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section 21 notice


laverda

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HI DOES ANYONE KNOW HOW LONG A SECTION 21 NOTICE IS VALID FOR.

I SERVED A SECTION 21 NOTICE ON A TENANT ABOUT 12 MONTHS AGO GIVING THE REQUIRED TWO MONTHS NOTICE AS I WAS HAVING PROBLEMS AND RENT AREARS WITH TENANT THINGS THEN IMPROVED SO I DECIDED NOT TO ENFORCE THE SECTION 21 AT THIS TIME . RECENTLY THE PROBLEMS HAVE RETURNED RENT AREARS ANTI SOCIAL BEHAVIOR ETC I HAVE WRITEN CONFIRMATION THAT THE TENANT DID RECIEVE THE SECTION 21 AT THE TIME APPROX 12 MONTHS AGO.

QUESTION IS . IS THIS SECTION 21 NOTICE STILL VALID OR DO I NEED TO ISUE A NEW ONE GIVING A FURTHER 2 MONTHS NOTICE

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HI DOES ANYONE KNOW HOW LONG A SECTION 21 NOTICE IS VALID FOR.

I SERVED A SECTION 21 NOTICE ON A TENANT ABOUT 12 MONTHS AGO GIVING THE REQUIRED TWO MONTHS NOTICE AS I WAS HAVING PROBLEMS AND RENT AREARS WITH TENANT THINGS THEN IMPROVED SO I DECIDED NOT TO ENFORCE THE SECTION 21 AT THIS TIME . RECENTLY THE PROBLEMS HAVE RETURNED RENT AREARS ANTI SOCIAL BEHAVIOR ETC I HAVE WRITEN CONFIRMATION THAT THE TENANT DID RECIEVE THE SECTION 21 AT THE TIME APPROX 12 MONTHS AGO.

QUESTION IS . IS THIS SECTION 21 NOTICE STILL VALID OR DO I NEED TO ISUE A NEW ONE GIVING A FURTHER 2 MONTHS NOTICE

Hi

Your section 21 notice is still valid so long as you have not reissued a AST or increased the rent. As far as I am aware the notice is valid up to 2 years.

Oliver

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Contrary to the last post, your original S21 is not valid as you have taken rent after the expiry date and construed as accepting a continued tenancy. Re-issue it and advise that any rent taken after expiry is a mesne-profit then enforce the notice.

still bit unsure which is corect on these replys plus if you accept payments after section 21 has expired does this mean future rent payments only and not any areas owing or any paymnt whatsoever

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Payment of arrears for the period before the notice expired shouldn't be a problem but you know those judges... Receipt of rent for periods after the notice has expired is a different matter and should instead be taken as a charge for occupancy until possesion is obtained. A judge is likely to take a dim view if you serve notice, which expired, and then stroll up to the property 12 months later telling the tenant it's now time to shift. You've issued the notice for a reason - to get your property back otherwise why issue it. Either go through with it or accept you are letting it lapse. If the original notice expired months before it's much better to re-serve it and avoid complications.

Another variation on this is that, theoretically, your tenant could leave without giving you any notice if your S21 notice has been served earlier and run its course. The notice tells the tenant you want your property returned therefore why should they then need to give you notice that they will be leaving. Decide not to take back your property after serving notice and 18 months later you might have the problem of a tenant leaving at no-notice and you having no right to anything. Take it to court and I'd put money on a judge telling you you can't have it both ways ie telling your tenant you want your property returned and then expecting the tenant to give notice.

RE-ISSUE THE 21.

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I'm of the opinion that that you could still use the the S21 and if it went to court a lot would depend on if it was defended (unlikely) and what mood the judge it in.

If it goes to court and is undefended the question of any rent taken shouldnt come into it the notice is mandortory if served correctly.

The judge might not like it and take a dim view but they also take a dim view of L/L's serving S21's at start of tenancys as well but they still accept them.

I'm not disagreeing with GPEL I think legally he is right because you have accepted more rent and some could argue you have entered into another agreement.

But two of the S21 court hearing I've done I have taken rent after S21 served and one was defended both still sailed through, and on one the judge was a bas----d

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In some circumstances you serv a section 21 and the tenant does not move out at the end of it so you get the court baliffs in to evict them.This is the corect way of dealing with this but what if you take rent whilst they are still in residence ie between the section 21 expiry date and the baliffs eviction date does this invalidate the section 21. Most landlords would do this as once they have been removed by baliffs you have little or no chance of getting rent, just wondered on this situation as it could be a loophole so as tenants can stay put if this would invalidate the section 21 notice

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If you take rent between expiry and eviction there is a school of thought that your case is not watertight, which is why I suggest that putting it in writing that taking rent after expiry is a mesne profit and should not be viewed as creating continued acceptance of occupancy. Point is with all this is safeguarding yourself to avoid the tactics of dodgy tenants and whims of bored judges. Serve the 21 when you know you'll need it and clarify your intentions in writing.

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Hi

My original advice is correct…

I know this as I am trekking back and forth to court all the time.

I am not a solicitor however GPEL is partially right.

At the end of the AST fixed term if the contract is not renewed or if the rent is not increased then the tenant becomes automatically a periodic tenancy by default. This occurs on the first rent payment after the fixed term.

However if the S21 notice for the end of fixed term is served in the correct form and manner such as minimum of 2 months + service days then a periodic notice does not need to be given as it is assumed that the tenant has overstayed original tenancy notice. This notice is valid up to 3yrs from the commencement of the original AST which means the notice is usually valid for around 2yrs.

However if the Landlord fails to issue a S21 prior to the last day specified in the AST then the S21 notice form changes to recognise the fact the tenant is under a periodic tenancy. Once the notice is in place a landlord can accept rental payments as normal without affecting the Accelerated Possession Procedure so long as the correct notice is served on the correct date.

If you need help to issue notice or complete N5b then PM me and I will offer guidance.

Sorry for delay been busy sorting out a run on heating sys.

Oliver

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Delay taking back possession and keep taking rent after expiry of the S21 hope for an understanding judge if a court order is needed for re-possession. The notice might be valid for 3 years but if it expired 2 years and 6 months ago and you expect possession now you risk losing a court case if basing re-possession on the original order. Check case law if in doubt. Re-issue the notice and protect yourself properly, is my suggestion.

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Hi

I have had successes with all N5b requests for accelerated possession based on a range of notice dates including one over 12 months from service. Section 21 is not grounds related unlike section 8.

Taking rent from a tenant does not compromise possession proceedings on S21 route neither does delaying N5b instruction. When I discussed this with court clerk who checks validity of my documents on paying court fee he confirmed this. The main concern appeared to be providing the tenant with sufficient notice and time to cooperate with notice and enforcement is used when tenant refuses to go of own volition (as a last resort).

However it must be noted that if a section 8 is used a strict 12 month limit for court action applies.

One main advantage of the S8 route is you can instruct court proceedings via Possession Claims on Line which is now £50 cheaper at £100 for the court fee. I hope that POL eventually accepts S21 this would make management easier.

I accept the trend now is to issue S21 docs the following day after tenancy commencement to ensure proof of sufficient notice as this enables the landlord to go straight to court the day after the AST comes to an end.

However I personally prefer to only issue notice docs to a tenant on presentation of a problem. This then gives the notice period as a deadline in order to resolve the issue or allows the tenant time to locate alternative accommodation without the need for court action.

Oliver

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Hi

I would just like to add that if the S21 notice is valid then possession must be granted. Usually it can only be delayed (up to 42days)

There are exceptions such as failure to be HMO registered or failure to register deposit (TDS) both of which can result in a possession strike out thus refusing the landlords judgement request.

I should also add that N5b accelerated possession proceedings are an administrative process and as such there is no hearing partly because there is no defence only a right to delay

Oliver

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S21 is not rent related however taking rent for a period of time after expiry of the notice has previously been construed as acceptance of a continued tenancy therefore making the original S21 notice invalid, which is why the circumstances of receipt after expiry should be qualified. As referred in your last paragraph, serve when possession is needed and follow through as soon as possible after to avoid complication.

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Hi

A section 21 notice only needs to be given in the correct form at the time of service from which it then remains valid. The notice period is the key (2 months + service).

If a S21 notice was served for the end of the fixed term tenancy the only argument to contest the validity of this notice is to state that a new tenancy has been secured for a new fixed term if the tenant can prove that new terms and conditions apply (such as rent increase) in which case it could be argued that a new AST has been informally issued.

Therefore to avoid this use form 4b rent increase for periodic tenancies which removes the need to provide tenant with a further six month AST. Once this has been done however it can be argued that the original fixed term notice is invalid and therefore a new periodic notice would need to be issued.

Oliver

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...Unless a court finds the S21 to be invalid due to landlord inadvertantly or otherwise creating a new tenancy, which continued acceptance of rent without clarification of conditions it's taken on might create. Re-service not mandatory but good practice.

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The following link leads to an interesting and at times heated debate on the subject of validity:

http://www.landlordzone.co.uk/forums/archi....php/t-278.html

Each to their own interpretation of validity but, for me, going to court to then find I'd got it wrong cos my (in)action to take back possession isn't an option and where possible would make sure the S21 was a recent one.

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