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.