Here is a question to the blog clinic from Nathan (not his real name) who is a tenant:
My landlord is exercising a 6 month break clause in my contract. However, he has not protected my deposit within 30 days nor issued Prescribed Information.
Is the break clause still effective? Or does the LL need to meet the requirements of issuing the S21 for the notice to be effective?
I have asked the LL to return our deposit in full and then we will leave by the date they have requested.
They are saying that since they have not issued the S21, the issue regarding the tenancy deposit not being protected on time and none issuance of Prescribed Information is irrelevant. They have only sent us a letter saying that they want us to surrender the property in 2 months time.
If I stay in the property beyond the 2 months, will the LL first need to issue us with a S21, or can they go straight to the court to request possession of the property?
Answer:
There is a difference between activating a break clause, ending the tenancy and actually being able to get possession. Let us look at the different strands.
1. The break clause.
There is nothing to prevent a landlord using a break clause so long as it is valid. He will not be prevented from using it because the deposit was not protected.
So the landlord can end the fixed term. However, what happens then? A new tenancy will be created automatically under s5 of the Housing Act 1988. This will be a ‘periodic’ tenancy, normally a monthly periodic tenancy if the rent is paid monthly.
So instead of being (for example) half way through a fixed term you will (in most cases) have a monthly periodic tenancy. But you will still have a tenancy.
2. Getting physical possession.
The fact that the fixed term was ended, DOES NOT entitle the landlord to possession.
As I said above, a new periodic tenancy will take its place – you will not (for example) be a trespasser/squatter. If the landlord wants to get possession he will have to get a court order for possession first.
The reason for this is the Protection from Eviction Act 1977.
This act says that (apart from a few exceptions which do not apply here) a landlord will be committing a criminal offence AND a civil wrong (entitling the tenant to claim for damages) if a tenant is evicted other than by a Court Bailiff or Sheriff under the authority of a Court Order for possession.
3. Getting a court order
The procedures for getting a court order for possession are very formulaic and I have discussed them elsewhere on the blog. If you are not in arrears of rent, probably the only procedure your landlord can use is section 21.
However, if your landlord has not protected the deposit, he will not be able to serve a valid section 21 notice on you unless he has first returned the deposit money to you.
So possession based on s21 will not be available to him. He can ‘go to court’, but if he does he will (or should) lose his case.
4. What are your rights?
You are entitled to stay in the property until your landlord gets a court order for possession and then a bailiffs appointment.
He has no right to force you to accept a surrender if you do not want to. If he tries to do this, it will be harassment which is a criminal offence.
To be in a position to get an order for possession under section 21, your landlord will need to:
- Return the deposit money to you and
- Serve a section 21 notice on you (minimum notice period is 2 months)
So you can stay in the property for the foreseeable future.
If your landlord refuses to accept this situation I suggest you speak to the Tenancy Relations Officer at your Local Authority who will advise you. Or you can get help from Shelter or the CAB or a solicitor (ideally at a Law Centre, if there is one nearby).
Note: Tenants who are being threatened with eviction by their landlords may find my ebook >> here helpful.
Tessa I must be missing something very fundamental here, which makes it very worrying.
To exercise the break clause the way I read the item it would be a s21 notice because the tenancy is still within the fixed term.
But a Landlord cannot serve a valid s21 notice until he has protected the deposit.
Is the item and are you saying that because the Landlord has simply written a nice letter and not issued a s21 notice that they are entitled to mandatory possession? Which if the letter does not state possession is sought under s21 they most certainly are not entitled to.
Or only if Nathan agrees to mutual surrender which given the barrel he has the Ll over is the last thing he should agree to.
Just because they have not issued a s21 notice that is a red herring. Because they missed the 30 day deadline for BOTH protection and PI service they have committed the offence(s) and I’d say are looking down the barrel at least at a x2 award plus deposit return anyway, no matter what Nathan has said to them suggesting return it and they’ll leave.
IO: They can only exercise a break clauase if there is one in the tenancy agreement.
If there is, then that will (depending on how the clause is worded) end the FIXED TERM of the tenancy. However it will NOT entitle the landlord to possession. Becuase the Protection from Eviction Act says so.
A new periodic will arise on s5 after the broken fixed term ends.
To get possession the landlord will need to use s21 which, if the deposit is not protected, they can’t until they comply with the act. By returning the deposit money etc.
Where on earth in my post do I say that they can get possession based on a ‘nice letter’??? Are you mudddling up the question with my answer?
The question is indented but maybe I will make it italic so it is easier to see where the question ends and my answer starts.
Maybe – obviously a break clause can only be exercised if it exists!! I do think the whole is a little confusing, at least to me.
The comment by the agent that because they haven’t issued a s21 being irrelevant is of course wrong, as there it is they who are confusing the exercise of the break clause and whether an offence has been committed.
They cannot issue s21 until the deposit is refunded, and they can exercise the break clause by way of a simple letter as you say depending on how clearly and well worded the break clause is expressed.
But no matter what they do, agree mutual surrender, return deposits etc, the TDP offence has been committed and to say it is irrelevant is an interesting defence!!
The tenancy going periodic is interesting – means if they don’t reprotect and re-serve PI within 30 days of that event they’ll have committed the offence twice!!
My comment on the item and your post and s21 v nice letter is that most break clauses are triggered with a s21 notice to ensure mandator possession is available to the Landlord if the tenant does not comply with the notice.
This case is complicated by the ‘notice’ requesting surrender and the tenant suggesting the deposit is returned and they will comply and move out on the date that suits the Landlord. Not come across a tenant being that accommodating before.
Just a thought. Ther is no specified wording for a ‘S21’ issued within the period of a fixed term and as long asit expires on or after the end of the fixed term and not earlier than 6 months it would be valid.
It only has to comply with two months and that tenant knows what is expected. In thi case they know the LL wants them to leave.
However the notice will be inoperable due to the lack of deposit compliance so the tenancy continues anyway. The tenant should be aware that the landlord may withhold the deposit whenever the tenancy ends and should take appropriate action to ensure it is not lost.
Colin
Why would it need to be no earlier than 6 months? If you mean the right to occupy for 6 months on an AST that only applies to the initial occupancy after the first grant by the Landlord i.e. the first 6 months of occupancy.
If the break clause is in a renewal agreement, which is very commonly the case as the renewal is frequently for longer than the initial 6 months ‘trial’ tenancy to see how everyone gets on, then the break clause could be as soon in that renewal term as the parties agree – can it not?
I may be confusing this item further by referring to s21 in connection with notice being dserved under a break clause. It’s just that in my experience whilst a letter will of course suffice and s21 can always be issued later if the tenant does not vacate agents almost invariably use a s21 as the break notice.
Always assuming they have stated in the break clause that this can be done, not fatal if they haven’t but far better if they have.