Claim issued by L, Questions regarding litigation over withheld last month rent.

[Readalot]

I think I agree with your point...!

I hope that we are both wrong than. Hopefully, someone can suggest a way to prove us wrong. On gut feeling level, it should not be like that. But 'gut feeling' would make a horrible argument in the court.

[Readalot]

To perhaps embellish upon this, there is nothing in either S20 or S21 that states that the act of expiry of a valid notice converts a fixed AST to a SPT.

 

That would be section 5. If T stays for whatever reason after end of fixed term, tenancy is being automatically converted into SPT. (out of top of my head)

Edited August 25, 2010 by Readalot

[MrShed]

Good point...but again, I cannot see anything that would specify that a valid notice would change a fixed AST (or AT for that matter) to a SPT.

[Planner]

Your argument would work perfectly well if we were talking about a periodic tenancy, because it would be subject to s21(4). However, in this case we are talking about a fixed-term tenancy and as such s21(1) is applicable. As far as I can see the only 2 requirements to the notice, namely, 21(1)(a) - that fixed term tenancy has come to the end; 21(1)(b) - more than two month notice is given. 21(1) does not even mentions any notice expiry date, unlike 21(4).

 

Basically the question here is whether 21(1)(a) referes to the time of notice expiration or to the time of, let's say, possesion hearing.

 

I am digging here and looking for further confirmation that your point is corect, because a TRO from local concil has an opinion that the section 21 notice we discuss is indeed valid, even after I brought to her attention your arguments.

 

Actually, if we follow 21(1)(a) to the letter, than even if on "day 1" of fixed term 1 year AST L serves s21 notice stating that he is requires possesion of the property, for example "from day 65" than he is indeed entitled to start possesion claim on the "day 366" of said tenancy.

 

Any thoughts?

 

Sorry you disagree. Not much more I can say really. The procedure for correct service of a s.21 b notice is that it most be dated to end at a point after the exipiry of the fixed term. Any s.21 b notice served to end on the day of fixed term expiry, rather than after fixed term expiry is invalid. Simple as that.

[MrShed]

Planner - I ordinarily would agree with you, but can you show where this says this in the HA?

 

I cannot find anything that states this - I assume it must be there, but neither of us can find it!

[Readalot]

Planner. I very much value your input here. I actually think that you are correct and I am wrong. Many sources indeed confirm your point that s21 notice shall not expire before the end of fixed term. What I am looking for is an authority which I can quote in the court if needed. Please have a look at my post #18 http://www.consumeractiongroup.co.uk/forum/showthread.php?274316-Claim-issued-by-L-Questions-regarding-litigation-over-withheld-last-month-rent&p=3102607&viewfull=1#post3102607 .

 

I cannot really say in the court something along the lines

Come on.., there is nothing to argue about. Planner said that this notice is invalid therefore it is invalid. Please do not allow Landlord's application for the possesion order

 

Thank You.

[Planner]

Planner - I ordinarily would agree with you, but can you show where this says this in the HA?

 

I cannot find anything that states this - I assume it must be there, but neither of us can find it!

 

21 Recovery of possession on expiry or termination of assured shorthold tenancy

(1) Without prejudice to any right of the landlord under an assured shorthold tenancy to recover possession of the dwelling-house let on the tenancy in accordance with Chapter I above, on or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy, a court shall make an order for possession of the dwelling-house if it is satisfied—

 

(a) that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than a statutory periodic tenancy; and

 

(b) the landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than two months' notice stating that he requires possession of the dwelling-house.

 

(2) A notice under paragraph (b) of subsection (1) above may be given before or on the day on which the tenancy comes to an end; and that subsection shall have effect notwithstanding that on the coming to an end of the fixed term tenancy a statutory periodic tenancy arises.

 

(4) Without prejudice to any such right as is referred to in subsection (1) above, a court shall make an order for possession of a dwelling-house let on an assured shorthold tenancy which is a periodic tenancy if the court is satisfied—

 

(a) that the landlord or, in the case of joint landlords, at least one of them has given to the tenant a notice stating that, after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the dwelling-house is required by virtue of this section; and

 

(b) that the date specified in the notice under paragraph (a) above is not earlier than the earliest day on which, apart from section 5(1) above, the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the notice under paragraph (a) above.

Edited August 25, 2010 by Planner

[MrShed]

Thanks Planner, but which specific part of S21 specifies what you have said above? To my reading of it, none does.

[Planner]

Thanks Planner, but which specific part of S21 specifies what you have said above? To my reading of it, none does.

 

(a) that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than a statutory periodic tenancy;

 

(b) above is not earlier than the earliest day on which, apart from section 5(1) above, the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the notice under paragraph (a) above.

[Readalot]

TRO from a local concil has argued in response to that :

21(4) is not applicable because it relates to a periodic tenancy and we are talking about fixed term tenancy.

[MrShed]

The problem though Planner as highlighted by the OP is that this all refers to a court hearing for possession.

 

It does NOT state that these conditions mentioned by you need to be in place at the time of expiry of the notice, merely at the court hearing for possession.

[Planner]

TRO from a local concil has argued in response to that

 

21(4) is not applicable because it relates to a periodic tenancy and we are talking about fixed term tenancy.

:

 

It MUST be a periodic tenancy by the time you are seeking possesion on a s.21 as one cannot terminate a fixed turn tenancy via s.21!! Sure you where not talking to the dinner lady?!!

 

The relevant bit is

 

(1) Without prejudice to any right of the landlord under an assured shorthold tenancy to recover possession of the dwelling-house let on the tenancy in accordance with Chapter I above, on or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy, a court shall make an order for possession of the dwelling-house if it is satisfied—

 

(a) that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than a statutory periodic tenancy; and

 

(b) the landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than two months' notice stating that he requires possession of the dwelling-house.

[MrShed]

Planner - as usual, you make a good point.

 

OP - the reason its a good point because you cannot (or the landlord cannot) rely on the timing of the requirements being at court date for section 1 but not section 4...(sorry to state the obvious)!

[Readalot]

It MUST be a periodic tenancy by the time you are seeking possesion on a s.21 as one cannot terminate a fixed turn tenancy via s.21

 

AST becomes a "statutory periodic tenancy" once T does not vacate the property at the end of AST and if no other tenancy is agreed, by virtue of s5 HA 1988. Is it not?

[Planner]

AST becomes a "statutory periodic tenancy" once T does not vacate the property at the end of AST and if no other tenancy is agreed, by virtue of s5 HA 1988. Is it not?

 

Im not sure what point your trying to make as we are talking about s.21 notices? If the above didnt occur i.e. no periodic tenancy arose because the tenant left, then where does the s.21 point come into play?

 

Which local authority are we talking about by the way?

[Readalot]

OP - the reason its a good point because you cannot (or the landlord cannot) rely on the timing of the requirements being at court date for section 1 but not section 4...(sorry to state the obvious)!

ok. so we have two options.

 

option 1: the relevant time is the time of expiration of s21 notice. In this case 21(1) not applicable, and section 21(4) is not applicable either and therefore possesion order shall not be granted.

 

option 2: the relevant time is the time of hearing. I understand that at the time of hearing we have 'statutory periodic tenancy' In this case both 21(1) is applicable AND s21(4) is applicable as well. Therefore, possesion order shall not be granted pursuant to section 21(4), but shall be granted pusuant to section 21(1). Therefore s21 notice is valid and the possesion order shall be granted.

 

option 3: timing is different for 21(1) and 21(4) which is not accepted as a valid argument.

 

Sorry for being so thick here. But I still do not get it. Could you please try to answer my question in the end of post #18 above to illustrate your point.

[Readalot]

With reference to my previus post, however. The notice has statement on top Housing Act 1988 Section 21(1)(b). Therefore it refers to 2 month notice clause only. Even if we accept that it is refering to s21(1) than it is invalid because it is expires before the end of the term.

 

I think this is it. And this is why this notice is invalid. Right?

[MrShed]

option 2: the relevant time is the time of hearing. I understand that at the time of hearing we have 'statutory periodic tenancy' In this case both 21(1) is applicable AND s21(4) is applicable as well. Therefore, possesion order shall not be granted pursuant to section 21(4), but shall be granted pusuant to section 21(1). Therefore s21 notice is valid and the possesion order shall be granted.

 

No only 21(4) - how could 21(1) be valid?

 

Now this alone confuses me, as it would make 21(1) superfluous. Clearly, there have been enough possessions under 21(1) to mean it CANNOT be superfluous. Therefore is the relevant time that of expiry of notice....?

[MrShed]

With reference to my previus post, however. The notice has statement on top Housing Act 1988 Section 21(1)(b). Therefore it refers to 2 month notice clause only. Even if we accept that it is refering to s21(1) than it is invalid because it is expires before the end of the term.

 

I think this is it. And this is why this notice is invalid. Right?

 

But again, you come to the issue of 21(1) not specifying the time at which the conditions are to be applied.

[Planner]

How about printing off this http://www.communities.gov.uk/documents/housing/pdf/138289.pdf and point 6.2 out to the Dinner Lady (TRO) next timne you visit.

 

Are you 100% sure that the s.21 notice says ON rather than AFTER x date? - all this discussion maybe pointless if it says AFTER.

[Readalot]

Which local authority are we talking about by the way?

removed Edited August 25, 2010 by Readalot

[Readalot]

Are you 100% sure that the s.21 notice says ON rather than AFTER x date? - all this discussion maybe pointless if it says AFTER.

 

The notice said:

Expiry Date: "From 11/08/2010"

where the term is "from 12/08/2010 to 11/08/2010 inclusive"

quoted exactly as on the notice

[Readalot]

How about printing off this http://www.communities.gov.uk/docume...pdf/138289.pdf and point 6.2 out to the Dinner Lady (TRO) next time you visit.

nice one, particularly considering that the 'lunch lady' has actually given this leaflet to T.

[Readalot]

No only 21(4) - how could 21(1) be valid?

 

Now this alone confuses me, as it would make 21(1) superfluous. Clearly, there have been enough possessions under 21(1) to mean it CANNOT be superfluous. Therefore is the relevant time that of expiry of notice....?

 

The notice has a section 21(1)(b) reference, therefore we shall not consider 21(4) because if we need to consider section 21(4) that the notice is invalid due to incorrect reference. ???

 

However, 21(4) is 'without prejudice' to rights under 21(1) and therefore it is possible that both may be applicable.

 

also assuming 'at the time of the hearing':

 

(1) Without prejudice to any right of the landlord under an assured shorthold tenancy to recover possession of the dwelling-house let on the tenancy in accordance with Chapter I above, on or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy, a court shall make an order for possession of the dwelling-house if it is satisfied—

 

(a) that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than a statutory periodic tenancy; and

(b) the landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than two months' notice stating that he requires possession of the dwelling-house.

...

(4) Without prejudice to any such right as is referred to in subsection (1) above, a court shall make an order for possession ...

 

at the time of the hearing AST has come to the end ----> check

at the time of the hearing SPT is in force ----> check

at the time of the hearing no other AST or AT is in force ----> check

therefore conditions of 21(1)(a) are satified.

 

not less that two month notice has been given ---> check

therefore conditions of 21(1)(b) are satified.

 

therefore possession order shall be granted.

 

There must be some other statutory instruments relevant to s21 notices. Going only by s21 HA1988 a notice expiring on any date within fixed term with more than two month notice period is valid and a possesion order shall be granted at any time after the end of fixed period i.e. as soon as AST becomes SPT.

 

There must be something that I am missing, i.e. at the time of switch from AST to SPT all notices get invalidated or something like that...

[MrShed]

The notice has a section 21(1)(b) reference, therefore we shall not consider 21(4) because if we need to consider section 21(4) that the notice is invalid due to incorrect reference. ???

 

Bear in mind that theres no requirement to have a prescribed format to a S21 notice, so I doubt that what you state is the case.