11-16th April, but he is under no obligation to do so and I'd be surprised if he did.
                IANAL (I am not a lawyer). Anything I say here is just an opinion, so should not be relied upon! Always check your facts with a professional who really knows their onions.

                Comment


                  #9
                  It is in fact a perfectly standard break clause, in that case. In fact, it gives you more flexibility than it gives your LL.

                  You need to pay rent up to and including 10 May then move out on or before that day to avoid further rent liability.
                  '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


                    #10
                    Originally posted by Grrr View Post
                    But you said in your original post that the s21 notice stated that the LL required possession on (it should actually say 'after') 10/5/2011. I don't understad why you think the contact is terminated on 10/4. Besides, even if it is, by staying until the 11th you are liable for another months rent anyway.

                    It does sound as though the break clause and the s21 are above board, so just be sure about the dates. What is ACTUALLY stated on the s21 and go by that.

                    It may be that the LL wants the property back sooner anyway so may be prepared to negotiate a reduced rent for the period 11-16th April, but he is under no obligation to do so and I'd be surprised if he did.

                    Sorry, I got the date wrong in my original post. The s21 says "after 10/04/2011".

                    I do think that this was used by the landlord more as a guarantee than as a real intent to end the contrat before the fixed term of 12 months. This was signed on the same day as we signed the contract and he has not mentioned it since. At the same time, I do believe that the contract will be officialy terminated on 10/04 based on what the break clause says (even if that's not the LL intention at this moment), and in this case I should just move out anyway.

                    In any case, I will of course try to contact the LL on monday to discuss this beforing taking any actions.

                    Comment


                      #11
                      OK - that wasn't clear before - so it was served on the same day you signed the contract.

                      In which case that seems even more strange to me. Why would the landlord sign a 12 month contract, only to give you notice to quit at month 7? Apart from anything else, that (I believe - but check) gives you the right to just walk away on April 10th. Which is on SUNDAY! I'm sure he can't have intended that if nothing else has been discussed since then. Sounds like he has been very badly advised!

                      From your point of view, if you really don't want to incur another full month rent to 10th May, then you need to sort this out BEFORE Monday. If you are still in the property on Monday you will have entered a new rental month and the LL is within his rights to require you to pay for the whole month.
                      IANAL (I am not a lawyer). Anything I say here is just an opinion, so should not be relied upon! Always check your facts with a professional who really knows their onions.

                      Comment


                        #12
                        Originally posted by mind the gap View Post
                        You do not have to give your own notice as well!
                        Originally posted by Grrr View Post
                        you can leave at any time (without giving notice) as long as you are paid up to the date mentioned in the landlords notice.
                        Guys, we are often told on here (most frequently by Westminster) that an s21 is NOT a notice to quit, and therefore the T needs to give their own notice unless they are leaving on the last day of a fixed term agreement. That does not apply here. The landlord does not appear to have invoked the break clause, he has just served a s21 - we haven't even acertained if the s21 is valid or not....

                        Was it served AFTER the tenancy began
                        Was it served AFTER the deposit was protected
                        Was it served AFTER the break was invoked

                        Comment


                          #13
                          Originally posted by Snorkerz View Post
                          an s21 is NOT a notice to quit, and therefore the T needs to give their own notice...
                          I'm not sure that's the case at all. Can you show me somewhere that states that a tenant has to give notice to quit when responding to a s21? Although it might be courtious to respond to a s21 by saying I will be moving out on XXX, I would imagine legally a tenant can just up sticks and leave as requested.
                          IANAL (I am not a lawyer). Anything I say here is just an opinion, so should not be relied upon! Always check your facts with a professional who really knows their onions.

                          Comment


                            #14
                            Originally posted by Snorkerz View Post
                            Guys, we are often told on here (most frequently by Westminster) that an s21 is NOT a notice to quit, and therefore the T needs to give their own notice unless they are leaving on the last day of a fixed term agreement. That does not apply here. The landlord does not appear to have invoked the break clause, he has just served a s21 - we haven't even acertained if the s21 is valid or not....
                            Yes, it does. The break clause may be exercised in the form of a s.21 notice.

                            Originally posted by maquibr View Post
                            "The landlord may bring the tenancy to an end at any time during the fixed term (but not within 6 months' of the commencement date) by given to the tenant at least two months' written notice stating that the landlord requires possession of the property. A notice under the section 21 of the housing act 1988 will suffice to implement this sub-clause.
                            Leaving aside the validity of the notice as a s.21 notice, the notice served by LL has the effect of ending the fixed term at notice expiry, meaning that, if T moves out by then, the tenancy and his rental liability end on 10th April. And, as we all know, T does not need to give notice to vacate at fixed term expiry.

                            Comment


                              #15
                              Originally posted by maquibr View Post
                              I do think that this was used by the landlord more as a guarantee than as a real intent to end the contrat before the fixed term of 12 months. This was signed on the same day as we signed the contract and he has not mentioned it since. At the same time, I do believe that the contract will be officialy terminated on 10/04 based on what the break clause says (even if that's not the LL intention at this moment), and in this case I should just move out anyway.
                              I think you may be right that LL had no intention of ending the tenancy at seven months, but it's important to understand LL's notice under the break clause ends the fixed term early, NOT the tenancy. If you remain in residence after notice expiry (and you are fully entitled to do so), a statutory periodic AST will automatically arise on 11th April; same terms as the expired contract, except for any provisions relating to notice.

                              Comment

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