Here is a question to the blog clinic from Natasha (not her real name) who is a letting agent. She has questions about the section 21 notice expiry date:
We write tenancies for a fixed term of one year with a break at six months, which means we can serve the S21 at the end of the first four months of the tenancy to gain possession at the end of six months if the Landlord instructs us to do so.
All fine and dandy because the new S21 allows you to serve notice once the first four months are finished.
BUT I have always been told to allow two working days for service of the notice, SO, if I serve the notice two working days before the end of the first four months of the tenancy, stating that possession is required at the end of six months, will the notice be invalid because I actually served it before the end of the first four months???
Should we be serving the notice on the first day of month 5 and quote the possession date as two months and two working days after that date? If so, what happens about the extra two/three days rent??
Answer
You are quite right, as the new rules prohibit serving the section 21 notice during the first four months of the tenancy, it is not possible any more to give notice which will end on the last day of a six months fixed term – unless it is a renewal.
There is nothing anyone can do about this, it is the way things are now.
Do not serve your notice during the fourth month as this will make it invalid.
However the fact that the notice cannot end on the last day of the fixed term does not mean that the tenants cannot vacate on that day. If they stay on, this will trigger a periodic tenancy:
- If you have served a section 21 notice, then if they leave mid way through the month as a result of this, they will only be liable for a proportionate part of the rent and if they have paid rent in advance, will be entitled to a refund (Deregulation Act 2015 s40)
- If you have not served a section 21 notice then the tenant will (assuming the periodic tenancy is a monthly one) need to give one month’s notice, to end at the end of a period of the tenancy. If notice is not given, then you are entitled to rent in lieu of notice.
So if you are happy for the tenant to remain, you are better off not serving a section 21 notice.
Section 40 of the Deregulation Act is very badly drafted (well, of these new provisions are not well drafted and not useful..).
Arguably it only applies when the landlord obtains a possession order, as in all other cases the tenancy does not “end as the result of the result of the service of a notice under section 21”.
In any case, the landlord may ensure that the tenancy does not end mi-period by surrender in order to completely bypass the provision.
Therefore, I would advise landlords not to feel obligated to refund any rent paid in advance if they do not wish to.
The post is based on what the section is supposed to mean.
But you’re right, it is a bit of a dogs dinner.
If the rent rebate provisions are only available via court order then I suspect it is unlikely to be used at all as few landlords will want to proceed to hearing if their tenants have moved out.
When the case goes to court it is not possible to predict when the tenancy will actually end: Judgment may occur on any date, order may require possession on any date, and bailiffs may also execute the order on any date.
So I suspect that section 40 will apply to the majority of court cases.
I would really like to know what the section is supposed to mean but I can only try to guess based on the wording!
So on a 6 month tenancy you have a 1 day window to serve the S21? Can this be done by email or does it need to be served by hand?
One agent we use now only offers 7 month fixed terms so that they can fit in the service of the s21 (and 2 month period) after the 4 months have lapsed.
A break AT 6 months usually means notice served start of 7th month and possession sought from early in 9th month onwards. Very accurate wording would be needed to break at 4 to end at 6 (in old money)
In new money many people and i think some pots here think because you cnnot serve until start of month 5 you have to date the notice end of month 7. That is incorrect serve say May 1st after date can be 3rd or 4th July say, for either tenancy fixed or periodic.
Why are the law writer not able to get basic details correct! They could have fulfilled their aims by saying a S21 could be be served within the first 3 months of a AST.
At least with the new rules the notice does not have to end on a “magic date”.
Until serving a S21 has a real cost to the landlord/agents, lots of landlord will automatically serve them as a way to get tenants to sign a new AST or just “because something may go wrong”.
Why do landlords use S.21 ? If you are a landlord why would you want to get rid of a good tenant. If it is a bad tenant you wish to get rid of then use a Section 8 (practically all bad tenants have rent arrears).
Because if you use the section 8 procedure, tenants can slow things up by claiming (generally wrongly) that they have paid the arrears / not received the form / the landlord has harassed them or the property is in poor condition and they want compensation, etc etc – all of which will delay the procedure during which time (of course) the landlord is not getting paid any rent.
With a properly set up section 21 notice and claim, tenants cannot do this.
Also with the accelerated procedure there is normally no hearing whereas for s8 you need to attend court (with all the time and travel involved), employ an advocate etc.
So its not surprising that landlords go for s21. I always advise it.