Serving Section 21 during fixed term – right or wrong?

by Readers Question

16:11 PM, 23rd January 2020
About 2 months ago

Serving Section 21 during fixed term – right or wrong?

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Serving Section 21 during fixed term – right or wrong?

A friend has been in touch. She rents in London and signed a new 12 months fixed term AST wef from 1st September 2019. The paperwork was signed on the 16th July 2019.

Her Landlord has served her 2 months notice on the basis that they have a new buyer for the property who wants vacant possession. This came about as the TT gave access to the Landlord for an inspection visit before Christmas when it is thought they showed the new Purchaser around.

Reading through the agreement, the following clauses have been incorporated into the TAG :
14.3 Following the expiry of the Tenancy the Landlord has the right to recover possession of the Property if: (a) the Term has expired; (b) the Landlord has given two months’ notice to the Tenant of the Landlord’s intention to recover possession of the Property; and (c) at least six months have passed since the date of this agreement.

14.3 (c) is not worded as a break clause. Is this considered a fair term? I feel not but it may be perceived that because the agreement has been signed by all parties that it is considered acceptable.

Any thoughts or advice please?

Nikki



Comments

Neil Patterson

16:17 PM, 23rd January 2020
About 2 months ago

Hi Nikki,

A break clause needs to comply with consumer protection law and be fair.

It would normally need to stipulate after the first 6 months and allow both the landlord and tenant to instigate the notice or it might be deemed an unfair contract.

Julie Ford

16:49 PM, 23rd January 2020
About 2 months ago

The date the AST was signed is a bit of a red herring as it’s the tenancy start date that is important.
From the classes you have posted here this looks like a very old AST which the LL is just reusing yr in yr and wouldn’t conform to current regs.
If the tenancy started 1/9/19 then if there was a BC the S21 could be served at month 4 to active at month 6, but as Neil has said the BC must be balanced and work for both parties.
I do not believe this is a valid BC and if a S21 has been served then the earliest it can be acted on is 31/8/20 which would render it over 6mo this old and therefore invalid

Steve Masters

11:14 AM, 24th January 2020
About 2 months ago

My feeling is the LL's right to sell the property is on a par with the T's right to live there. I suggest your friend points out that the BC is dubious but she respects the LL's wish to sell and they work together to find suitable alternative accommodation at the earliest opportunity which may or may not take 2 months.

Of course the LL wants a quick and easy sale and the buyer will want a fixed completion date with vacant possession but it would be better for the LL to forewarn the buyer that 2 months is not realistic. Better to disappoint and delay now than a couple of days before completion. As a seller the LL has more at stake financially than the T so the LL has incentive to work with T. Always better to resolve such issues amicably.

Nikki Palmer

11:17 AM, 24th January 2020
About 2 months ago

Reply to the comment left by Julie Ford at 23/01/2020 - 16:49
I agree Julie and have advised that the only way the Landlord can serve notice would be to serve a Section 8 but this would not be acceptable either as there are no valid Grounds.
It all seems a bit underhand and has caused no end of worry to the Tenant.

Jo Westlake

11:40 AM, 24th January 2020
About 2 months ago

Regardless of the exact legal position all parties are allowed to behave in a more cooperative fashion towards eachother. A tenancy agreement is really a framework for worse case scenario.
The landlord will be able to get vacant possession at some point, your friend will have to move at some point, the buyer will buy a property (maybe not that one).

As the landlord wants this transaction to proceed he should be offering to pay compensation and moving costs if the tenant agrees to move. The tenant is going to have to move at some point anyway, may as well be when someone is offering to compensate. If the landlord has to go the eviction route his costs aren't going to be insignificant. If he loses this buyer who knows when the next one will come along.

Does the buyer actually want vacant possession? The last property I bought had tenants I would have liked to keep. I told the tenants to tell the landlord I was keen. Unfortunately the estate agent told the seller it would fetch more money empty. It didn't. I paid exactly what I had planned to offer and the landlord had the property sat empty for 5 months while the sale trundled along.

Nikki Palmer

12:17 PM, 24th January 2020
About 2 months ago

"A tenancy agreement is really a framework for worse case scenario" - I agree, but it should also offer security to the Tenant and quiet enjoyment of the property.
I also agree that compensation should be offered but fear that if the Tenant should enter into negotiations regarding this that it will be misconstrued as an acceptance of an offer, and this would also be dependent on other similar property that may be available within the timescale.
From what I understand, the property is not on the open market and I do not know the position that the potential buyer is in. If it is an investment buyer then you would feel that they would jump at the opportunity of having good tenants in situ.

Peter G

10:59 AM, 25th January 2020
About 2 months ago

My recollection of the S21 regulations is that selling the property is one of the valid reasons for termination of the tenancy, but requires the landlord to give 2 months notice at any time. Is that right?

Seething Landlord

0:37 AM, 27th January 2020
About 2 months ago

The opening words of section 14 of this agreement are: "after the expiry of the tenancy" and as it does not expire until 31st August, that is the earliest date on which the landlord could regain possession. The subsidiary clauses are all subject to the tenancy having expired and do no more than incorporate into the agreement the standard conditions for service of a section 21 notice. Under section 21 he does not have to give a reason but he does have to give at least two months notice and then obtain a court order for possession if the tenant does not vacate voluntarily.


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