Careless Letting Agent?

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  • Careless Letting Agent?

    My tenancy agreement is dated the 10th of the month and I am now 18 months outside of my fixed term. There is not and never has been any rent arrears.
    On the 9th Feb my landlord sent me an email stating "I am giving you your two months notice", and advising the letting agent would be in touch with the required paperwork. On 12th Feb I received a Section 21 (1) (b) notice, dated 11th Feb, requiring possession of the property after 9th April 2013.
    Am I correct in believing:
    1. An email is not proper notice?
    2. The notice should have been a Section 21 (4) (a)?
    3. The notice in any case should be dated and delivered before the 10th of the month giving me at least two months notice?
    4. Is the notice I have been given invalid?
    Thanks for your help!

  • #2
    Originally posted by Victoroius View Post
    My tenancy agreement is dated the 10th of the month and I am now 18 months outside of my fixed term. There is not and never has been any rent arrears. That has no effect on any S.21 Notice
    On the 9th Feb my landlord sent me an email stating "I am giving you your two months notice", and advising the letting agent would be in touch with the required paperwork. On 12th Feb I received a Section 21 (1) (b) notice, dated 11th Feb, requiring possession of the property after 9th April 2013.
    Am I correct in believing:
    1. An email is not proper notice? An e-mail can be regarded as a proper Notice under S.21 but only if it is agreed to be an acceptable form of service within the AST, and contains all the correct wording.
    2. The notice should have been a Section 21 (4) (a)? Yes it should but it would not necessarily invalidate it as such.
    3. The notice in any case should be dated and delivered before the 10th of the month giving me at least two months notice? Correct, the Notice is invalid, but it might be valid after 9 May 2013, but have my reservations. It depends on the exact wording of the Notice.
    Hope this helps. Just ignore the agents until they find out how to do it correctly as that will infuriate the landlord when he finds out he has an apparently incompetent agent!
    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
      Thanks Paul
      Pretty much as I thought. I appreciate your advice.

      Comment


      • #4
        The notice states
        I give you notice under section 21 of the Housing Act 1988 that I require possession of the dwelling known as: 1 Any Street, Anytown After 09/04/2013
        .
        So I get your point, at best it wouldn't be valid until 09/05/2013 thereby giving (at least) the required two months notice.

        Comment


        • #5
          that would depend on whether the notice includes a 'saving clause' that refers to the next appropriate date, apart from the date mentioned. If the notice only refers to the 9th of April without carrying on with a "...or ..." then it is just invalid.

          If you intend to vacate the property at any date, it would be advisable to give notice to terminate the tenancy yourself as that would terminate the tenancy. The LL's notice (even if valid) does not terminate the tenancy
          All views posted reflect my personal opinion only and do not constitute professional advice which I am not qualified or knowledgeable enough to provide.

          Comment


          • #6
            Originally posted by Victoroius View Post
            My tenancy agreement is dated the 10th of the month and I am now 18 months outside of my fixed term.
            Therefore one assumes the tenancy is now periodic. My comments below also assume that the fixed term was expressed in months commencing on the 10th of a month, therefore expiring on the 9th of a month, with rent payable monthly. These are standard, but not necessarily correct, assumptions, so please advise if assumptions incorrect.

            On 12th Feb I received a Section 21 (1) (b) notice, dated 11th Feb, requiring possession of the property after 9th April 2013.

            Am I correct in believing:
            1. An email is not proper notice?
            2. The notice should have been a Section 21 (4) (a)?
            3. The notice in any case should be dated and delivered before the 10th of the month giving me at least two months notice?
            4. Is the notice I have been given invalid?
            1. There is nothing in s.21 which says the notice may not be given by email. But you could potentially argue about it.
            2. S.21(4)(a) says that a notice given under it must specify the section, so if s.21 HA1988 is referred to then it's arguably compliant even if the notice refers to the wrong subsection.
            3. This is far less grey area. A s.21 notice must always give at least two months. The notice served doesn't seem to do that. If we accept that it was served on 12th February, then two months later is 12th April. (And the end of the tenancy period after that, according to my assumptions, is 9th May).
            4. Almost certainly, because it gives less than two months, never mind the requirement to expire at the end of a tenancy period.

            If you paid a deposit to the LL, has he protected it and provided you with the prescribed information?

            Bear in mind that even if this particular s.21 notice is defective, the LL will , eventually, get it right and when he does he will obtain a possession order.

            Comment


            • #7
              Originally posted by MSaxp View Post
              that would depend on whether the notice includes a 'saving clause' that refers to the next appropriate date, apart from the date mentioned. If the notice only refers to the 9th of April without carrying on with a "...or ..." then it is just invalid.
              No, the notice just states "After 09/04/2013".

              Thanks for the advice about giving notice myself to terminate the tenancy.

              Westminster - Your assumptions are correct.
              (The Landlord has accepted an offer to sell the property.)The only notice received in the email where the words "I am giving you your two months notice" Hardly compliant with proper notice as required by Section 21! I agree with all your assumptions/comments made in respect of item 3.
              The deposit was protected by the letting agent in the prescribed manner.
              I dont intend to use the errors made to play hard ball. But to be fair I think its a little naughty how this has been pushed through without proper notice. Hence I may use this fact as leverage to give me an extra week or two to find alternative accommodation or release me early from the tenancy should I find another place promptly. If they aren't prepared to give and take, then I will adopt 09/05/2013 as the possession date, on receipt of a proper Section 21 notice!

              Thanks for taking the time to respond and providing your insight.

              Comment


              • #8
                Originally posted by Victoroius View Post
                I dont intend to use the errors made to play hard ball. But to be fair I think its a little naughty how this has been pushed through without proper notice. Hence I may use this fact as leverage to give me an extra week or two to find alternative accommodation or release me early from the tenancy should I find another place promptly. If they aren't prepared to give and take, then I will adopt 09/05/2013 as the possession date, on receipt of a proper Section 21 notice!
                A s.21 notice, even if valid, is not a notice to quit. It does not end the tenancy nor oblige you to vacate at notice expiry. It does not give a 'possession date'. All it does is entitle the LL to apply to the court for a possession order after the notice expires - if the notice is correct and valid, he'll get a possession order; if not, he won't.

                Moreover, a s.21 notice does not remove your obligation to serve a notice to quit if you wish to unilaterally end the tenancy. It may be a 'strictly speaking' type of issue - but it is legally correct, so you ought to be aware of it.

                Possible scenario: you vacate on s.21 notice expiry, 9th April (or a couple of weeks after as you suggest), without giving notice to quit. LL may claim against you for rent in lieu of notice up to 9th May (or later). The LL would have a legally viable claim and could win if he argued it well.

                Comment


                • #9
                  Originally posted by westminster View Post
                  A s.21 notice, even if valid, is not a notice to quit. It does not end the tenancy nor oblige you to vacate at notice expiry. It does not give a 'possession date'. All it does is entitle the LL to apply to the court for a possession order after the notice expires - if the notice is correct and valid, he'll get a possession order; if not, he won't.
                  Totally correct, but a tenant staying in place beyond the expiry of a valid section 21 notice should be aware that if the landlord commences court actions, the tenant is likely to be ordered to repay those costs to the landlord.

                  Comment


                  • #10
                    Originally posted by Snorkerz View Post
                    Totally correct, but a tenant staying in place beyond the expiry of a valid section 21 notice should be aware that if the landlord commences court actions, the tenant is likely to be ordered to repay those costs to the landlord.
                    And what if, after being served with a s.21 notice, the T gives notice to quit expiring a month after the s.21 notice?

                    Comment


                    • #11
                      Good question W! Maybe in that case 'likely' should be replaced with 'may'. What's your opinion?

                      Comment


                      • #12
                        Originally posted by Snorkerz View Post
                        Totally correct, but a tenant staying in place beyond the expiry of a valid section 21 notice should be aware that if the landlord commences court actions, the tenant is likely to be ordered to repay those costs to the landlord.
                        This is my concern. I have no intention of staying beyond the expiry date of a valid Section 21 notice as this could lead to the sale falling through and a claim for losses, should the landlord be able to satisfactorily substantiate them.

                        Comment


                        • #13
                          I doubt LL would win costs due to sale falling through due to his be so stupid as to rely on a tenant leaving on S21 expiry.

                          An S21 notice does not end a tenancy: It does not oblige a tenant to leave: It simple permits, on expiry, the landlord to commence possession proceedings...


                          However you might consider something similar to what my son & his 2 house-mates did: S21 as issued (as it happened invalid..) . They offered to leave when LL wanted them to in return for written good references & a significant sum. They got both.

                          Cheers!
                          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


                          • #14
                            Originally posted by Victoroius View Post
                            This is my concern. I have no intention of staying beyond the expiry date of a valid Section 21 notice as this could lead to the sale falling through and a claim for losses, should the landlord be able to satisfactorily substantiate them.
                            Snorkerz meant costs as in a couple of hundred or so in court fees.

                            You are not liable if the sale of the property falls through. You are worrying needlessly.

                            Comment


                            • #15
                              Originally posted by Snorkerz View Post
                              Good question W! Maybe in that case 'likely' should be replaced with 'may'. What's your opinion?
                              As I have no direct experience of possession claims, I can only guess that it would seem likely to reduce the chance of the T being ordered to pay the LL's costs.

                              The fact remains that a s.21 notice does not remove the T's obligation to serve NTQ if he wishes to end a periodic tenancy. If he leaves at s.21 notice expiry without giving NTQ then he is exposed to a claim for rent in lieu of notice, as well as the LL's possession costs since the LL may still have to proceed with a possession claim, given that neither the s.21 notice (valid or invalid) nor the T vacating effect a legal end to the tenancy.

                              Of course, there may be a surrender by operation of law if other, additional actions by T and LL add up to it; but as we know, in the event of dispute this is something which could only be firmly established by a court.

                              Comment

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