6 month *replacement* AST: can S21 be served and actioned after a couple of months?

Collapse
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

    #31
    Originally posted by jpkeates View Post
    There is no minimum duration for an AST.

    If an AST has a three month duration and a s21 is issued after 1 month, possession wouldn't be granted after three months. When the s21 notice expired after the three months, the landlord could proceed to request a court hearing to continue with the repossession, unless the tenants did leave.
    Thanks.

    Originally posted by jpkeates View Post
    Your tenancy agreement term would have no effect (although it might possibly persuade a tenant until they asked someone).
    Sorry, would you mind clarifying. Is it the case that if I had a 6 month fixed term AST then I could issue the S21 after a month (for example) and then go to court two months later (so 3 months into the tenancy) and would be awarded possession then. Or is it the case that I would not be able to go to court (and/or be awarded possession) until the 6 months is up.

    Thanks for your help.

    Comment


      #32
      Originally posted by EthicalMan View Post
      would you mind clarifying. Is it the case that if I had a 6 month fixed term AST then I could issue the S21 after a month (for example) and then go to court two months later (so 3 months into the tenancy) and would be awarded possession then. Or is it the case that I would not be able to go to court (and/or be awarded possession) until the 6 months is up.
      You would not be able to go to court (and/or be awarded possession) until the 6 months is up.

      Your clause can't override the legislation, so your "3 month" s21 notice would be invalid.

      You cannot have flexibility on your side, so you can sell if you want, without the tenant having the same flexibility.
      When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
      Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

      Comment


        #33
        jpkeates,

        Thanks for your reply. In the contract I would given them the same flexibility as me - two months notice at any time. So even in this situation, and where it is a replacement tenancy, it is still the case that I have to wait for the six months to be up if it is a six month fixed term?

        Comment


          #34
          If either of you can end it with two month's notice there's not really a 6 month fixed term is there?
          Neither of you have any extra security*, so there's no benefit over leaving the agreement as periodic.

          You can't issue a s21 notice in the fixed term, a notice to invoke a break clause isn't a s21 notice and isn't covered by the Housing Act clause, so the wording is meaningless.
          Break clause wording is particularly difficult.

          There is no wording possible that will guarantee you that the tenant will leave in line with any notice that you give them.
          It is best to keep it as simple and standard as possible in case you need to go to court - where they are used to s21 notices in periodic tenancies and deal with it many many times a week.

          *for the avoidance of doubt, your proposal would give you a little extra security as in a periodic tenancy the tenant can give one month's notice ending at the end of a rental period. However, it's you that wants to be able to end the tenancy, not the tenant.
          When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
          Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

          Comment


            #35
            Originally posted by jpkeates View Post
            .....You can't issue a s21 notice in the fixed term, ...
            Err.. surely s21 issued in fixed term cannot normally(** see next..) expire before end of fixed term....
            ....a notice to invoke a break clause isn't a s21 notice....
            \errr....
            Aylward v Fawaz 1997 surely said that a Section 21 notice was effective in operating a break clause.

            A bit weird I grant, but if there is valid break clause for a landlord to use then he can operate it by issuing an s21 notice: It merely operates the break clause (i.e. ends fixed term, periodic continues assuming tenant remains..) but is not a "S21" notice as such.

            Or did I misunderstand... (again..)??
            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


              #36
              Sorry, you are right, you can issue a s21 notice in the fixed term, but not to expire within the fixed term.

              That case is not really helpful in this case, because it relates to notice outside the fixed period, when a section 21 could have been served (and in fat was) and relies on the wording used and the existence of a break clause that the wording could trigger.
              The proposed wording of the break clause isn't a break clause - it's trying to allow a s21 to expire in the fixed term, which it can't do.
              When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
              Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

              Comment


                #37
                Thank you both.

                As mentioned earlier I would like to have my name on a bit of paper - and the tenants I think would like us to sign something in order to have a formal arrangement set out between us. What is the wording for a contractual periodic contract please? I joined the Landlord's Guild to get access to their contracts but they only have fixed term ASTs not contractual periodic, and I have not found one on the web which I could use as a model.

                Or is there a bought one that you would particularly recommend?

                Comment


                  #38
                  You can essentially do what you propose by adding a break clause in your fixed term tenancy agreement.
                  You may face claims that the clause is unfair if it only allows you to break and not your tenant.

                  I think the simplest is to do nothing at all. A periodic tenancy is automatically created at the expiry of the fixed term tenancy.

                  Comment

                  Latest Activity

                  Collapse

                  Working...
                  X