Have I got the dates right on non paying tenant?

by Readers Question

8:40 AM, 23rd January 2018
About 9 months ago

Have I got the dates right on non paying tenant?

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Have I got the dates right on non paying tenant?

I am wondering if anyone could offer some advice re section 21 (4) notice recently served on non paying tenant, because I am not sure if the expiry date is correct gulp!

The tenant has been in since 2013 so it’s a statutory periodic arrangement now and no deposit was taken.

I have given more than 2 months notice, but expiry date was not the last date before a rent payment was due although there’s a clause in relation to this which implies that if the expiry date did not comply then the date of expiry would revert to the next relevant date whereby the tenancy period would end and next payment would be due. I’m actually 2 days too early, but the notice period is over 2 months regardless of this.

From what I can gather it’s very similar to Spencer v Taylor – so the bottom line is would this stand up in front of the judge or is there every possibility it would be thrown out ?

Help needed if anyone has experienced similar please.

Tia



Comments

Neil Patterson

8:52 AM, 23rd January 2018
About 9 months ago

Hi Tia,

You should check out Tessa Shepperson's series of articles that include three on section 21.

Please see first >> https://www.property118.com/looking-section-21/ Also quoted below

https://www.property118.com/section-21-time-limits-forms-retaliatory-eviction/

https://www.property118.com/section-21-new-pre-conditions/

"The two types of section 21 notice
The first type of notice

This is set out in section 21(1) of the Housing Act 1988.

This is the ‘easy’ section 21 notice where you just have to give not less than two months’ notice to your tenant and ensure that the notice period does not expire before the tenancy fixed term does.

For a long time, we thought that this type of notice could only be served DURING the fixed term of a tenancy.

Meaning that if you had a periodic tenancy – you had to use the other notice, the one set out in section 21(4).
The second type of notice

This notice (the section 21(4) notice) is more difficult to draft correctly due to the requirement that you must specify in the notice a date which is “the last day of a period of the tenancy and not earlier than two months after the date the notice was given”.

Which means that, in most cases, the notice period will need to be more (sometimes quite a bit more) than two months – and it is essential that the expiry date is correct.

Many, many landlords have had their claims for possession chucked out because they served their notice during a periodic tenancy and put the wrong date in the notice.
Good news – Spencer v. Taylor

The good news now is that in a case called Spencer v. Taylor, the Court of Appeal have held that for the past 25 years we had all been interpreting section 21 the wrong way!

It does NOT, apparently, say that you can ONLY serve a s21(1) notice during the fixed term. In most cases (said the Court of Appeal Judges) you can ALSO serve it during a periodic tenancy!

So now you can (usually) serve the easier section 21(1) notice and not worry about the ‘last day of a period of the tenancy’ date. There are now only two circumstances where you still need to do this:

Where there has never been a fixed term. However, this is rare – almost all tenancies in the private rented sector will have a fixed term at least to start with
Where the tenancy agreement provides for a contractual periodic tenancy to follow the fixed term. Note that this is not 100% certain (as there is no case law on the point) but for technical reasons it is probable.

So, if you have a tenancy which provides for a contractual periodic tenancy to follow the fixed term, you still need to worry about s21(4) if you serve your s21 notice during the periodic tenancy.

UNLESS the Deregulation Act rules applies.
More good news – the Deregulation Act 2015 amendment (England only)

This says that if your tenancy started or was renewed on or after 1 October 2015 – section 21(4) is amended to remove the need to give the last day of a period of the tenancy.

So, at the moment you only need to worry about s21(4) for pre-October 2015 tenancies and for Welsh tenancies.

However, it gets better – after 1 October 2018, the new rules will apply to ALL ASTs. So, after that you will never need to worry about s21(4) and the ‘last day of a period of a tenancy’ again. Hooray!

Note though that the this only applies in England – as Wales is developing its own set of different rules for housing matters (mostly not yet in force).
In conclusion

I have gone into this in a bit of detail as I know it is something that has always bothered people. But to sum up:

For most ASTs – just give a straight two months’ notice (provided it does not end before your fixed term does)
For all tenancies which started or renewed on or after 1 October 2015 – the same applies – provided they are in England.
You only need to worry about s21(4) notice periods if either there has never been a fixed term, or your periodic tenancy is a contractual one.

But even for those – s21(4) won’t be a problem after 1 October 2018 as the ‘last day of a period of the tenancy’ wording will be abolished for all ASTs (in England)."

Chris Daniel

0:07 AM, 30th January 2018
About 9 months ago

The NLA do away with all that, as the Sec 21 Notices don't stipulate any sub-section - never had a problem !
Anyway, The De-Reg Act confirmed that a Tenant outside the fixed term has to have just 2 clear months Notice and the end date of the Sec 21 can be any date - not having to coincide with the end of a Rental period.

Helen Houston

11:14 AM, 30th January 2018
About 9 months ago

Reply to the comment left by Chris Daniel at 30/01/2018 - 00:07
Is that relevant to both section 21(1) and section 21(4) ? - have served the latter with more than 2 months notice but not expiring on a rent period -expiry date is midway between weekly rent periods 🤔

Chris Daniel

11:20 AM, 30th January 2018
About 9 months ago

Reply to the comment left by Helen Houston at 30/01/2018 - 11:14
Yes


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