Giallo grale

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Sunday 9th October 2016

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Total Number of Property118 Comments: 2

Giallo grale

14:47 PM, 21st October 2016, About 5 years ago

Does a Section 8 notice to quit end a tenancy?

Reply to the comment left by "Giallo grale" at "21/10/2016 - 14:33":

Just to reiterate - the tenants left before the Section 8 notice expired, i.e. within the two-weeks after service. However that doesn't affect the date on which the AST ended, just the likely amount awarded for mesne damages after the end of the tenancy. If the tenants had remained until possession was granted, then the damages would cover rent for the entire period. As they left much sooner, damages will be lower.... Read More

Giallo grale

14:33 PM, 21st October 2016, About 5 years ago

Does a Section 8 notice to quit end a tenancy?

Thanks for all your comments.

In case it's caused confusion, the AST was for a two-year term, payable weekly; there has been a long gap between the service of the Section 8 notice (Ground 8 - rent arrears) and obtaining a court order for possession based on that notice. The court issued the order; we have possession, however the former tenants are contesting their liability for rent from the date of expiry of the Section 8 notice to the date on which the court granted possession.

My first lawyer took the view, as many have said, that issuing the Section 8 notice would not end the AST, but that a possession order from the court would be required. He has recently changed his mind.

My recently-appointed second lawyer - from a large Legal 500 practice with a single team specialising in commercial and residential property covering multiple offices in the region - advised from the outset that the tenancy agreement ended on expiry of the Section 8 notice (14 days in this case), irrespective of possession which could be obtained by a court order.

This matters because when the tenancy agreement ends, the terms of the agreement no longer apply. The tenant is no longer liable for the rent as a debt, and any other expenses which would normally accrue to the tenant such as council tax or utilities become the landlord's responsibility. The last rent payment due under the AST is that for the last rent date before the AST ended, 14 days after service of the notice.

If the tenant doesn't handover or leaves their effects in the property, then the landlord can claim mesne damages. That is the cost of the tenant's trespass after the AST ended. But unlike rent, which is a debt, damages are subject to the requirement to minimise them. In practice this would mean that action to recover possession should start promptly, and the courts might allow a maximum of a couple of months to recover possession after the tenant's departure.

When proceedings for possession start promptly, this doesn't make any difference. In my case, the tenant offered to repay the debt over a period and hand over possession by agreement to avoid court action. I took the view that he was good for the increasing debt; when he didn't perform my first lawyer was slow in acting, and the upshot is that I have a weak claim against my former tenant for damages rather than rent, for a lengthy period.

My former tenant's lawyer also agrees with this interpretation of the Section 8 notice, as his defence makes clear. We'll claim the amount of the rent for the full period because the tenant left a large amount of effects and didn't handover the keys, but my lawyer's advice is that it will be assessed as mesne damages and the court is unlikely to award more than the two months which would have been required to gain possession.

To paraphrase my current lawyer's reply when I queried the effect of the Section 8 notice, and why it hadn't been raised before... not many people know this but...

I hope this helps others avoid this pitfall which is rarely mentioned in connection with Section 8.

Of course if anyone can show that the AST agreement continued after expiry of the Section 8 notice, I'd be delighted to hear why.... Read More