Here is a question to the blog clinic from Steve who is a landlord.
A section 21 notice was served on my tenants to coincide with the end of the tennacy but they didn’t move out on the day requested. Their rent is mostly paid my the Local Authority and the tenants would not be rehoused if they voluntarily left.
A possession order (required before LA would take acton) has not yet been sought as my managing agents could not be sure I would be able to reclaim costs and the tenants were actively looking for somewhere else to live.
They have done so but only given 4 days notice which means there is a high probability of a period with the property empty. The legal advice they have been given is that they are not required to give any notice due to the section 21. Is this correct?
Is there any cost recovery / penalty clause for the tenants not moving when they were required?
Landlords do not really have any power to force tenants to leave at a time of their choosing. The only time a tenant can be forced to leave is by a court bailiff after a court order for possession has been obtained.
So the question is, can landlords claim rent in lieu of notice?
If they move out shortly before the end of the fixed term the answer is “no”. However if they move out when they are a periodic tenancy, the strict answer is “yes”. They need to give (assuming they pay rent monthly) a minimum of one months notice, ending at the end of a period of the tenancy.
So if their fixed term ended on 5th June, their periodic tenancy will run from the 6th day in the month to the 5th. So they will need to give notice ending on the next 5th day in the month after one month.
I don’t think that the fact that the landlord has served a section 21 notice will change this. A s21 notice does not end the tenancy. It is just a notice which entitles the landlord to claim an order for possession at court.
I’m curious, if a tennant over-stays, can the landlord keep the security deposit or portion thereof to compensate for lost rent?
I want to highlight a small point made in the piece and a common one raised, about homelessness units not picking up before a possession order.
The HOmelessness Code of Guidance, which is the bible for local authorities says on this point in Paragrpah 8.32;
The Secretary of State considers that where a
person applies for accommodation or assistance in obtaining accommodation,
and:
(a) the person is an assured shorthold tenant who has received proper notice in
accordance with s.21 of the Housing Act 1988;
(b) the housing authority is satisfied that the landlord intends to seek possession;
and
(c) there would be no defence to an application for a possession order;
then it is unlikely to be reasonable for the applicant to continue to occupy the
accommodation beyond the date given in the s.21 notice, unless the housing
authority is taking steps to persuade the landlord to withdraw the notice or allow
the tenant to continue to occupy the accommodation for a reasonable period to
provide an opportunity for alternative accommodation to be found.
Ben, unfortunately they’re not rules, just guidelines for best practice. In reality, Local Authorities are refusing to accept that the Landlord is intending to seek posession until a Court Order for posession arrives on the door mat.
If Section C) wasn’t so funny I’d cry! So it’s perfectly reasonable and considered best practice for an AST tenant to remain in occupation after a valid S21 has expired provided the Local Autority are trying to convince the landlord to let them stay? Oh well, that makes it all OK then! The last time I looked it was the Landlord’s name on the land registy not the Local Authority’s!
Paragraph 8.32 is almost never ever accepted in homeless applications (certainly in London) – because case law trumps COG – and has established that client has an absolute right of occupation until the date the warrant is executed.
I have only been able to win this argument a few times usually when there has been something else wrong with the accommodation (ie its unaffordable or in disrepair).
It really is a horrible position for both the landlord and the tenant – the tenant cannot leave early as if they do they may be literally homeless,
but if they don’t then they generally get held liable for costs (not that they can afford to pay them) and end up with a really annoyed landlord
And the landlord has the upfront costs of issuing proceedings, the delays, the uncertainty about when they actually will get possession etc (and usually get annoyed with the tenant as a result)
Yeah the code gets thwarted by Regina v. Croydon ex p Jarvis, where the judge said the council had:-
“considered fully the question of whether it would have been reasonable for
the applicant to continue in occupation (Housing Act 1985 s58(2A), now
Housing Act 1996 s175(3)). It had expressly considered: (a) the respective
positions of the landlord and tenant and the expense of possession proceedings;
(b) its own costs of providing temporary accommodation; (c)
the general housing circumstances in the area (which effectively had been
treated as determinative, but all relevant matters had been considered and
it was for the council to decide what weight to attach to any particular
matter.
Going on to say:-
“I am not saying that in all circumstances
a council can say “wait until you are evicted”. It is lawful for them
to adopt that attitude if they consider all the individual circumstances.’
The council had given careful thought to what it was going to do and
detailed reasons for its decision.
But I do not say that the same would necessarily apply in other cases where
proper reasons were not given”
To be fair to homelessnes units though, the vast majority of approaches made are from ASTs about to be terminated and if they interpreted all cases under Para 8.32 we would be more snowed under than we already are