Section 21 a and b notice | Discuss

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Section 21 a and b notice
16/12/2011
6:22 pm
zipster31
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Hi folks, I have a question regarding a section 21a and b notice. What is the difference between the two? Please excuse my ignorance, and a merry christmas to you all.

16/12/2011
7:28 pm
Vale-Estates
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Hi Zep

 

Section 21(1)(b) is to be served during a fixed term AST. Even if the expiry date is after the AST end date, ie. you serve it on the last month of the AST it must be this one.

 

Section 21(1)(a) is the notice you need to serve during a periodic (after the fixed term has ended)

 

Example.

 

Your tenant has a tenancy between 1st January – 30th June…If you serve a section 21 at any time between these dates use 'B'

If you serve the notice from the 1st July onwards, use 'A'

16/12/2011
8:08 pm
mary latham
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The difference is about the point at which you service the
Section 21 notice.

S21 (1) (b)If it is served within a fixed term tenancy it
can expire on the last day of the fixed term or the sixth month whichever is
the latest or at any time after that date so long as it is a minimum two months
after the date of the notice

S21  (4)(a) If it is
served after the fixed term (when the tenancy has rolled into a statutory periodic)
you must ask for possession at the expiry of the last day of a rent period – in
other words at the end of the last day before the rent is due to be paid again.
That date must be a minimum of two months from service of notice. If you get
the wrong date, and many landlords fail to gain possession for this reason, you
will not be granted possession and must start all over again.  Again you cannot ask for possession before the
last day of the 6th month of the tenancy regardless of the period of
the fixed term.

 

Here is a link to the relevant Act http://www.legislation.gov.uk/…..section/21

The safest thing to do is to ask for possession on the expiry of the last day of the rent period whenever you serve
AND

this must be no sooner than 2 months after the date of the notice

AND

no sooner than the last day of the 6th month.

AND

must be signed by the person ( or one of the people) who has the right to possess (the legal owner) not a agent acting on his behalf

 

VERY IMPORTANT  Remember that a Section21 notice cannot be
served on a date before the date on which the tenants deposit was protected and
after April 2012 if the deposit was not protected within the first 30 days of
the tenancy you will not be able to use Section 21 at all unless you give the
deposit back to the tenant without deductions before you serve the notice.  

Once a valid section 21 notice has been served it will run
along side the tenancy until the tenancy ends or a new tenancy agreement is
written.

16/12/2011
9:32 pm
zipster31
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Thank you for both your replies, I am very grateful. The tenant's AST ends in just one month. It states on his contract that I must give 2 weeks written notice should I require him to leave, which I shall do. I fear that if I give him a section 21 notice (which I would have to do at the end of the tenancy due to there only being 1 month left), he will simply stop paying his rent. If I were to issue a section 21 2 months before his tenancy expires, he would legally be able to stay and would not pay his rent for at least 2 months. So I am just hoping he will leave when his tenancy ends in one month. If he does not, I will then have to serve notice. Also, how would I go about taking the tenant to court to retrieve his £750 arrears (plus more no doubt as he will stop paying once I give him notice). I already have a signed arrears repayment form which he has not adhered to – the agreement was for him to repay £20 per week, quite fair I thought as is only a small amount. The tenant is working full time and has done the same to a previous landlord in my area.

 

Thanks once again for your help folks : )

17/12/2011
5:38 am
PaulBarrett
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I am afraid you will be on a hiding to nothing.

Very unlikely you will be able to recover.

Indeed I would conjecture that this tenant will stop paying rent  and make you evict him would could cost you thousands of pounds and take about 8 months or more.

What you could do to incentivise him to behave by referring him to this site and advise him that if he fails to comply with any of the terms of his AST you note as such on this site and tenantid and that the negative effect this could have on his next potential rental; could be such that he would be UNABLE to source the next mug landlord.

That is what this site is ALL about protecting landlords from wrongun tenants.

17/12/2011
8:51 am
Paul Routledge
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Hi Mary Paul & Vale's

Thanks for all your suppor tfor Zep. It is what makes us that bit different to others a site where we can help one another and also unlike others complete the cycle by checking on one anothers past problem tenans whilst giving great references to the good ones

Thanks very much

Paul Smile

17/12/2011
5:43 pm
Rigsby
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mary latham said:

no sooner than the last day of the 6th month.

 

The above isnt correct. If for example you had a 3 month tenancy you could serve a s21(1)(b) with the 2 months notice ending on the last day of that 3 month tenancy and if the tenant didnt vacate you could apply for a possession order BUT the judge would not give a possession date sooner than 6 months after the tenancy started.

 

Also a few other points about S21:

1 The notice has to have certian precribed wording and if not it would be invalid

2 You could use a generic s21 that doesnt state either (1)(b) or (4)(a). I have used one of these to get a possession order. (you still have to get the dates correct)

3 If your S21(4)(a) has a (correct) saving clause it doesnt mater if you get the date incorrect by a day or so.

4  You can use a S21(4)(a) that doesnt need to put a date in but has certain wording. I use these all the time.

5 A S21 is unconditional so if you said to a tenant “I wont enforce it if you pay your rent arrears” the tenant could use that as a defence and it could be struck out by the judge.

6 A S21 does not have a shelf life and I have heard of one being used 5 years after service. A section 8 has a shelf life of 1 year.

 

I also dont think the statement by Mary Latham that a agent cannot sign on behalf of their client is correct. But I stand to be corrected on this point.

I would be interested on what point of law if it is correct. 

 

Rigsby

17/12/2011
6:00 pm
Rigsby
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Because it so easy to get the dates incorrect on a s21 it is never a good idea for the AST to state a differant day of the month that the tenant pays the rent to the day of the month the tenant moved it because it can cause confusion on what day of the month the rent period is.

So if the tenant moves in on the 5th of the month the rent is paid on the 5th of the month. But you could have a unoffical arrangement that they pay on say the 10th but dont put it in writing.

 

Another thing to be carefull about is if you take 6 months rent upfront you have to have a specially worded contract otherwise you will get yourself in a world of trouble when trying to serve a s21 and get the dates correct

17/12/2011
6:13 pm
PaulineMcdougall
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I am a bit confused by the different posts. Is there a way (other than through a solicitor) of keeping up to date with legislation. I have let a property tenants whose tenancy expires at the end of May and I have an uneasy feeling about them. What would be the easiest way to get them out in the summer if they prove to be bad tenants.

Pauline

17/12/2011
6:19 pm
Rigsby
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If the tenant had 2 months rent owing you could use a s8 with grounds 8,10 & 11. Other wise you could now give them a s21(1)(b) that expires on the last day of the tenancy and if you needed them to vacate and they didnt you would have to apply for a possession order.

18/12/2011
2:42 am
mary latham
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Only the person who has the right to possess (the owner) can legally ask for re-possession and therefore he should sign the notice or appoint a legal representative (solicitor) to do so on his behalf.

Legal Services Act 2007

 

Only a Section 8 (with grounds) can be used to terminate a tenancy in the first 6 months of the tenancy, regardless of the fact that the tenancy may only be for a term of 3 months.

http://www.communities.gov.uk/…..8289.pdf  section 6

 

“…….. if the tenant didnt vacate you could apply for a possession order BUT the judge would not give a possession date sooner than 6 months after the tenancy started.”

I am not clear why a landlord would want to serve an unenforceable notice when he could easily serve notice asking for possession on the legally acceptable date?

18/12/2011
8:09 am
Rigsby
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mary latham said:

“Only the person who has the right to possess (the owner) can legally ask for re-possession and therefore he should sign the notice or appoint a legal representative (solicitor) to do so on his behalf.

Legal Services Act 2007″

 

But but surely the owners representative if a solicitor or agent can be given the authority to sign on the owners behalf. I have been on one or two legal courses some by ARLA and their view differs. What if a owner was out of the country there must be a provision for someone to sign for them.

 

“…….. if the tenant didnt vacate you could apply for a possession order BUT the judge would not give a possession date sooner than 6 months after the tenancy started.”

“I am not clear why a landlord would want to serve an unenforceable notice when he could easily serve notice asking for possession on the legally acceptable date?”

 

Well it is enforceable and it would/Could shave at least 8 weeks off getting a possession order because you don’t have to wait until the 6 month mark before applying for a court order.

After all many landlords/agents serve a s21 at the start of a tenancy “just in case”. This way would save time and money if you needed to gain vacant possession at the soonest oppentunity.

I agree though if there is rent arrears a section 8 could be quicker but that comes with other issues such as:

1 The landlord or solicitor have to appear in court

2 It is open to a disrepair defence which a lot of tenants are getting switched onto and if legal aid get involved you could find  it takes months and months to resolve and end up with a legal aid bill as well.  

 

Rigsby

18/12/2011
11:54 am
Sharon
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This is outside of my level of expertise so I have come to this forum to see if any landlords can help me.

I have a landlord on my block who has a young family on LHA in situ. He changed the structure of the flat in order to obtain more LHA (making it a 3-bed rather than a two-bed) but the full amount of rent is not being met by LHA so the tenant got into arrears pretty quickly.

There are a number of disputes between the tenant and neighbours which I won't go into on this forum but the upshot is that the landlord wants her to leave but refuses to serve any eviction notice on her. She is digging her heels in and (rightly) saying that whilst she too wants to leave, she wants the landlord to serve notice before she even considers moving out otherwise the council will deem her intentionally homeless.

Does anyone have any idea as to how we, as freeholders can move this situation forward? The tenant has accused the landlord of harrassment and the situation is spiralling out of control.

Personally, had the subletting covenenants been adhered to on the lease we would not have granted permission to sublet to either this landlord or the tenant but as such covenants were ignored, we are stuck.

Any advice on how to deal with this from the landlord perspective would be much appreciated.

18/12/2011
12:35 pm
Rigsby
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Just to clarify I am assuming this is a block of flats and you have something to do with the runing/management of the block and all the leaseholders own the freehold as well which will normally mean they own 2 separate entity’s  a lease and a freehold.

You need to read the lease and I would guess there are a number of breaches you could work with such as:

1 Altering the inside structure/layout of the flat

2 Subletting without permission

3 Likely to breaking a few rules on noise upsetting other leaseholders etc.

 

You need a solicitor WHO DEALS WITH PROPERTY MANAGEMENT to write to the leaseholder threatening forfeiture etc and legal action.

Also have a look at http://www.lease-advice.org/

18/12/2011
1:23 pm
Sharon
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Hi Rigsby 🙂

Thanks for taking the time to respond and all good advice.

You are correct in your assumptions. I act in a support capacity to the Directors of our Resident Management company who own the freehold (its a long story but it can be found via my website Leasehold Life).

We have been considering the lease breaches but its harder going for forfeiture under circumstances such as these. Service charge arrears are (in theory) easier to run with when considering forfeiture but this particular landlord isn't in any. There is also the cost element to consider.

Whilst we are increasing the legal element of our budget for next year, and I have secured the services of a good solicitor, I was hoping that there would be something I could do in the meantime regarding this particular situation.

Thanks again.

18/12/2011
4:22 pm
Rigsby
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All you want at this stage is a well written strongly worded solicitors letter threatening forfeiture with a section 146 notice which shouldnt cost more than 20-30 quid. This may give the leaseholder the kick up the jacksee he needs. Also the lease is likely to state legal cost are recoverable if the solicitor adds that to the letter that any further legal costs will be recovered from him that puts a bit more pressure on.

18/12/2011
8:40 pm
mary latham
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“Only the person who has the right to possess (the owner) can legally ask for re-possession and therefore he should sign the notice or appoint a legal representative (solicitor) to do so on his behalf.

Legal Services Act 2007″

 

But but surely the owners representative if a solicitor or agent can be given the authority to sign on the owners behalf. I have been on one or two legal courses some by ARLA and their view differs. What if a owner was out of the country there must be a provision for someone to sign for them.

In this situation the property owner should appoint a solicitor to act on his behalf. I run full day seminars on Possession for two highly respected organisations.  When I gave a warning on this subject at a national conference earlier this year an Agent ,who operates in Hastings, told me that she had recently changed all her possession procedures because judges in her area were throwing cases out of court based on the fact that  the Section 21 or Section 8 had not been signed by the landlord or his legal representative.  This is also happening in other parts of the country and this is why I make the point. Local authorities, NCAB and Shelter also tell tenants to challenge notices that have not been signed by their landlord or his solicitor. The growing concerns about the housing shortage will see more landlords fail to regain possession if they get it wrong because tenant support agencies are gearing up to help  keep a roof over a tenants head.

 

“…….. if the tenant didnt vacate you could apply for a possession order BUT the judge would not give a possession date sooner than 6 months after the tenancy started.”

“I am not clear why a landlord would want to serve an unenforceable notice when he could easily serve notice asking for possession on the legally acceptable date?”

 

Well it is enforceable and it would/Could shave at least 8 weeks off getting a possession order because you don’t have to wait until the 6 month mark before applying for a court order.

After all many landlords/agents serve a s21 at the start of a tenancy “just in case”. This way would save time and money if you needed to gain vacant possession at the soonest oppentunity.

I agree though if there is rent arrears a section 8 could be quicker but that comes with other issues such as:

1 The landlord or solicitor have to appear in court

2 It is open to a disrepair defence which a lot of tenants are getting switched onto and if legal aid get involved you could find  it takes months and months to resolve and end up with a legal aid bill as well. 

http://www.legislation.gov.uk/…..section/99

I agree that many landlords and agents do serve S21 early in the tenancy but the notice is asking for possession at the end of the fixed term or the last day of the 6th month (whichever is the later) and that is a perfectly legal, and enforceable, notice. A notice asking for possession earlier than is legally allowed will result in time wasted if the notice is thrown out of court.

18/12/2011
8:46 pm
mary latham
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Pauline the easiest way for all landlords to keep up with legilsation and regulation and to get support from a free helpline and online forms when you need them is to join a landlords association like the National Landlords Association (NLA) http://www.landlords.org.uk  For £80 a year (tax deductable) you will get all the information and support you need.

Once you are a member you will hear about meetings that are held locally and this will give you the opportunity to meet and talk to other landords in your area – being a landlord can be a lonely business but it doesnt need to be.

18/12/2011
9:41 pm
Rigsby
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mary latham said:

“I agree that many landlords and agents do serve S21 early in the tenancy but the notice is asking for possession at the end of the fixed term or the last day of the 6th month (whichever is the later) and that is a perfectly legal, and enforceable, notice. A notice asking for possession earlier than is legally allowed will result in time wasted if the notice is thrown out of court.”

 

But Mary if you read that link you posted it states:

 the order may not be made so as to take effect earlier than—

(a)in the case of a tenancy which is not a replacement tenancy, six months after the beginning of the tenancy

It doesnt say anything about the s21 notice other than 2 months is given which doesnt end before the last day of the fixed term.

 

Also I have just got this from the Guild of Residential Landlord's Website:

In addition, it is sometimes thought that a notice

served during the fixed term cannot expire earlier

than six months, even if the tenancy was for a

shorter period e.g. three months. This is not the

case, the requirement of s21(1)(b) is that it does not

end before the fixed term ends, there is no

restriction on this being less than six months.

 

The first basis on which possession was refused

is was that the section 21 notice given in this case

had been set to expire, as the Deputy District Judge

put it, before 6 months of the tenancy had expired.

Here in my judgment the Deputy District Judge fell

into what, regrettably, might be described as an

elementary error. He confused the provisions of

section 21(1) which deals with the amount of notice

to which the tenant is entitled with the provisions of

section 21(5) which bars the court from making an

order to take effect earlier than 6 months after the

beginning of the original tenancy. Section 21(5) has

no bearing whatever on the way in which a notice

under section 21(1) must be given. These provisions


deal with entirely separate matters

Provided that notice is given in accordance with

section 21(1)(b) the court is bound to make an

order for possession if all other necessary

conditions are satisfied. Section 21(5) merely

details the court from making an order to take

possession before a specified date.” 

[Ratcliffe v

Parkes

[2006] Leeds Crown Court].

I would have thought Mary that if you “run full day seminars on Possession for two highly respected organisations. ” you would have known about the above or am I missing something.

19/12/2011
10:58 pm
zipster31
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Thank you all for you kind advise, I appreciate it. I fail to understand why a tenant is legally allowed to stay for so long in a property without paying rent. As far as I am concerned, it is theft. But there you go, that's just my opinion. I think I will just have to find a good solicitor if he refuses to leave. Thank you all.

Zep

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