Here is a question to the blog clinic from Jeanette who is a tenant
We signed an AST in June 2011 for a two year contract. At the same time our agent made us sign a S21 notice requiring possession on 29 June 2013 and also tried to make us sign one for 29 December 2012.
The contract ends in June 2013 and says that notice cannot be served before 30 December 2012. Is it right that the agency made us sign the first of these two documents at the start of the tenancy?
Does this mean that the agency is under no obligation to contact us again to give notice to leave? They have just asked us to pay £100 for them to ‘check’ with the landlady whether she wants us to stay past 29 December, which is even more confusing! I thought it was up to her to serve notice if she wanted us to leave early. We hope that our landlady would want us to stay past June 2013 but we don’t want to pay money for the agency to ask the landlady that question.
Have we chucked away any possibility of continuing on a periodic basis from next June ie protected by the original contract by signing the S21 last June? The agency will push for another fixed term contract and our Landlady is not very experienced. How could we convince her that it isn’t necessary to sign a new agreement and that she and us will still be protected?
There seems to be a lot of misunderstanding here all round.
First – as regards the s21 notices. I assume you signed them to confirm receipt as they don’t need a tenants signature to be valid. The main effect of them (assuming they are correctly drafted) is that if your landlord wants you to leave after the end of the fixed term and you refuse to go, she will be entitled to get an order for possession at court.
However they don’t mean you HAVE to go. If both you and the landlord are happy for you to stay, then you can stay.
Note also that it is what the LANDLORD wants that is important, not the agent. Many landlords and agents just serve a section 21 notice as a precautionary measure and the tenants stay on for months or years afterwards.
When your fixed term comes to an end, this is not the end of your tenancy (unless you move out at that stage). If you stay on, then under s5 of the Housing Act 1988, a new periodic tenancy will be created automatically, which will run from month to month on the same terms and conditions as your current fixed term tenancy.
You can see section 5 here. See subsections 3 and 3.
You don’t have to ask permission of anyone for this, it will just happen.
It might be an idea for you to have a word with your landlord (not the agents) and see what she wants.
The £100 fee sounds like a try on to me.
Also worth bearing in mind that the s21 will be invalid anyway if any of the following apply:
1) It was given (served) before the tenants took residence and the tenancy began.
2) It was given (served) before the deposit was protected in an appropriate scheme
3) It was given (served) before the agent had iven the tenant the information aout deposit protection required by law.
In all the above, the word ‘before’ can mean 30 seconds(not days)- therefore it can be very difficult for the landlord/agent to prove otherwise if the tenant claims the s21 was served before the deposit info was given or the tenancy began.
Thats very true David, thanks for pointing that out.
Couple of popints Tessa I’m surprised you didn’t cover.
First the tenants want direct contact with the landlord. Under s1 of Landloed & Tenant Act 1985 they are entitled to a direct land contact address for the landlord if they demand it. The agent has to provide this within 21 days.
Second why did the agent seek to serve a s21 to expire on December 29th when it is simply totally unenforceable (unless there is a break clause for that date in the agreement of course, a distinct possibility in a 2 year agreement of course).
Obviously this agent is a comple scam merchant – £100 to talk to a Landlord about a renewal, for which they will also then doubtless charge the tenants a fee if one does develop. If they are members of any regulatory body they want reporting – of course they won’t be.
Could it be argued that the Notices are inadmissable at Court as over 12 months since they were served?
@Industry Observer – I have to leave something for you to say ;)
@Miles – its only section 8 notices which have the life of 12 months. S21 notices last indefinitely, unless the tenancy is ended (eg by a new tenancy agreement being given to the tenant)
“Many landlords and agents just serve a section 21 notice as a precautionary measure and the tenants stay on for months or years afterwards.”
Landlords should bear the above point in mind before they get irritated by tenants who stay on inspite of a section 21 notice. Given the routine service of precautionary section 21 notices it isn’t practical for a tenant to move every time time one is served.
“S21 notices last indefinitely, unless the tenancy is ended (eg by a new tenancy agreement being given to the tenant)”
Which means a tenant staying on a periodic tenancy with a valid section 21 has a “Sword of Damocles” hanging over them. The landlord can kick off getting an order for possession at court whenever he likes without giving the tenant any notice. Technically the section 21 was the notice but what use is that if the tenant was told not to worry as it was “a precautionary measure” and if that all happened months ago?
On the other hand if a tenant moves when a section 21 notice requested and then finds out the landlord didn’t want him to leave can be be charged another months rent in lieu of notice?
Ideally landlords and tenants should talk to each other about when the tenant is expected to depart.
But I am afraid technically the tenant should give notice to quit even if a s21 notice has been served.