Confusion over when to serve S21 or S8 Notice?

by Readers Question

14:08 PM, 4th September 2018
About a month ago

Confusion over when to serve S21 or S8 Notice?

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Confusion over when to serve S21 or S8 Notice?

My understanding is that When a tenancy has come to an end of its AST period, of say 6 months, it automatically rolls into a statutory periodic tenancy. Which means a landlord can serve S21 (4) No fault Notice of 2 clear months provided the tenancy started before October 2015. But if it started after October 2015, then it is not necessary to give 2 clear months but just 2 months Notice from any date after the S21 is served.

However my confusion is that if a landlord wants to serve a S8 Notice instead, during a periodic tenancy, then he or she may not be able to use that, and must use S21 (4) Notice. How true is this?

The reason my confusion arose is because I downloaded S8 Notice forms to serve to one of my tenant who seem to have absconded, now 3 months no sign of him and his partner, last time I met them they told me they were going to Romania for a few weeks, and will be back and settle any rent issues when they come back, but those few weeks is now over 3 months and no attempt to contact me or to update me when they will be back, and now owe me more than 3 months rent for a room in an HMO.

I tried to serve them the Notice in their absence, having first tried to send them TEXT messages of my intention, some of these messages failed to deliver but some got through and so as far as I am concerned they are deemed as sent and read, however they had not responded what so ever, apart from when they went, a week into their trip, they rang me requesting me to top up their Lycamobile account for £10.00, which I did.

I have now sent them a final TEXT message informing them that I have served them a Section 8 Notice left under their room door, deemed as served, as they have fallen behind rent by more than 2 months. I have made it clear to them in my text message that I am going to file a court application for seeking possession of my room under the abandonment of their room, which would permit me to clear the room of their belongings and store it away for a while before disposing them off as I must rent that room to some other tenants, I need regular income too.

However, the S8 form says ” Do not use this form if possession is sought on the grounds under S21 of the Housing act 1988 from an Assured Shorthold tenant where the fixed term has come to an end……..this form suggests that I use S21, which is no good as I would need to wait two more months before filing a court application.

So do serve S21 and suffer another 2 months of rent loss instead of suffering 2 weeks under S8, plus the time it takes for a court hearing that might add a further 4 to 6 weeks!

Or is there a different route to what seems to be an abandonment.
Will appreciate your views or your experiences, yes I need some ideas before I waste my money on solicitors, that is what the purpose of these forms is to seek information freely and then engage lawyers if need be.

Many thanks

Mike



Comments

Rob Crawford

20:55 PM, 4th September 2018
About a month ago

Hi Mike, have you entered the property since they left? Have any belongings been left? Have the keys been left?

Rob Crawford

10:28 AM, 5th September 2018
About a month ago

Also, not sure why you want to serve a section 8. If you have already served a section 21 (no fault?) then you now need to go through the court possession process. Pointless seeking rent arrears as your unlikely to see them again. If you have served a valid notice (iaw the AST) then it's served! You don't need an acknowledgment.

Michael Barnes

11:34 AM, 5th September 2018
About a month ago

Your understanding is wrong.

1. an AST arises only if there is no provision in the contract for the tenancy to continue on a periodic basis.
2. There is no such thing as a S21(4) notice.
You serve notice under S21. Do not quote what sub-section you are relying on, as that may limit your arguments in court.
3. "2 clear months" and "just 2 months" is the same thing.
4. For a tenancy that started at any time, once it has gone periodic LL can give 2 months' notice ending on any day (court decision).
5. S8 can be served at any time. The S8 form wording means "this is the wrong form if you intend relying on S21", not "you cannot use S8".

Chris Daniel

12:28 PM, 5th September 2018
About a month ago

Mike,
Your questions although basic requirement knowledge for landlords, are really too complex for a forum post.
As a minimum, I'd suggest a one day Landlord Foundation course. ( claiming cost against your tax, naturally )

Mike

23:52 PM, 5th September 2018
About a month ago

Thank you everyone for your replies, thanks Chris for the suggestion, I will look into this course, much appreciated, some of the things got clarified, the wordings on the form I downloaded after paying ten pounds for the service were misleading tbh.
I had given my tenant a 6 months AST, which began on 12th March 2017, so it ran out on 11th September last year, so basically they have not renewed it further so it has rolled into statutory periodic tenancy, I had not served them S21 notice but now they had been away for over 3 months ( having left UK on 2nd June 2018) and have not come back, nor tried to keep me updated if they intend to come back or not, though a week after they left, the tenant phoned me from Romania asking me to top up his mobile phone account for £10.00 which i did, so that proves he had my contact number, if he wanted to keep me informed of any changes to his trip plan, he would have done so by now, when he went he said he was going for 4 to 5 weeks, and will sort out my rent when he came back.
But this does not look like he is coming back anytime soon, he may well have abandoned the room leaving a few belongings, indeed as an HMO, I believe I am entitled to enter his room in his absence for maintenance purposes, and to ensure he left all appliances switched off, which he did not as he left a phone charger plugged in, I also found he had a 5 liter industrial can of solvent cleaner, in this summer's heat this could have caused problems or even a fire risk voiding my building insurance, needless to say I took it away and stored it in the garden shed.
He works on building site, has been bringing many tools home, storing it in his room and in some other places against HMO rules where all communal areas should be free of any objects, I had asked him that if he brought anything that cannot go in his room then he should not start bring half the building site to my house, my guess is these power tools are nicked from where he works including that 5liter can of highly inflammable industrial solvent cleaner.
He had given me verbal permission to enter his room for any emergency or maintenance purpose.
I cannot lose any more rent and wait any longer, therefore I tried calling his mobile phone but it seems to be dead, no ringing, I had sent him several text messages and some went through and some did not, he is now gone beyond a reasonable length of time without arranging any rent payments, I therefore texted him a final message that clearly stated that I was going to serve him a S8 Notice for possession of his room and will seek court order to evict him in his absence. This 2 week notice will expire on 13th September 2018 and I shall be filing an application with a court seeking possession his room, giving him opportunity to pay the outstanding rent contact me, but he failed so far.
I am therefore going to have to file a court application for a possession on S8 grounds. starting on or after 14th of September onwards.

Chris Daniel

0:04 AM, 6th September 2018
About a month ago

Reply to the comment left by Mike at 05/09/2018 - 23:52
Abandonment is a Very imprecise subject and tricky for landlords due to potential legal consequences for landlords if its mis-judged. That's why i say its necessary to get educated to a far higher level than'running a few comments by an online forum' if your knowledge level is at a certain level to start with.
Most professional advice on Abandonment is to 'play it safe' and follow the Section 8 rent arrears you refer to.

Mike

0:22 AM, 6th September 2018
About a month ago

Chris I totally agree with you, abandonment is a tricky one, a straight forward S8 filing on rent arrears should do the trick.
I think I will just not assume they have abandoned. if they do come back before the court hearing date, and if they attend, then the court must issue a possession order if they still owe me more than 2 months rent unless they paid all outstanding rent before the court hearing date. my concern is with rent, so if they want to continue to stay there they can, long as they take more responsibility to pay rent on time in future, if not i can always serve them S21 in future. Chris please do tell me about this course how i can get to one and cost please.

Mike

0:34 AM, 6th September 2018
About a month ago

Of course Chris, they could come back before the hearing date and claim they did not receive adequate notice!

I was also wondering if I am not dialling correctly, as far as I am concerned I know of another Romanian ex tenants who regularly calls and speaks to me and I call and speak to him using the same number format as stored in my mobile phone whether he is in UK or in Romania, the network automatically sorts out the country codes. I do not have to add the country code before the main number when calling him in Romania.
But I am just wondering whether this could be the reason and may be I shall try to call the current tenant again tomorrow by adding the country code first.

Chris Daniel

8:30 AM, 6th September 2018
About a month ago

Reply to the comment left by Mike at 06/09/2018 - 00:34
You can find Landlord Foundation courses run by the National Landlords Association all over the country on their web site.
I'd suggest you join to get access to telephone advice, all the forms required and discount on courses, etc.


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