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Periodic AST S.21 Notice period and deposit protection

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AleisterCrowley
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Periodic AST S.21 Notice period and deposit protection

#152666

Postby AleisterCrowley » July 16th, 2018, 2:02 pm

Moderator Message:
Moved to Legal ... (chas49)

background:
I haven't received a S21 NTQ yet
Tenancy started June 2001
Rent payable monthly in advance, on or around 27th of the month.


NOTICE PERIOD
Reading round the subject, it appears that the notice period is at least 2 months, but must also end on the last day of a rent period.

https://www.gov.uk/evicting-tenants/sec ... -8-notices
How much notice you need to give;
A Section 21 notice must always give your tenants at least 2 months’ notice to leave your property.
If it’s a periodic tenancy, you must also let your tenants stay for any additional time covered by their final rent payment.

So, assumption is if I receive notice before end of July, the last day of tenancy must be 30 September

DEPOSIT

I paid a £750 refundable deposit at the start of the tenancy.
Shelter site says;
https://england.shelter.org.uk/housing_ ... tion_rules

Your landlord doesn't have to protect your deposit if you've had a periodic (rolling) assured shorthold tenancy since before 6 April 2007
But if they want to give you a section 21 notice to end your tenancy they must protect or return your deposit

I've had no notification that the deposit has been protected
https://england.shelter.org.uk/housing_ ... e_is_valid
3. Check if your deposit is protected

A section 21 notice is invalid if:

your deposit wasn't protected in a government-approved tenancy deposit scheme
the deposit was protected more than 30 days after you paid it
your landlord hasn't given you required information about the tenancy deposit scheme used
Before your landlord can give you a valid section 21 notice, they must return your deposit to you in full if it wasn't protected or protected late.



Any thoughts?

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Re: Periodic AST S.21 Notice period and deposit protection

#152766

Postby GoSeigen » July 16th, 2018, 10:07 pm

AleisterCrowley wrote:So, assumption is if I receive notice before end of July, the last day of tenancy must be 30 September


No, absolutely not. Section 5(1)a of the Housing Act 1988 (as amended) states that an assured tenancy only ends when a court order giving possession to the Landlord is executed i.e. when bailiffs arrive, the landlord cannot kick you out on his own. You have every right to remain in your home until that point. The agents, landlord and ill informed people on these boards will try to make you feel bad if you don't jump when your landlord tells you to: ignore them and stay right where you are until you have a new home to move to.

DEPOSIT

I paid a £750 refundable deposit at the start of the tenancy.
[etc]

Any thoughts?


There are various conditions required for valid service of a Section 21 notice, one of which is protection of the deposit. Personally I would wait until you actually receive the notice before deciding what happens next. Certainly do not panic. You have plenty of time to sort yourself out. You have at least two months of the Section 21 notice even if they have done everything correctly; then there is a significant lead time for the court to consider the possession application (months), and arranging bailiffs adds more time. Getting the Section 21 notice right is not easy though so if they miss something out a new notice is needed and another two months' wait. So I really think you can relax a bit.

Ideally, you will want to use the landlord's knowledge of the above as leverage to negotiate a mutually acceptable date for you to leave and perhaps for him to be accommodating about references, returning deposit and even offering some inventive to help you leave quickly and painlessly (you could ask him to cover agent's fees for finding a new place for example.) All of this assumes you have been a good tenant and continue to pay the rent and otherwise be co-operative. Failing in any of your obligations under your contract is likely to aggravate the landlord and/or agent and be counterproductive.


I hope some of your comments about rivers etc have been tongue-in-cheek. Moving is a pain in the neck but it is not the end of the world. If you are feeling depressed about it, though, make sure you access appropriate help and support, and keep posting on this board!

Good luck, look forward to the occasional update.

GS

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Re: Periodic AST S.21 Notice period and deposit protection

#152773

Postby AleisterCrowley » July 16th, 2018, 10:30 pm

Thanks GS
No, absolutely not. Section 5(1)a of the Housing Act 1988 (as amended) states that an assured tenancy only ends when a court order giving possession to the Landlord is executed i.e. when bailiffs arrive, the landlord cannot kick you out on his own.

My reading of it (based on secondary sources) is the landlord can serve a S21 notice to quit without reason, but must follow the rules for it to be valid. You mention assured tenacy, rather than assured shorthold tenacy (which is what mine is) - may affect matters

I appears that, for tenancies commencing pre May 2007 (I think), the landlord must protect the deposit or return it in full before a valid notice to quit can be served - based on reading the two sections from the Shelter site quoted.



Ideal situation for me, given that I really should move, is;
(a)plenty of time to get sorted, especially as I have holiday booked late July and August
(b) full deposit back asap, to avoid any possible legal wrangling, which I think I'd win given the lentyh of tenancy and the fact the landlord has sold/has offer on flat already, so can hardly claim £x for work to get it habitable

And no, it's unlikely I'll be jumping in the river at any point soon :-) It is a pain in the posterior though, particularly with work being busy

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Re: Periodic AST S.21 Notice period and deposit protection

#152781

Postby GoSeigen » July 16th, 2018, 11:51 pm

AleisterCrowley wrote:Thanks GS
No, absolutely not. Section 5(1)a of the Housing Act 1988 (as amended) states that an assured tenancy only ends when a court order giving possession to the Landlord is executed i.e. when bailiffs arrive, the landlord cannot kick you out on his own.

My reading of it (based on secondary sources) is the landlord can serve a S21 notice to quit without reason, but must follow the rules for it to be valid. You mention assured tenacy, rather than assured shorthold tenacy (which is what mine is) - may affect matters


An assured shorthold tenancy is a type of assured tenancy so laws concerning the latter also apply to the former -- a major addition with ASTs is that landlords can serve S21 notice, with a assured tenancies only S8 notice can be given. If yours is an AST (as most tenancies are) then a S21 notice is likely. Agree that no specific grounds are required but various conditions must be met for the notice to be valid.

[Re terminology: there is a common law "notice to quit" but if a landlord serves it on a tenant it is NOT effective for taking possession. The landlord can only take possession after issuing a valid statutory s21 or s8 notice, then obtaining a court order and executing it through bailiffs -- or by negotiating a surrender with the tenant.]


I appears that, for tenancies commencing pre May 2007 (I think), the landlord must protect the deposit or return it in full before a valid notice to quit can be served - based on reading the two sections from the Shelter site quoted.


Ideal situation for me, given that I really should move, is;
(a)plenty of time to get sorted, especially as I have holiday booked late July and August
(b) full deposit back asap, to avoid any possible legal wrangling, which I think I'd win given the lentyh of tenancy and the fact the landlord has sold/has offer on flat already, so can hardly claim £x for work to get it habitable

And no, it's unlikely I'll be jumping in the river at any point soon :-) It is a pain in the posterior though, particularly with work being busy


I think if the landlord can agree a reasonable exit date with you and agree to return the entire deposit, he will have got an extremely trouble-free deal. Personally I'd insist on good references too.


GS

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Re: Periodic AST S.21 Notice period and deposit protection

#152819

Postby AleisterCrowley » July 17th, 2018, 9:08 am

I'd be happy with full deposit back and 30 Sep leave date (31 Oct would be better, although I need the 'pressure' to get myself moving)

Two scenarios that worry me;
(1) Get the letter today, telling me I'm out 17 Sep
(2) Get a call from agency asking if I received the letter a couple of weeks ago, as i'm due out 5 Sep

In both cases I think I could argue the S21 is invalid as the deposit hasn't been returned in full or protected

In case 2 I think a follow up up to confirm receipt would be require(?) as I've mentioned to agency I dont trust the post around here, and have requested they email/phone in addition to letter. Additionally the end date would be last day of September IF I've interpreted the rules correctly.

I'm not 'spoiling for a fight' and i'm happy to leave this autumn with minimum fuss, but I want plenty of time plus full deposit. I've never had any problems with agenvcy, who i assume provide references etc, and have been described as a good tenant!

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Re: Periodic AST S.21 Notice period and deposit protection

#152850

Postby pochisoldi » July 17th, 2018, 10:43 am

AleisterCrowley wrote:I'd be happy with full deposit back and 30 Sep leave date (31 Oct would be better, although I need the 'pressure' to get myself moving)

Two scenarios that worry me;
(1) Get the letter today, telling me I'm out 17 Sep
(2) Get a call from agency asking if I received the letter a couple of weeks ago, as i'm due out 5 Sep

In both cases I think I could argue the S21 is invalid as the deposit hasn't been returned in full or protected

In case 2 I think a follow up up to confirm receipt would be require(?) as I've mentioned to agency I dont trust the post around here, and have requested they email/phone in addition to letter. Additionally the end date would be last day of September IF I've interpreted the rules correctly.

I'm not 'spoiling for a fight' and i'm happy to leave this autumn with minimum fuss, but I want plenty of time plus full deposit. I've never had any problems with agenvcy, who i assume provide references etc, and have been described as a good tenant!



Oh dear - sounds like you have a useless letting agent to deal with.
They will be playing you off against the landlord.
Personally I'd try to cut out the middle man - speak the landlord.

You want certainty - "I can stay until 30th September"
The landlord wants certainty "I will definitely have the property back on the 30th of September"

The Letting agent appears to be less than conversant with the law regarding S21 notices.

I would trade (1) a "no nonsense, I'll definitely be out on date X" for "Deposit returned in full".
and (2) "Excess Rent returned if I move out earlier" for "If I find somewhere soon, you can have the property more quickly".

Either or both of these are completely legit - (2) is probably more important, because it would enable you to choose the new place you want without having to pay rent on two places.

Remember the letting agent's priorities in life:
a) Make money out of the tenant
b) Make money out of the landlord
c) Generate confusion to maximise (a) and (b)

PochiSoldi

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Re: Periodic AST S.21 Notice period and deposit protection

#152853

Postby AleisterCrowley » July 17th, 2018, 10:57 am

Well, they havent done anything yet, other than inform me the last viewer is buying the property (no idea how long that'll take)
I may well get a perfect S21 NTQ with a cheque for £750* attached and a leave date 30 September.
Just want to make sure I know my rights if/when they cock up... In fairness they have been pretty good during my tenancy.

AC


(actually £790,found the contract and receipt)

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Re: Periodic AST S.21 Notice period and deposit protection

#152966

Postby modellingman » July 17th, 2018, 5:35 pm

The advice you have received from Go Seigen and pochisoldi appears pretty sound to me.

The situation on deposit protection for deposits taken before April 2007 (when the deposit protection regulations came into force) was clarified by the Deregulation Act 2015. Essentially, the Act gave landlords/agents a 90 day window (which has long since passed) to protect any such deposits they held. If they didn't do this at the time then the only way that a valid Section 21 notice can be issued to you is for your deposit to be returned in full to you.

Although I note that the advice on .gov.uk is a Section 21 notice must always give your tenants at least 2 months’ notice to leave your property.
If it’s a periodic tenancy, you must also let your tenants stay for any additional time covered by their final rent payment.
, the legal basis of the additional time bit is far from clear.

One of the other changes introduced by the Deregulation Act was to drop (in England) the requirement that the end date of a S21 notice should be the last day of a tenancy period. A S21 notice can now be issued with the end-date falling mid-way through a rent period. The Act also added a new Section 21C to the Housing Act 1988 which provides for repayment of rent to the tenant if the tenancy ends before the end of a rent period. In practice, I would expect a tenant under a Section 21 notice and intending to leave would make a short final rent payment pro-rated on the number of days in occupation.

As Go Seigen has noted, landlords/agents have to jump through some hoops to ensure a Section 21 notice is valid and validly served. If you do receive something that purports to be a S21 notice, then I would get it checked. If you ignore the notice, the landlord's next legal step is to apply to the local county court for an accelerated possession order. If your deposit was not returned to you before the S21 was issued then your defence would be that the notice was invalid and the landlord's claim will fail. Similarly, if the notice is procedurally incorrect in other respects, that will also provide you with a valid defence.

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Re: Periodic AST S.21 Notice period and deposit protection

#153050

Postby AleisterCrowley » July 17th, 2018, 10:22 pm

Many thanks for replies to date;

modellingman wrote:The advice you have received from Go Seigen and pochisoldi appears pretty sound to me.

The situation on deposit protection for deposits taken before April 2007 (when the deposit protection regulations came into force) was clarified by the Deregulation Act 2015. Essentially, the Act gave landlords/agents a 90 day window (which has long since passed) to protect any such deposits they held. If they didn't do this at the time then the only way that a valid Section 21 notice can be issued to you is for your deposit to be returned in full to you.

I didnt know that, so thanks for pointing it out.
The Shelter site says: "Your landlord doesn't have to protect your deposit if you've had a periodic (rolling) assured shorthold tenancy since before 6 April 2007
But if they want to give you a section 21 notice to end your tenancy they must protect or return your deposit" - my empasis
So, the protection option isn't availble now >

SUDDEN THOUGHT- perhaps the agency did protect the deposit within the window available? Are they not supposed to inform me though> How do I check?
modellingman wrote:Although I note that the advice on .gov.uk is a Section 21 notice must always give your tenants at least 2 months’ notice to leave your property.
If it’s a periodic tenancy, you must also let your tenants stay for any additional time covered by their final rent payment.
, the legal basis of the additional time bit is far from clear.

One of the other changes introduced by the Deregulation Act was to drop (in England) the requirement that the end date of a S21 notice should be the last day of a tenancy period. A S21 notice can now be issued with the end-date falling mid-way through a rent period. The Act also added a new Section 21C to the Housing Act 1988 which provides for repayment of rent to the tenant if the tenancy ends before the end of a rent period. In practice, I would expect a tenant under a Section 21 notice and intending to leave would make a short final rent payment pro-rated on the number of days in occupation.


Hmm, so back to a rolling 2 months from when I get my (valid) S21 NTQ then ? Odd that the gov.uk site seems to contradict this

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Re: Periodic AST S.21 Notice period and deposit protection

#153063

Postby modellingman » July 18th, 2018, 2:12 am

AleisterCrowley wrote:Many thanks for replies to date;

modellingman wrote:The advice you have received from Go Seigen and pochisoldi appears pretty sound to me.

The situation on deposit protection for deposits taken before April 2007 (when the deposit protection regulations came into force) was clarified by the Deregulation Act 2015. Essentially, the Act gave landlords/agents a 90 day window (which has long since passed) to protect any such deposits they held. If they didn't do this at the time then the only way that a valid Section 21 notice can be issued to you is for your deposit to be returned in full to you.

I didnt know that, so thanks for pointing it out.
The Shelter site says: "Your landlord doesn't have to protect your deposit if you've had a periodic (rolling) assured shorthold tenancy since before 6 April 2007
But if they want to give you a section 21 notice to end your tenancy they must protect or return your deposit" - my empasis
So, the protection option isn't availble now >

SUDDEN THOUGHT- perhaps the agency did protect the deposit within the window available? Are they not supposed to inform me though> How do I check?


Apologies, I think I got it slightly wrong. The 90-day window applied in those cases where the deposit was taken before 6 April 2007 and the tenancy went periodic after that date, so not your situation. This post from LandlordLawBlog gives the same story as your Shelter source. In your case where the tenancy went periodic before 6 April 2007, the landlord's hurdle is that the Section 21 is only valid if either the deposit has been previously protected or returned to you.

Each of the deposit protection schemes provides a facility for checking if your deposit is protected with them. For example, the DPS' facility is here. Further, when a landlord protects a tenant's deposit they are required to provide written details of the protection scheme that has been used. These details, which are prescribed in regulations, are termed the "prescribed information" and must also have been provided to the tenant prior to issuing the S21 notice.

Incidentally, if your deposit has been protected you are pretty much guaranteed to get it all back. This is because the process requires the landlord and tenant to agree any deductions to be made from the deposit. If agreement cannot be reached then each scheme operates an arbitration process based on written submissions. The onus is very much on the landlord to provide justification for any deductions being claimed. Unless there is a detailed inventory which was agreed at the start of the tenancy, there will be no yardstick against which the present condition of the property can be judged. Without such a yardstick the landlord has no means of evidencing any claim. You may have to stand your ground in any discussion about claims on your deposit as it is not unknown for landlords and agents to try and bully tenants over this.

AleisterCrowley wrote:
modellingman wrote:Although I note that the advice on .gov.uk is a Section 21 notice must always give your tenants at least 2 months’ notice to leave your property.
If it’s a periodic tenancy, you must also let your tenants stay for any additional time covered by their final rent payment.
, the legal basis of the additional time bit is far from clear.

One of the other changes introduced by the Deregulation Act was to drop (in England) the requirement that the end date of a S21 notice should be the last day of a tenancy period. A S21 notice can now be issued with the end-date falling mid-way through a rent period. The Act also added a new Section 21C to the Housing Act 1988 which provides for repayment of rent to the tenant if the tenancy ends before the end of a rent period. In practice, I would expect a tenant under a Section 21 notice and intending to leave would make a short final rent payment pro-rated on the number of days in occupation.


Hmm, so back to a rolling 2 months from when I get my (valid) S21 NTQ then ? Odd that the gov.uk site seems to contradict this


Bear in mind that this section on .gov.uk at will have been written by the Ministry of Housing, Communities and Local Government, whose performance in this area is far from stellar. The ministry has, over the years, had at least three goes at getting the legislation on tenancy deposits right (the Deregulation Act, being its most recent attempt). A more recent example of MHCLG's "competence" can be found in the How to Rent booklet. For tenancies commencing after 1 October 2015, landlords are required to issue a copy of this booklet to tenants at the start of a tenancy - without it, no Section 21 can be issued. Further, the version of the booklet issued must be the latest version. In June this year a new version was issued by MCHLG. Less than a month later, this version was superceded because its title did not conform to the relevant regulations. As a result, the National Landlord's Association is now advising members who had issued the June 2018 version to tenants that they should re-issue the later July 2018 version to be absolutely certain of conforming to the conditions for being able to issue Section 21 notices.

As a fairly experienced landlord who self-manages, I try and follow legislative and related developments in this area closely. I raised my doubts about the validity of the "additional time" bit because a) the only reference I have ever seen to it is on the .gov.uk webpage you quoted b) it cuts across two of the changes introduced in the Deregulation Act (notice need no longer expire on the last day of a rent period and the requirement to refund tenants for days of non-occupation via Section 21C) and c) my view of MHCLG's ability to get anything right first time in this field.

At the time the Deregulation Act came into force, this landlord's organisation seemed to be taking the view that rent apportionment would be required in the final period of the tenancy, with the implication that allowing the tenant "additional time" was not a requirement.

Of course, I could be wrong and if anyone knows different on this aspect S21 then I'm always happy to learn.

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Re: Periodic AST S.21 Notice period and deposit protection

#153087

Postby AleisterCrowley » July 18th, 2018, 8:47 am

Great, thanks ModellingMan, I'll have a read during my 0900 meeting (!)
Can't help thinking they've made this all very complicated, and a simple matrix/flowchart would have simplified things...

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Re: Periodic AST S.21 Notice period and deposit protection

#153108

Postby modellingman » July 18th, 2018, 10:36 am

AleisterCrowley wrote:Can't help thinking they've made this all very complicated, and a simple matrix/flowchart would have simplified things...


Welcome to my world. Fortunately, I have only ever twice needed to issue a Section 21 notice, and only once needed to follow through with court action (which was successful and with a tenancy starting after 1 October 2015).

Although it doesn't currently apply to your situation (only to tenancies created after 1 Oct 2015), the national housing advice service has produced a "sort of" flowchart (pdf) for the pitfalls involved in serving S21 notices. In reality, it is more of a checklist for use against ill-informed landlords/agents. There aren't quite as many pitfalls for the landlord/agent in your situation but there are some, hence the earlier advice to check anything purporting to be a S21 notice for validity. Your local Council will have a homelessness team who might be willing to assist.

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Re: Periodic AST S.21 Notice period and deposit protection

#153114

Postby AleisterCrowley » July 18th, 2018, 10:47 am

Thanks, that's the sort of thing I had in mind - shame there isn't one for 'old' tenancies
I guess I need to wait for the agent's next move, but could do with some certainty. Obviously I can't start renting elsewhere until I get a definite date (and references etc) With potential rents being >£800 I'd be risking losing £1000+ during cross-over period. I guess I could find somewhere and give notice myself, although that might put my deposit at risk

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Re: Periodic AST S.21 Notice period and deposit protection

#155169

Postby AleisterCrowley » July 25th, 2018, 10:10 pm

Just got the S21 - will start a new thread

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Re: Periodic AST S.21 Notice period and deposit protection

#155179

Postby AleisterCrowley » July 25th, 2018, 11:10 pm



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