Section 21 - struck out for absence of the word "after"

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    Section 21 - struck out for absence of the word "after"

    Hi all

    I served a S21 notice (using landlordzone download) detailing tenancy as Periodic and with "Date of Expiry of this Notice: 31st January 2011", as rent was due 1st of each month. It was served on 23rd November 2010.

    The judge has just struck this out with the comments "The contracted tenancy expired on 1 May 2008 and the tenancy became statutory periodic tenancy. A section 21(4) notices therefore required and the absence of the word 'after' before the date given (31 January 2011) is fatal to the validity of the notice:see McDonald v Fernandez."

    I can't believe this as I have successfully used the same form in the same way a couple of times before. It seems he has missed the part under the "Date of Expiry of this notice" that states "(See below)".

    The words below state:

    "Periodic Tenancy (S21(4)a) (i.e. where the tenant has stayed-on after the expiry of the fixedterm)a notice can be served after the fixed-term has ended specifying a date after which possession is required being the last day of a period of the tenancy (usually the day before a rent payment day) and not earlier than two months after the date the notice was given.
     Periodic Tenants – the landlord requires possession after the date stated in this notice or at the end of the period of your tenancy which will end next after the expiration of 2 months from the service upon you of this notice."

    So surely this satisfies the judges comment that the word 'after' must be used?? Please tell me he is wrong!!

    Is there a later form I should now use with updated words?

    Regards
    Parch

    #2
    This question has been covered in many threads on this forum, and yes, the Judge was right. Did you serve a S.21 (1)(b) Notice instead of a S.21 (4)(a)? It appears from the Judge's comments that the period of the monthly periodic tenancy was from 2nd to 1st of the month as he says the fixed term expired on 1 May 2008. Did he mean 30 April 2008? What dates were specified in your tenancy as that is what counts?
    The advice I give should not be construed as a definitive answer, and is without prejudice or liability. You are advised to consult a specialist solicitor or other person of equal legal standing.

    Comment


      #3
      No, it was a 21 (4)(a). Tenancy start date (1st May 2007) and payment date were the same - 1st of every month and the tenancy agreement ended 12 noon 1st May 2008. To me that means it became periodic from 12 noon on 1st May 2008. The notes on the S.21 notice state to use the date usually before the payment date, i.e. last day of the month.

      His comment seems to count the lack of the word 'after' as being the critical thing and not the date.

      Comment


        #4
        This is very worrying.

        I have quite a few of these LLZ S21's in circulation and if the judge is right (and they are not always) then this feels like a bit of a timebomb to me!

        The footnotes on the LLZ S21 seem very clear to me, how could he mis-interpret them?!

        Incidentally, if you put a commencement time of 12 noon on a tenancy agreement does that mean that the last day of the tenancy period, and the first day are actually the same date?!

        Comment


          #5
          Originally posted by Parchester View Post
          Hi all

          I served a S21 notice (using landlordzone download) detailing tenancy as Periodic and with "Date of Expiry of this Notice: 31st January 2011", as rent was due 1st of each month. It was served on 23rd November 2010.
          A s.21(4)(a) notice must give T at least two months and expire at the end of a tenancy period (not a rental period).

          Originally posted by Parchester View Post
          No, it was a 21 (4)(a). Tenancy start date (1st May 2007) and payment date were the same - 1st of every month and the tenancy agreement ended 12 noon 1st May 2008. To me that means it became periodic from 12 noon on 1st May 2008.
          Yes, so arguably the tenancy periods ran noon 1st - noon 1st of the month, and your notice should have said you required possession "after 12 noon 1st February 2011". (Needless to say, it's highly inadvisable to specify a noon expiry (or date) of the fixed term; best practice is to state the term [e.g. 12 months] commencing on [date] and nothing else).

          The notes on the S.21 notice state to use the date usually before the payment date, i.e. last day of the month.
          Incorrect advice.

          I can't believe this as I have successfully used the same form in the same way a couple of times before. It seems he has missed the part under the "Date of Expiry of this notice" that states "(See below)".

          The words below state:

          "Periodic Tenancy (S21(4)a) (i.e. where the tenant has stayed-on after the expiry of the fixedterm)a notice can be served after the fixed-term has ended specifying a date after which possession is required being the last day of a period of the tenancy (usually the day before a rent payment day) and not earlier than two months after the date the notice was given.
          Periodic Tenants – the landlord requires possession after the date stated in this notice or at the end of the period of your tenancy which will end next after the expiration of 2 months from the service upon you of this notice."

          So surely this satisfies the judges comment that the word 'after' must be used?? Please tell me he is wrong!!
          If this text was at the bottom of the notice under 'Notes for Tenant' or whatever, then arguably it isn't sufficiently clear, or could perhaps be viewed as insufficiently direct in terms of qualifying the expiry date given because it addresses 'periodic tenants' [plural] in general rather than this specific tenant.

          FYI, the following expiry date + saving clause have been judged valid by a higher court in the past (although not a binding judgment):

          After: [date] or,
          if this notice would otherwise be ineffective, after the date being the earliest date not earlier than two months after the date of service of this notice when shall expire a period of the assured shorthold tenancy.

          Comment


            #6
            Very worrying jghomer that's why I want to make absolutely sure I have filled the form correctly. It is certainly the same as one I did last year that was successful - so either that judge missed something or this one has it wrong.

            I believe with my tenancy agreement that the end of the statutory tenancy period and the beginning of the periodic are indeed the same day.

            Comment


              #7
              Thanks for the detail Westminster, so from what you have said the issue is that fact that it should have explicitly stated a noon expiry date. To be honest I haven't used this tenancy agreement since as I updated to a simpler one that would have stated expiry on 30th April. However if this is the case why did the judge not say this and instead focus on the apparently missing 'after'?

              If the notice on the bottom for tenants is not sufficient then that will effect current landlordzone downloads as they are the same.

              Do you think it worth appealing about this decision and point out that the word 'after' is at the bottom, in the event he missed it? Technically my notice could still be conceived as being correct as noon on the 1st is in the same day as the expiry date determines. How do I go about appealing without it dragging on?

              Thanks
              Parch

              Comment


                #8
                There are two instances here of not keeping things simple.

                When you prepare a notice you only put in it what is essential. If you put in extra you may undermine the important part. Your form of notice seems to brimming with inessential information and an important word got displaced from where it should be, that is in the "body" of the notice.

                Providing for a tenancy to end at a particular time of day serves no useful purpose and is apt to lead to confusion. Since getting the right date in a section 21 (4) notice is critical you do not want to allow any argument about precisely when the fixed term ended. You do not want a judge saying that you cannot have a tenancy of part of a day.

                Comment


                  #9
                  OK so it seems as if the tenancy expiry date having the time of 'noon' has complicated things, although the Judge does not mention this.

                  If what Lawcruncher says is right then this implies that the landlordzone S.21 notice template is not ideal. Can anyone else comment on this?

                  I think that I need to challenge the decision on this anyway because it does seem as if the Judge is focussing on the absence of 'after' - he does not mention that it is not good enough to be in the Note to Tenants at the bottom.

                  Is there a formal process I need to go through to appeal or can I just write to the court manager and ask for further clarification?

                  Comment


                    #10
                    Originally posted by Parchester View Post
                    If what Lawcruncher says is right then this implies that the landlordzone S.21 notice template is not ideal.
                    I wouldn't recommend it if the s.21(4)(a) template does not use the word "after" immediately adjacent to the expiry date.

                    I think that I need to challenge the decision on this anyway because it does seem as if the Judge is focussing on the absence of 'after' - he does not mention that it is not good enough to be in the Note to Tenants at the bottom.
                    But he does cite a case, McDonald v Fernandez. If you look up this case you'll find that the judgment refers to the expiry date of a s.21(4)(a) notice being wrong because it was not the end of a period, and also to the absence of the word 'after'. See link for short summary http://www.letlink.co.uk/case-law/no...ndez-2003.html

                    There are only two possibilities: 1. he did notice and read the notes at the bottom of the page, but took the view that this didn't make up for the incorrect expiry date and/or absence of the word 'after', or 2. he didn't notice, in which case this rather proves that putting a 'P.S.' at the bottom isn't enough as it can easily be missed by a reasonable person.

                    Is there a formal process I need to go through to appeal or can I just write to the court manager and ask for further clarification?
                    You must firstly apply to the court for permission to appeal. If permission is refused on paper, you can apply to have a the permission application considered at a hearing. If permission is refused at the hearing, that's the end of the line - no appeal. To have any chance of success, I suspect you would need a specialist lawyer to help you (for example, you might have to cite case law which supports your argument) and even then you might not get permission.

                    It'd probably be quicker and cheaper to serve another s.21 and apply for possession again.

                    Comment


                      #11
                      Originally posted by Lawcruncher View Post
                      When you prepare a notice you only put in it what is essential. If you put in extra you may undermine the important part. Your form of notice seems to brimming with inessential information and an important word got displaced from where it should be, that is in the "body" of the notice.
                      It seems to be standard on s.21 templates that there are 'notes' of some kind at the bottom (e.g. see below, taken from a letlink.co.uk template). This seems to be the result of the Notices to Quit etc (Prescribed Information) Regulations 1988 http://www.legislation.gov.uk/uksi/1.../contents/made (a s.21 isn't a notice to quit, but maybe it's an 'etc'?).

                      Anyway, I agree it is crucial for the word 'after' (and any saving clause) to be in the main body of the notice, directly adjacent to the expiry date, and not hidden away in the notes at the bottom.

                      NOTES
                      A. Where an assured shorthold tenancy has become a periodic tenancy, a court must make an order for possession if the landlord has given a notice in writing.
                      B. Where there are joint landlords, at least one of them must give this notice.
                      C. This notice must expire: (a) on the last day of a period of the tenancy. (b) at least two months after this notice is given. (c) no sooner than the earliest day on which the tenancy could ordinarily be brought to an end by a notice to quit.
                      INFORMATION FOR TENANTS
                      • 1. If the tenant or licensee does not leave the dwelling, the landlord or licensor must get an order for possession from the court before the tenant or licensee can lawfully be evicted. The landlord or licensor cannot apply for such an order before the notice to quit or notice to determine has run out.
                      • 2. A tenant or licensee who does not know if he has any right to remain in possession after a notice to quit or notice to determine runs out can obtain advice from a solicitor. Help with all or part of the cost of legal advice and assistance may be available under the Legal Aid Scheme. He should also be able to obtain information from a Citizens' Advice Bureau, a Housing Aid Centre or a rent officer.

                      Comment


                        #12
                        A section 21 notice is not an "etc". The Regulations apply where "a landlord gives a notice to quit any premises let as a dwelling, or a licensor gives a notice to determine a periodic licence to occupy premises as a dwelling".

                        Since there is no prescribed form for a section 21 notice all you have to do is to satisfy the requirements set out in section 21 which differ according to whether the notice is given pursuant to sub-section (1) or (4).

                        Comment


                          #13
                          I suspected as much - so the template notes are superfluous.

                          Comment


                            #14
                            Originally posted by westminster View Post
                            ...so the template notes are superfluous.
                            Yes.

                            Important rule for budding lawyers:

                            Never say more than you need to as you may give a hostage to fortune.

                            Comment


                              #15
                              Just to be clear then are we advised NOT to use the LLZ S21 form?

                              And re-issue any that have already been issued? :-(

                              Comment

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