Clarification on use and durability of Section 21

[Webranger]

Painsmith Soilicitors have just posted a new blog entry at http://blog.painsmith.co.uk/2010/08/23/after-a-section-21-notice-expires which clarifies matters very nicely. I have found considerable confusion amongst landlords and commentators on some aspects of the uses of these notices.

 

It reads:

 

"We are often asked the question of what the situation is once a notice pursuant to section 21 of the Housing Act 1988 expires.

 

Thanks to the decision of the House of Lords in Knowsley Housing Trust v White it is known that a tenancy agreement for an assured or assured shorthold tenancy does not in fact come to an end until the Court Bailiff has executed an order for possession. Therefore the service of a section 21 notice does not in itself bring a tenancy to an end. This means that the measures of only referring to rent as mesne profits after the service of section 21 notice are not necessarily required (although they may be a good idea so as not to confuse busy District Judges!).

 

If a tenant wishes to stay after the expiry of a section 21 notice for a short period this can easily be dealt with by simply sending a letter advising the tenant that the landlord will not be enforcing the expired possession order until a specific date. Subscribers to the PainSmith helpline service will be able to obtain a suitable letter from the document vault on their website.

 

Section 21 notices have no finite lifetime in which they can be used, they oldest reported case involves a section 21 notice which expired 6 years before the possession action began. Therefore agents should not be overly focused on the section 21 notice and tenants staying on after it has expired and more on making sure they have not offered a new tenancy which might override the notice."

 

It seems to me that LL's now have a clear procedural route to follow:

protect the deposit

serve the deposit info sheet along with a Section 21 notice specifying the final day of the tenanc

allow the tenancy to become a statutory one

if you ever need to give notice, merely send a letter to the tenant quoting the Notice and saying that you want them gone in 30 days (or later if you wish and specify).

[MrShed]

"If a tenant wishes to stay after the expiry of a section 21 notice for a short period this can easily be dealt with by simply sending a letter advising the tenant that the landlord will not be enforcing the expired possession order until a specific date. Subscribers to the PainSmith helpline service will be able to obtain a suitable letter from the document vault on their website."

 

Painsmith are very highly regarded by myself, but I have to say I think they've got this one wrong.

 

In my personal opinion, the actions mentioned above would invalidate the notice.

[Planner]

I have found considerable confusion amongst landlords and commentators on some aspects of the uses of these notices.

 

What we have always said, looking back at your previous posts, its always been quite obvious on whos side the 'considerable confusion' lies in my opinion. I wont cut and paste your various responses here though. I trust you will be more willing to take on board what is actually said to you in future, like the majority of other posters on here?

 

I would agree with Mrshed on sending a letter allowing them to stay a little longer.

[Snorkerz]

protect the deposit

serve the deposit info sheet along with a Section 21 notice specifying the final day of the tenanc

 

The section 21 can not be validly served until AFTER all the deposit compliance issues have been completed. This proposed plan of action could give rise to a section 21 defence that the 'prescribed information' had not been given until after the s21 had been served.

 

I can not see the moral justification for serving a s21 at the start of a tenancy - I know it is legal, but moral? The law is designed to give tenants 2 months notice - an advance s21 bypasses that obligation, allowing a landlord to commence possession proceedings without any 'additional' notice to the tenant. Advancce s21s are often given/served with the explanation that it is just a formality - thus the tenant doesn't realise its significance. Who in their right mind would expect to get an eviction notice 2 days into a 12 month contract?

 

I also agree with MrShed, a letter advising that the tenant may stay after a s21 creates a new tenancy - s21 would be invalidated.

[MrShed]

I can not see the moral justification for serving a s21 at the start of a tenancy - I know it is legal, but moral? The law is designed to give tenants 2 months notice - an advance s21 bypasses that obligation, allowing a landlord to commence possession proceedings without any 'additional' notice to the tenant. Advancce s21s are often given/served with the explanation that it is just a formality - thus the tenant doesn't realise its significance. Who in their right mind would expect to get an eviction notice 2 days into a 12 month contract?

 

Snorkerz, you ahve hit the nail on the head there.

 

In fact, for the same reason that a letter would invalidate the notice, I also believe that the initial S21 notice would also be invalid.

 

This was discussed at great length over at the LLZ forums, where it is referred to as the "Sword of Damocles" - for obvious reasons!

 

Basically, it was felt that such notice adhered to the letter of the law, but not the spirit of the law - it was felt that a S21 notice would only be a valid if it is UNCONDITIONAL, and always intended to be acted upon at the relevant point in time. The initial issue of S21 at commencement of the tenancy is neither of these things.

 

Problem is, to my knowledge, there has never been an attempt to challenge a S21 on this basis, and certainly nothing at a higher court which could set a legal precedent.....when and if it does happen, I will be watching with great interest.

[MrShed]

Stupid thing to say, edited out!!!