Section 21 queries

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    Section 21 queries

    Hi All

    We are considering issuing a Section 21 in the next few days and we'd like to check out a few points please.

    The tenancy started on 9 Oct 2012, the rental period is 9th to 8th, so we serve the notice on 5 March. The notice date, we think, should be 8 May 2013 with a statement that possession is required after that date.

    Does that sound correct?

    A complication is that the tenancy agreement is for a year, but with an option to review it after 6 months. The clause says - for the term of 12 calendar months commencing on 9 October 2012 with a review after 6 months.

    Does this mean that we can't use Section 21 until October 2013 or later?

    However, later on it says - the landlord shall have the right to terminate the Tenancy by giving 2 months advance written notice to the tenant....and not to take effect any earlier that 9/4/13 and served 60 days prior to the date mentioned.

    Covering letter - my feeling is not to put a covering letter in with a Section 21 or 8, as it could be interpreted wrongly. Any ideas on that one too please?

    Cheers

    #2
    This sounds like a break clause. You need to activate the break clause - this will end the fixed term tenancy at date X, then you need to serve a section 21 notice that expires at any time after date X. So long as it is served on or before date X it only needs to give 2 months notice, it doesn't need to expire on any specific date.

    We don't use a covering letter (for English s21's)but I know a very competent L&T solicitor who does. Your choice.

    Comment


      #3
      Originally posted by isabella View Post

      A complication is that the tenancy agreement is for a year, but with an option to review it after 6 months. The clause says - for the term of 12 calendar months commencing on 9 October 2012 with a review after 6 months.
      A review of what? Rent? Please quote the exact wording.

      the landlord shall have the right to terminate the Tenancy by giving 2 months advance written notice to the tenant....and not to take effect any earlier that 9/4/13 and served 60 days prior to the date mentioned.
      Please quote the exact wording of the whole clause.

      EDIT: ...and is there an equivalent clause allowing the T to give notice to end the fixed term tenancy?

      Comment


        #4
        Originally posted by Snorkerz View Post
        This sounds like a break clause. You need to activate the break clause
        I have a feeling it's going to be rather difficult to exercise the break clause if it actually specifies that the notice must be served precisely 60 days before 9th April.

        Comment


          #5
          Agreed, and you also highlight the possible lack of a tenant break clause which might shove a mighty big spanner in the works. Oh the joys of bad drafting - does "prior to the date mentioned" refer to the date mentioned in the agreement or on the notice?

          Comment


            #6
            Originally posted by westminster View Post
            I have a feeling it's going to be rather difficult to exercise the break clause if it actually specifies that the notice must be served precisely 60 days before 9th April.
            TenancyServices intend to purchase a time machine to extend our 'same day service' to include a premium 'yesterday service'.

            Comment


              #7
              Hello. Thanks so much for your replies.

              The good news is that the tenant paid the outstanding rent today, so we aren't required to take any further action, at least for now.

              We intended (and this may still come to pass) to issue a 21 and then an 8.

              The TA does have a separate clause allowing the T to terminate by giving 2 months notice.

              I've quoted the clauses as they are written, your reactions don't give me much confidence in this TA!

              Comment


                #8
                If you've quoted the exact wording of the break clause, as well as the clause about the term of twelve months with an option to 'review' after six months, then yes, it would appear to be a very poorly drafted contract. (Agent drafted by any chance?)

                Leaving aside the mystery of what might be reviewed after six months, a break clause is a purely contractual creature. It can only be exercised if you follow the precise requirements of the clause, otherwise it may be unenforceable. It's not good enough just to think you know what it's trying to say.

                Your break clause reads:

                the landlord shall have the right to terminate the Tenancy by giving 2 months advance written notice to the tenant....and not to take effect any earlier than 9/4/13 and served 60 days prior to the date mentioned.
                The bit in blue specifies two months' advance written notice. That means exactly two calendar months, no more no less. This could be tricky, for a start. A better requirement would be at least or not less than two calendar months.

                The bit in red is clear; the exact two months' notice can't expire earlier than 9th April 2013, meaning later is okay. (But this apparent flexibility is strictly hemmed in on either side...)

                The bit in green is like the bit in blue, in that it requires the notice to be served exactly 60 days prior 'to the date mentioned', no earlier and no later. Although it's not entirely clear, we will assume the date mentioned is 9th April 2013.

                Basically, a notice under this break clause can only be given on one specific date, exactly 60 days prior to 9th April 2013 (probably), and it must give exactly two calendar months' notice. Arguably, you've missed the boat in terms of attempting to exercise the break clause. Even if you'd served notice on what you thought was the correct date, there's plenty of room for disputing niceities. Fair chance a court could rule against you if you sought possession relying on a notice under the break clause (combined with a notice under s.21).

                Comment


                  #9
                  Thanks again Westminister.

                  Yes, the TA was drafted by a Letting Agent, and it was he who found us this great tenant. When will we ever learn!

                  I think we are stuck, for now, with this TA and the problems it could cause, unless there is any way of amending it to make it more useable?

                  Thanks.

                  Comment


                    #10
                    Originally posted by isabella View Post
                    Yes, the TA was drafted by a Letting Agent, and it was he who found us this great tenant. When will we ever learn!
                    I don't know, but what I do is make sure, for a start, that I do not accept a prospective tenant unless I am 100% happy with the references and moreover that the prospective T's 'story' adds up.

                    For example, I once had two girls wanting to rent a 1-bed flat in central London in the West End. The agent said he thought they were lesbians. Fine, no problem. References checked out. However, they also claimed to be students (and had evidence of it), but the college (a v. obscure one) was in a far flung district of London, so it made absolutely no sense that they'd want to pay a large premium to live miles away in the centre, and pay extra to travel miles to college every day. So I said no - you may be able to guess why.

                    More recently, I was suspicious when a prospective T immediately offered the full asking rent without trying to negotiate a tenner a week off. It had rarely happened before, and it put me on alert. (Their story added up, however, so I said yes).

                    For me, references and story both have to check out, otherwise no deal. However keen the agent is to push the T on you. The agent is just keen to get the property off their books, and it's no skin off their nose if you end up with a bad T.

                    And, seriously, you need to pay a good solicitor* to draft you a decent contract, if that's the sort of rubbish you are paying the agent for. Who knows what other problems the contract might contain.

                    Finally, buy a good book or two on the legalities of residential lettings. Look for the Which Guide and/or Tessa Shepperson on Amazon. Buy the most up to date editions.

                    I think we are stuck, for now, with this TA and the problems it could cause, unless there is any way of amending it to make it more useable?
                    You cannot amend the terms of a tenancy contract during the fixed term without the written agreement of the T.

                    ===

                    * Good solicitor as in not someone on the local high street who claims to do LL/T law but someone you have fully checked out is well qualified and expert in the field.

                    Comment


                      #11
                      Hello Westminster, thanks again.

                      Our tenancy agreements do need some work. We have several different TAs in force, and it would be helpful to standardise them, but we'll clearly have to wait until the start of each new tenancy.

                      We feel stupid for using a LA again last year, especially after everything that's gone wrong with them in the past.

                      All of the tenancies are going well; with the exception of the one arranged by the agent.

                      I really would urge anyone reading this to ensure they meet the tenant themselves before entering into a contract, and don't rely on anything said by a LA.

                      Comment

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