Here is a question to the blog clinic fast track from Sanjay (not his real name) who is a tenant
I started a statutory periodic tenancy with my Corporate Landlord on 17 April 2017. I have repeatedly been asked to leave – nine Section 21 notices issued so far, all of them invalid.
The latest notice ordered me to leave on 17 January 2019. I wrote to the Landlord’s solicitors on 14/01/2019 to say that I had no plans to move and that they could take me to court.
I was issued with the latest Gas Safety Certificate in October 2018 before a S.21 notice was served on me in November 2018. I knew that the very first Gas Safety Certificate should have been handed to me before I moved into the property.
Thus, the Landlord’s representative contacted me to say that there would be no court case (because of non-compliance with the rules relating to gas safety). Instead, they want me to supply them with references and sign a new tenancy agreement – I was told that I cannot carry on living here if I ignore these 2 new conditions.
Both the Landlord and I are aware that the accelerated procedure for possession cannot be used in the absence of a written contract. I know that the Landlord intends to evict me as soon as a new agreement is signed and I refuse to do so. Besides, what legal right does a Landlord have to ask an existing tenant for references?
I intend to write to them when they put pressure on me to sign as soon as possible, to tell them that I still have a valid statutory periodic tenancy, even if there is no signed tenancy agreement. My problem is that I am unsure about the legislation to quote on this. Is it S. 54(2) of the Law of Property Act 1925 or S.5 of the Housing Act 1988?
I have another query related to this. I have been informed that the new contract would take effect from 17 February 2019, but I am pretty sure that the Landlord wants the tenancy agreement to be signed in advance. I have read somewhere that if a Landlord signs an agreement anytime before it takes effect, then it would be rendered null and void. Is this true?
Your landlord is trying it on!
Assuming a tenant has a ‘right to rent’ in the UK, and assuming the tenancy is an assured shorthold tenancy (which yours almost certainly is) there are only two legal ways a landlord can get vacant possession of a property rented as a residential tenancy.
- By the tenant moving out voluntarily, or
- A court bailiff or High Court Enforcement Officer acting on the authority of a Court Order for Possession.
So it follows that if you fail to move out, your landlord will need to get a Court Order. Which, from the information you have provided, looks impossible as the law currently stands.
Basic eviction law
There are realistically, only two bases upon which a landlord can recover possession through the courts against an assured shorthold tenant:
- The first is the serious rent arrears ground. But presumably, you are not in arrears of rent.
- The section is section 21.
(There are other grounds but in your case, they are unlikely to apply.)
However as you have rightly pointed out, if your landlords failed to serve a gas safety certificate on you before you moved into the property, section 21 is no longer available to them. As explained in this post.
It looks as if this situation is not going to change any time soon as the government have confirmed that they are not going to bring corrective legislation.
So when your landlords tell you that you cannot carry on living at the property unless you sign a new agreement – they are talking rubbish.
Periodic tenancies and the new tenancy agreement.
When the fixed term of an assured shorthold tenancy ends, a new ‘periodic’ tenancy will automatically spring into place under the provisions of section 5 of the Housing Act 1988.
This says that the new ‘periodic tenancy’ will be under the same terms and conditions as the preceding fixed term tenancy and the period will relate to the rent period. So if you pay rent monthly it will be a monthly periodic tenancy.
Which means that after the end of your fixed term, you will still have a tenancy. There is no need for you to sign a new tenancy agreement.
As the law stands at the moment then, you can safely refuse to sign anything – as normally landlords pressurise tenants into signing new agreements by saying that if they don’t they will have to leave.
However, in your case, your landlord cannot make this threat as you cannot be evicted – unless you fall into arrears or behave badly.
As section 21 is no longer available to your landlord you are effectively an assured tenant – with long term security of tenure. The only way this will change is if another case is taken to the Court of Appeal or Supreme Court which overrules the Caridon Property Ltd case (the case which decided the gas certificate point).
Unless the government changes its mind and brings corrective legislation after all.
So you can refuse to sign the new tenancy agreement – unless you consider signing it will be in your best interests. Which is unlikely. And you can also refuse to provide the references – unless this is specifically provided for in your tenancy agreement. Which is also unlikely.
This also resolves your final question – as my advice is not to sign the new contract.
What you could do now
I suggest you write to your landlords as follows:
Tell them that you have taken legal advice and you have been advised that they cannot evict you under section 21 as no gas safety certificate was served on you before you moved into the property. Under the ruling in the case of Caridon Property Ltd v Monty Shooltz, this is an absolute bar to their using section 21.
Say that you have also been advised that it is not necessary for you to sign a new tenancy agreement – as after your fixed term ends, you will have a perfectly valid periodic tenancy under the provisions of section 5 of the Housing Act 1988.
Go on to say that you have checked the provisions of your tenancy agreement (make sure you do this) and cannot find any obligation on your part to provide references. If they disagree can they please refer you to the relevant clause.
End up by saying that your legal adviser is concerned that they are telling you that you will be unable to live in the property if you fail to sign the tenancy agreement or provide the references. This is not the case as they can only require you to leave by obtaining a court order for possession. Which they cannot do.
If they make any further threats of this nature, tell them, you will be treating this as harassment which, pursuant to the Protection from Eviction Act 1977, is both a criminal office and a civil wrong entitling you to claim compensation.
Hopefully, that will stop them from making any more threats!
Incidentally, if you are willing to move out if you are paid compensation – there is no reason why you should not let them know this (in a ‘without prejudice letter’) and try to negotiate a suitable sum.
Although you will find it easier to do this using solicitors (see here for example where this solicitor achieved a substantial buy out where the tenant had a protected tenancy).
Good luck! Let us know how you get on.