Tenant changing leaving date within 2 month statutory period?

by Readers Question

15:10 PM, 4th April 2016
About 3 years ago

Tenant changing leaving date within 2 month statutory period?

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Tenant changing leaving date within 2 month statutory period?

Our letting agents gave our tenant the required 2 months notice as we want to sell the property. She found another suitable rental property and asked to move out early, after 1 month. date change

We agreed and she contracted to move out after 1 month. The property is due to be listed for sale with vacant possession on the date she gave us. There are less than 2 weeks to go, and she is now saying she might need the whole 2 months as she is sick. We don’t know if this is true.

Having given us notice to move out after 1 month, does she have any rights at all to then extend to the 2 months? Should she legally honour the date she gave us and move out on that date?

If she is sick, we are not saying we would force her to move, but would like to know if she is legally entitled to change her mind and we have to give her the extra month, or if it would be totally at out discretion and we would be doing her a big favour.

If we did this, are there pitfalls we haven’t thought about?

Thank you for your help.

Paula



Comments

Gary Nock

18:40 PM, 4th April 2016
About 3 years ago

If she has been given a Section 21 Notice with a date for vacation then the tenant is not legally obliged to move out before the date on the Section 21. If she leaves earlier then that is a matter for her.

Paula Morrow

18:47 PM, 4th April 2016
About 3 years ago

Reply to the comment left by "Gary Nock" at "04/04/2016 - 18:40":

So just to confirm - even though she requested a date to move out early, we agreed, and she stated in writing she was moving out on the 15th April, that doesn't have any legal standing? She can just decide to stay until the original date on the Section 21 notice?

Gary Nock

19:53 PM, 4th April 2016
About 3 years ago

Correct. Statute as per Section 21 overrules the tenancy agreement. Also ensure that the agent has served the correct Section 21 Form dependent upon when the tenancy commenced and that the Deposit Protection certificate and prescribed information is in order. I would just let her stay until the Section 21 expires and see what happens. If she decides to stay you will need to go to Court for an order under accelerated possession.

Paula Morrow

22:11 PM, 4th April 2016
About 3 years ago

Reply to the comment left by "Gary Nock" at "04/04/2016 - 19:53":

Thank you very much Gary - I suspected this may be the case, but one can always hope! If she is feeling just temporarily ill, then all being well she will vacate as planned on 15th May. It's just such a pain when everything was being set in motion for the earlier date, change of gas, electric, Council tax etc.
As far as I am aware the notice was served correctly and the deposit protection is in order. We really appreciate the advice, thanks again.

Mandy Thomson

8:45 AM, 5th April 2016
About 3 years ago

Gary is absolutely spot on - statutory legal rights will always override a contract.

However, I believe accelerated possession has just been found to be illegal, as Court sheriffs were trying to do away with the need for the High Court referral procedure by using a form that was supposed to be for evicting squatters, not tenants: http://www.landlordlawblog.co.uk/2016/01/12/warning-to-landlords-beware-sheriffs-using-illegal-eviction-procedures/

Ian Ringrose

14:19 PM, 5th April 2016
About 3 years ago

Forget about the S21….

The tenant has given 1 months notice of moving out, and has now changed their mind. Distress for Rent Act comes to mind, e.g. the landlord can sue the tenant for double the rent, if the tenant does not leave on the date the tenant has given notice they will live on. See http://www.landlordlawblog.co.uk/2009/12/01/ancient-law-may-help-landlords/

Also on a practical note, why can’t you get agreement for viewing before she moves out….

And point out to the tenant that she will be ordered by the courts to pay ALL your legal costs…..

Paula Morrow

21:52 PM, 5th April 2016
About 3 years ago

Thank you Mandy & Ian,
The situation is that we gave her the 2 month notice first, she then said she'd leave after a month but is now saying she possibly can't. I'm not sure if that is a different situation from her being the one to instigate moving out with her required 1 month notice then changing her mind?
We are for sure going to market the property on 15th April as planned and it's in the tenancy agreement that she has to let prospective purchasers in during the last month.
I am hoping it doesn't come to accelerated possession or any other sort of action!

Mandy Thomson

9:51 AM, 6th April 2016
About 3 years ago

Ian's suggestion of using the Distress for Rent Act, which I was unaware of - thanks Ian - is a good one. However, after reading both Tessa Shepperon's and the Painsmith blogs, a question which comes to my mind is: what exactly is a valid notice from the tenant?

Strictly speaking, it's supposed to be a calendar month from one rent due date to the next (or 28 days if rent paid weekly), but a month outside these dates is widely accepted. Therefore, it would probably be down to the judge's discretion.

When some tenants of mine recently moved out, they were unable to give me a full month's notice because they were buying a place and (as anyone who has experienced our wonderful protracted conveyancing system knows) you often don't know exactly when you'll be able to exchange, and completion typically follows 2 weeks later. However, the tenants had forewarned me 3 months earlier that they were buying a place - they thought they'd be completing in a month to 6 weeks!

What I'm saying is that in reality, there needs to be some flexibility and give and take on both sides, as not every move out situation is as cut and dried as the law sets out.

In Paula's case, I would say that if the relationship with this tenant has been good up until now, and you trust her, why not just sit down with her and discuss and negotiate this? Tenant's won't understand that landlords often need some time to prepare before they can re-let a property, especially if it's been let for a long time, and all the expenses involved (even if the property can be quickly turned around).

Paula Morrow

22:53 PM, 6th April 2016
About 3 years ago

Reply to the comment left by "Mandy Thomson" at "06/04/2016 - 09:51":

Thanks Mandy,
We're not actually re letting in this case, we're selling. We are also not looking to force her to move out on the 15th April although it is now making life more awkward for us, as everything was based around the earlier date she gave us.
I was trying to find out if anyone with more experience knew for sure if she had the legal right to stay the extra month or if it was at our discretion, as I was having no luck whatsoever going through the laws to find out.
If it was at our discretion I wanted to make sure she knew how big a favour we'd be doing her!

Gary Nock

23:23 PM, 6th April 2016
About 3 years ago

Paula it is immaterial really if its at your discretion or not. The only way to get possession of your property bar the tenant vacating is a Court Order. To get a Court Order you first of all have to serve either a Section 8 in the case of rent arrears or a Section 21 for a "no fault eviction" - which you already have done. If your tenant has done a bit of research she will know that. So if she doesn't go at the end of her one month notice period she is entitled to stay until you get her out. By all means try the double rent claim. But the Deposit Protection Schemes will not accept that and you will have to claim it through the civil courts. And the judges I assure you will not be happy bunnys if you try it. And then there's the expense. Keep it nice and simple and amicable. Wind the tenant up and she may well dig her heels in and force the court order. Which could take another two months after the expiry of Section 21. Then there's waiting for a bailiff. You may need to consider making her an offer to go, unpalatable as that may be. But it's pure economics.

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