The notice was served before the tenancy agreement was signed
When I mapped out this series, I had forgotten about this point, and I was reminded of it by something someone said in one of the comments.
It is quite common for a landlord or agent to arrange to serve the section 21 notice at the start of the tenancy.
Then the thing is done, and they will not be at risk of finding that, at the end of the fixed term, it has been overlooked and that they will have to wait a further two months before getting the property back.
However unfortunately you need to be a bit careful. My advice is that you should NEVER serve the notice at the time of signing the tenancy, but always at least one day later.
Its a bit reminiscent of the old section 20 notices, but in reverse. Section 20 notices had to served before the tenancy was entered into, and therefore landlords were warned to leave at least a day between serving the notice and signing the tenant up.
Here it is different – here the notice needs to be served AFTER the tenancy is signed, as you cannot serve a notice to end a tenancy which has not started yet.
The thing is though, if the two documents are dated the same date, you will have difficulty in proving the order in which things happened.
The Judge (in a claim for possession based on section 21) might be happy with your evidence saying that the tenant had signed the tenancy before the notice was served. But then again he might believe the tenant who said it was served earlier.
It is possible that he may not think it’s an important point. We have not had a case on this issue (to my knowledge).
But personally I wouldn’t risk it. The best way to prove the order in which things are done is to have them dated with a different date. If your tenancy is signed and dated on 1 January and the section 21 notice is signed as received on 2 January, the problem cannot arise.
It takes a long time to bring a claim for possession. If you lose, then you will have to start all over again which could take six to eight months or more. You may even be ordered to pay your tenants legal costs.
Its worth the extra trouble of serving the section 21 notice a bit later.
This is an issue that I have dealt with for some of my Letting Agent clients whose policy is to deal with s21 at the outset.
Remember that the s21 Notice cannot be a valid one until the Deposit has been protected
My suggestion is that the way to deal with this is for a checklist to be prepared for the Agent to work through on grant of the tenancy. This contains an entry for completing the AST agreement and giving a completed copy to Tenant. The next entry deals with protecting the Deposit (which should be done online there and then, either by transmission to DPS or TDS/MyDeposiits)and giving relevant Prescribed Information to the Tenant. The next entry is signing s21 Notice on behalf of Landlord and giving to Tenant. This is followed by getting Tenant to sign a receipt for the s21 Notice which specifically states that the notice was given and received after the Tenant had been given the signed AST and the Prescribed Information on Deposit Protection.
This receipt should therefore cover this possible defence. The checklist, backed up by a statement from the Agent that these steps were undertaken in the correct order, ought to seal the issue for the judge if there is such a defence
Unfortunatley this may not be sufficient to stop the court giving a hearing on an accelerated claim if such a defence is raised
Great point Tessa and one I find some housing advisers miss too.
Another good reason for not serving an S21 right away relates to deposit protection. The landlord has 2 weeks from receiving the deposit (rising to 30 days under the Localism Act) to protect the deposit but a S21 isnt valid unless the deposit was protected before service of notice.
In our office we always check dates of service and protection as a homelessness prevention tool to shoot the notice down
Just thinking aloud, which may not be the brightest thing to do, but a notice is deemed serve the day after.
For example, if I pop down to the property today, hand delivered the notice to the tenant, it would be deemed served tomorrow.
Does that have any effect on the notice being given on the same date as the tenancy starting?
Thanks everyone for your comments. Simon, I like the idea of the agents check list, I may well do one.
@Darrel – feel free to think aloud on the blog – thats all I am doing a lot of the time ;)
However if the notice is handed to the tenant before 4.30 it will be deemed served that day. Plus of course as Ben and Simon have said, there is the issue of the deposit to be dealt with.
My feeling is that it is best to serve the notice at least a week after the tenancy has been signed. A good time might be the first inspection visit, when it can be delivered by hand.
Hi Tessa
Love the blog and agree with your advice.
Where does the deemed service point come from though? I wasn’t aware there was any deemed service provision that applies to section 21 notices.
@Ed thanks for your comment and glad you like the blog.
Re service – there is a section in CPR rule 6 which applies to documents which are not claim forms. I generally act on the basis that this will apply to notices 9 (as they will be a material document in possession proceedings) – or can you point me to something which says otherwise?
I’m not sure that you can rely on CPR6.20 as a deeming provision for documents that are not part of the court process. Certainly it is persuasive, but not conclusive.
Bear in mind s196 Law of Property Act 1925, s23 Landlord & Tenant Act 1927 and s7 Interpretation Act 1978, all of which provide for a deemed service in cases where notices are served by recorded delivery, even if not actually collected by the Tenant. These were all considered in Blunden v Frogmore in 2002, although that was in the context of a commercial property.
It will all depend on the attitude of the DJ at the relevant hearing. I think, the best way to try to deem service of a s21 notice is to send it by recorded delivery, but this is still no substitute for a hand delivered notice backed up by a recepit or statement of service