Is the section 21 notice now a risk?

Reply to the comment left by "andrew townshend" at "19/08/2013 - 20:22":

We do the same - but we like to avoid having rent paid on a day that isn't the first day of a tenancy period, so we grant an initial AST of six months plus a few days, as in Mary's example. That way you still get all your rent at the beginning of the period it covers, and you don't have to worry about a part-month causing complications at the end of the term.

Example of a tenancy of ours: Tenant moves on on 20th April but gets paid on the 25th of the month so he wants to pay the rent on the 26th after the first month. We therefore set up a tenancy running from 20th April to 25th October, with the rent due for 20th April to 25th May inclusive (the first month + an extra 6 days) on move-in, and subsequent rent payments due on the 26th of each month, so each tenancy period runs from the 26th to the 25th.

So if we wanted to serve notice on the tenant to depart at the end of the fixed term then - if my understanding is correct - we'd have to make sure they got it BEFORE 26th August, and the notice would expire at the end of 25th October - so they might still be moving out at 11pm on the 25th but (in theory) we could go to court if they were still there a minute after midnight.

If, with the same tenants' tenancy set up as in Andrew's example, the tenancy period was 20th-19th but with rent not paid until the 26th of each month, the fixed term would end on 19th October and you'd have to serve notice by 19th August at the latest. The rent day would be completely irrelevant.

Reply to the comment left by "Lynne " at "19/08/2013 - 22:37":

Hi Lynne

I totally concur with your logic on that basis 🙂
.

Reply to the comment left by "Lynne Davis" at "19/08/2013 - 22:37":

yes lynne, i think that is a better way, thank you for the tip.

we have this a lot. tenants often want to pay the rent soon after they get paid which is a good idea. so the rent date is different to the tenancy anniversary date.

Reply to the comment left by "Mark Alexander" at "19/08/2013 - 11:15":

i have been advocating (to the mrs) visits to prospective tenants current homes too, especially if we have doubts. however, only had the bottle to do it once as seems a bit cheeky.

Get over it Joe, far better to feel slightly uncomfortable that end up with a wrecked property! I use it as an opportunity to build rapport too 🙂

Reply to the comment left by "Lynne Davis" at "19/08/2013 - 22:37":

When serving a SECTION 21 within the fixed term the date that you request Possession is irrelevant so long as you give the tenants a minimum of 2 full months Notice and it is on the expiry of the fixed term or after.

It becomes VERY relevant when serving a SECTION 21 after the fixed term during the SPT period this is when the date must be on the expiry of the last day of the TENANCY PERIOD this is not the same as the RENT PAYMENT PERIOD. The tenancy period is taken from the date that the tenancy began not the date that the rent is due and this is why having two different dates causes so many invalid S21s to be thrown out of court.

Landlords need to be very careful that they are not taking rent that covers a period beyond the tenancy period. In your example the tenant would be paying rent for a different period to the tenancy period which would always start from the move in date not the rent due date.

The "saving clause" is usually, but not always accepted by Judges because it shows that the landlord had no intention of asking the tenant to leave before he could legally do so. BUT it is far better to get the date right. I always use the NLA on line S21 because it auto fills and the date cannot be wrong, it also has the savings clause just in case.

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Reply to the comment left by "Mary Latham" at "19/08/2013 - 12:45":

I do not understand Mary's comment about tenancy periods and rent periods. S.5(3)(d)
of the Act says that a tenancy period is the same as the contractual rent period. In which case the s.21 should expire on the last day of a month. Our own tenancy
agreements conform to this exactly and judges have agreed with me.

Reply to the comment left by "Tony McVey" at "20/08/2013 - 12:31":

This is not saying that the tenancy period is the same as the rent payment period. It is saying that the Statutory Periodic Tenancy arises when this condition and the others listed, remain the same as the fixed term tenancy.

If your AST has a start date and rent due date that is the same there is no problem, it where there are two different dates that problems arise and S21 Notices are thrown out of court because the wrong date has been used.

"Legal documents like tenancies use calendar months (month lengths vary between 28
and 31 days): so if the first day of a tenancy [date on the agreement] is the 1st of May (not
necessarily the same day as the rent day – rent may be due on a different day if the
agreement says so) the last day of a six-month fixed-term would be the 31st of October.
With a twelve-month fixed-term the last day of the tenancy is the 30th of April. So, the
last day of a tenancy term is always the day in the month BEFORE the tenancy
agreement date."

Source http://www.landlordzone.co.uk/pdf/servingS21.pdf

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Surely S. 5(3)(d) is saying that when a periodic tenancy arises its periods are
the same as the rent periods under the original written agreement. If my TA's
expressly state that following an initial pro-rata rent payment, subsequent
rent is due 1st monthly, then the tenancy periods of the subsequent periodic
agreement are identical to this and any S21 must expire on the last day of a given
month.