Confused Tenant

[dgardener]

Morning all, looking through the site I think it's OK for tenants to ask for advice?

This is a question aoout notice specifically a s21.

I have also been given conflicting advice from the CAB and Shelter so I am hoping that you might be able to help me understand how it should work.

My specifics are intial fixed term 12 month tenancy started 28 October 2011, this moved into a periodic after the 12 months, rent has always been paid on 1st of each month since the start as agreed with LL.

I have been advised by Shelter that a s21 is date dependant and unless served on or before the date of the fixed term start date/rent payment date then it wont be valid, CAB on the other hand referred me to a Spener v Taylor case and advised that a s21 can be served at anytime during a periodic tenancy as long as it provides at least 2 months notice, I have tried to double check this , and I think (probably wrongly) that this is dependant on whether a s21(1)b or s21(4)a is used?

The other question that I have is when is it deemed served, if it is hand delivered is it deemed served on that day and then notice expires on that date 2 months later? So for example if it is date dependant and it's served and dated 28 August, then expiry and move out date will be 28 October? or does the fact that the rent is paid on 1 of each month have any bearing?

Thanks for your help on this (especially on a Sunday)

Dee

[Mrs Mug]

Please answer the questions in the link below with exact dates.

http://www.landlordzone.co.uk/forums...ll-new-posters

[dgardener]

Please see responses below

Q1 – Where is the rented property located (England / Wales / Scotland / N Ireland)? England

Q2 – What type of Tenancy Agreement (TA) is this e.g. sole tenant / multiple tenant / room only? Sole Tenant

Q3 – What date did current TA start dd/mm/yy? 28 October 2011

Q4 – How long was initial fixed term (6/12/24 months / other)? 12 months

Q5 – Does the TA state that rent is due weekly? / 4-weekly? / per calendar month (if so, on what same date each month)? Per calender month on 28th but pay 1st of each month.

Q6 – Did the TA require a tenant damage deposit to be paid? If so, on what date was this paid (dd/mm/yy)? Yes, paid on 28/10/2011

Q7 – If your query relates to a notice for repossession from the landlord (a Section 8 or Section 21 notice) or a tenants's notice to quit to the landlord, please provide the exact date the notice was sent/received (dd/mm/yy). First s21 notice (copy) was received by email on 29th July, this was backdated to 29th June and she claimed to hand deliver on that day, she has since admitted that she lied abut that notice being served. 2nd notice 21(4)a through my door 28th August dated 28th August with a notice leave date of after 28th October.

Q8 – Does the landlord live in the same property as the tenant? No she doesn't

[theartfullodger]

When did you get info from Shelter? Law on s21 has been changing this year.

Was deposit protected within 30 days of you paying it & Prescribed information served prior to s21 being served?

[mariner]

CAB advice is more up to date than Shelter on this question. The Appeal Court confirmed that s21b can be used during SPT and no expiry date is required, it expires 2 cal months months later. In theory there is only one s21, but if Judge is presented with a s21a (periodic term) which does require an expiry date, he may reject it if dates don't tally.
Hand delivered Notices before ~5pm are deemed served same day, later delivery then next day. Ideally LL should be able to prove time of delivery.

Rent payment day is immaterial, it is the AST Rent Due date that matters.

Please add a bit of meat to the bones of your query.

[jpkeates]

If the notice says its served under 21(4)a it should end at the end of a rental term - I don't think Spencer v Taylor has changed that.
If the notice says it is served under s21 (for example), it can be either a notice under s21(1)b or a s21(4)a, and it would be OK as s21(1)b doesn't need to end at the end of the rental term.

It will come down to how picky the judge wants to be.

However, the landlord will get it "right" eventually, and you are going to have to leave the property sooner or later.

[jjlandlord]

My conclusion from Spencer v. Taylor is that as long as the notice and circumstances comply with s.21(1) then possession must be granted.

[jpkeates]

I am not in a position to disagree, but the text of the decision shows that they considered how the notice would operate under either s21(1)b or s21(4)a.

If the notice is specifically served under 21(4)a, I don't see how it can operate under s21(1)b instead.
If it isn't specific (say just referencing s21 of the act) , which is how I have understood the notice in Spencer v Taylor, it can obviously operate either way.

However, I am happy to admit I'm not 100% sure I'm right - re-reading the decision hasn't helped.
8-)

[mariner]

I concur with jjlandlord viewpoint.
This s21 was served during fixed term. Even if s21 a was incorrectly used, the expert pundits hailed the Spencer v Taylor decision as a simplification for LLs, though IIRC Spencer v Taylor used s21 b when served during SPT (21a).
The unexpected wrinkle was the abolition of end of Tenancy Period requirement in favour of 2 cal month expiry from date of service and poss of some rent refund.

In this case OP can either vacate on last day of fixed term or on expiry of 21, though the latter option should require OP to serve due NTQ, though I doubt LL would bother.

[dgardener]

theartfullodger,

Info from Shelter was in July as was the advice from CAB.

No deposit wasn't proetected until a year after the tenancy started, but she returned it to me in July in lieu of what she thought was the last months rent, CAB advised me to keep the deposit.

[dgardener]

CAB advice is more up to date than Shelter on this question. The Appeal Court confirmed that s21b can be used during SPT and no expiry date is required, it expires 2 cal months months later. In theory there is only one s21, but if Judge is presented with a s21a (periodic term) which does require an expiry date, he may reject it if dates don't tally.
Hand delivered Notices before ~5pm are deemed served same day, later delivery then next day. Ideally LL should be able to prove time of delivery.

Rent payment day is immaterial, it is the AST Rent Due date that matters.

Please add a bit of meat to the bones of your query.

I'm not sure how this works so replying to each comment, what more info can I provide?

[dgardener]

jpkeates,

It was served under a 214a, absolutely understand that I need to leave, finding something else has proved pretty difficult this time of year, no sooner do I register for something its gone, I'm worried that worse case I don't manage to secure something by October, so wanted to buy some time if I needed to....

[dgardener]

Thanks for all your help, Just readng through some of the comments, the s21 4a was served during periodic not fixed term... I guess in a nutshell and reading between the lines it depends on the judge on the day if it goes that far being that the changes are quite recent.

In your opinion is the s21 I have valid with the dates I have provided?

[jjlandlord]

A notice complying with s.21(1) does not have to mention s.21 at all and a notice complying with s.21(4) only needs to mention s.21.
All these notices specifically mentioning s.21(1)(b) or s.21(4)(a) are just too verbose, IMHO.

Especially, under s.21(1) a valid notice must simply give 2 months notice. Clearly a defective notice mentioning s.21(4) can meet that requirement.