Serving A Section 21 At The Beginning Of A Tenancy

UPDATE 27/09/2015: As of October 2015, Landlords in England will no longer be able to serve a section 21 at the beginning of a tenancy if the tenancy started on or after October 2015, they will now need to wait 4 months into the tenancy. For more details, please go to the new 2015 section 21 legislation page. However, these new changes do NOT apply to tenancies in Wales (regardless of when the tenancy started) or tenancies in England that started before October 2015, so the below will still be applicable. Now, back to the original blog post…

Unfortunately, I learned this particular lesson the hard way. It was one of those God awful scenarios where the only mildly positive takeaway was a “lesson well learned”; everything else about it was utter bullshit. If I hadn’t learned a lesson, I probably would have killed myself (or most likely my tenant).

You know, I have no idea why people like learning through their own mistakes; I’d rather learn through others. Alas, that didn’t happen in this scenario, so perhaps you can learn from my mistake.

After losing a few months rent and sprouting a few grey hairs on my nuts, I learned a valuable lesson; to always serve a section 21 notice at the beginning of every tenancy.

How I learned my lesson…

A few years ago (yeah, sorry, bit late telling this story), I had a ghastly little tenant that signed a 6 month tenancy agreement. For the first 4 months everything was hunky Dory; she paid rent on time and I didn’t hear so much as a peep out of her cake-hole (just how I like it). Destined to be struck down by the Lord, my tenant had transformed into a clumsy, slow-witted, non-paying buffoon during the 4th and 5th month, consequently I was left out of pocket.

On the 6th month, the tenancy was due to expire, and ideally I would have wanted her stupid arse out of my crib by then. However, due to my stupidity naivety, I didn’t serve a section 21 (notice of possession) two months prior to the end date of the termination period stipulated in the Tenancy Agreement (key-point: because I didn’t anticipate she would fall into arrears), consequently my tenant had a legal right to remain in the property and allow the tenancy to roll into a periodic tenancy until I served her with a valid possession notice (what a jacked up law!). My other option was to serve her with a Section 8 (eviction notice on the grounds of arrears). However, in this particular situation, going down the Section 8 route can be both more time-consuming, complicated and expensive than sticking to my Section 21 guns!

I’m pretty sure my tenant knew what she was doing; she knew how to take advantage of the broken system; she knew landlords are legally required to give tenants a minimum of 2 months notice to vacate; she knew the “termination date” in the tenancy agreement is NOT a valid notice of possession (surprisingly, most landlords/tenants aren’t aware of that). On a sidenote, an alternative method of legally terminating a tenancy without serving a possession notice is for both parties to surrender the tenancy. Obviously that wouldn’t be in her best interest because 1) she knew she could live in my property for an extra 2 months while rent-dodging 2) she couldn’t afford to move out 3) the chances of her being forced to pay the arrears through the legal system at any decent rate were extremely slim 4) she knew I couldn’t legally enter the property and throw her corpse onto the streets 5) she’s an inconsiderate blood-sucking slosher, and a reasonable gesture like surrendering tenancy would go against her tainted medieval gene pool.

Hell, if I was her, I would have also stayed in the property.

The lesson learned!

Section 21 notices can be legally served as soon as a tenancy begins as long as the security deposit is secured into a tenancy deposit scheme and with the tenant prescribed with all the relevant information relating to the deposit protection; so approximately 7-14 days after the tenancy begins. Another point to mention is that I’ve heard that courts have been known to dislike Section 21 notices being served at the beginning of a tenancy unless the tenant is made aware of the end of tenancy before entering into a new tenancy. So ALWAYS make it clear!

Had I of followed the correct procedure and served the Section 21 ASAP, I would have been able to repossess the property on the end date of the tenancy, and I would have been out of pocket by only one month’s rent, as opposed to three. Ouch.

For example, if I create a 6 month tenancy today (the 3rd July 2012), I can serve a Section 21 with it, which states that I require possession of the property on 3rd January (the tenancy end date). All the tenant needs is a minimum of 2 months notice; so actually, I could serve it at any time before the 3rd November 2012, because that would still give the tenant 2 months notice before the end date. However, it’s easier to serve it at the beginning of each tenancy, and it gives better protection to landlords if the tenant falls into arrears during the 5th month of a 6th month tenancy. If that happens, and a section 21 is served at the beginning of a tenancy, the tenant is legally obligated to vacate the property at the end date agreed upon in the tenancy agreement. However, if a section 21 isn’t served until the 5th month (the month where the tenant fell into arrears), the tenant will be allowed to legally remain in the property until a valid possession notice is served, with a minimum of 2 months notice, which effectively gives the tenant an opportunity to live in the property for 3 months without paying rent. It’s a ‘orrible, ‘orrible system!

I think I’m just waffling now, but I hope it that all makes sense!

Why serve a section 21 at the beginning of a tenancy

To summerise…

  • First and foremost, it ensures that aspiring rogue tenants are legally vacated from the property as quickly as possible
  • It’s all about the landlord’s protection. Even if the possession notice is served at the beginning of the tenancy, the tenant doesn’t have to vacate the property if both landlord and tenant want the tenancy to continue. It’s there to safeguard against unforeseen rogue tenants and minimise damage. Fact is, you’ll NEVER know what your tenants will be like, no matter how presentable they look on paper and during their viewings
  • You won’t have to remember to serve it during a tenancy
  • If a tenant doesn’t vacate the property after serving a valid section 21 notice, the court will (in most cases) give immediate possession to the landlord, no messing around
  • Serving a section 21 at the beginning of a tenancy doesn’t just benefit landlords that have tenants breaching the T&C’s, but it also helps vacate tenants that landlords simply don’t like. Some times, for no real reason, we just don’t get on with people, and we’d rather get them out of our lives ASAP.
  • If you serve a Section 21 at the beginning of a tenancy (after the deposit is secured), it can come across as more of a formality (as long as you explain why it’s being served). But if you send it in the middle of a tenancy, the chances are, the tenant will take offence to it, and render it as an “eviction notice”.

So my advise, start all new tenancies with a 6 month period and serve a Section 21 notice at the beginning of every tenancy.

Comments, thoughts, further advice/tips? All welcome!

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52 Comments- join the conversation...

Showing 2 - 52 comments (out of 52)
The Landlord Avatar
The Landlord 4th July, 2012 @ 08:23

Hi Benji,

Yeah, the way I worded it may have been a bit misleading (due to the lack of information I provided in this particular post), but I didn't want to repeat what I've written in several other blog posts (which I linked to in this blog post). When I said "MUST vacate", I just meant that the tenant should vacate or the court will automatically give possession to the landlord, which isn't always the case with a Section 8, in which case the tenant shouldn't always necessarily vacate.

See, I don't really see Section 21 notices as "eviction notices" (because they're actually not), so I've never agreed with that argument. It's the landlord simply saying, "right now, I want you to stay in my property for 6 months, and once that 6 month has expired, I want you to vacate the property, because I'll need it back"

I don't see anything wrong/immoral with that!

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The Landlord Avatar
The Landlord 4th July, 2012 @ 08:28

P.s I've updated the post!

"If that happens, and a section 21 is served at the beginning of a tenancy, the tenant is legally obligated to vacate the property at the end date agreed upon in the tenancy agreement"

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George 4th July, 2012 @ 11:03

What happens if a landlord forgets to renew a tenancy where a section 21 notice has been served at the start?

If the tenant then fails to pay rent at month 14 for example. Would the forgetful landlord be able to chase this cash, and what if the problem persisted to the next month, how would you then evict them?

Electronic signature systems are a pretty neat way to do renewals if you don't actually want to go and see your tenants..

http://makeurmove.co.uk/page/landlords_free_tenancy_agreement_downloads

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The Landlord Avatar
The Landlord 4th July, 2012 @ 12:22

Hi George,

The landlord doesn't need to renew the tenancy. If the landlord "forgets" to renew the tenancy and the tenant remains in the property, the contract will automatically roll into a periodic tenancy. In this case, the terms in the original tenancy agreement still apply, but the contract rolls on a month-by-month basis (assuming the tenant pays rent monthly).

If the tenant fails to pay rent at month 14, the landlord can serve a Section 21 to repossess the property, and then tenant will be legally obligated to vacate in 2 months (assuming the tenancy is periodic). If the landlord does renew the contract with a 6/12 term and the tenant falls into arrears in month 14, then assuming the tenant is 2 months in arrears, the landlord can serve a Section 8 for eviction.

Evicting a tenant and chasing arrears are two different issues. Landlords can always go down the legal route to chase arrears.

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Benji 4th July, 2012 @ 20:00

No problem mate!
We all make mistakes and don't know it all.
Really made me laugh, genuinely no hard feelings on my part.
I think you've learnt from me equally as I've learnt from you
, So thanks_for_ the_ tips_ cnut!
Any chance of an unblock...ed drain story?

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Adrian Thompson 4th July, 2012 @ 21:12

Hello

Long time no speak!

In my view pretty much 99% of section 21 notices will be invalid if given "at the same time as the tenancy" for the following reasons:

(1) As already touched upon in a comment above, it's almost impossible to have the deposit protected by the time the section 21 had been served because I can't imagine the deposit would have been protected beforehand as what if the tenant didn't turn up? The landlord would have a protected deposit with no tenancy? Section 215 Housing Act 2004 prohibits the service of a section 21 "at any time" when the deposit is not protected.

(2) A section 21 may only be served by a "landlord" on a "tenant". Because landlord and tenant law runs midnight to midnight (hence a notice to quit asking for possession at 12.00 noon is invalid) it is not possible to determine whether a relationship of "landlord" and "tenant" existed at the precise time of giving the section 21 notice. This was confirmed (although slightly different circumstances) in Turpitt v Elizabeth [1998] Edmonton County Court (I accept county court only so not binding but I assure you the principle is correct).

(3) Once a section 21 notice has been served it is my view that a tenant may then vacate at any time without giving any notice. After all, we can't one minute ask a tenant to leave, then complain when they do! I accept there are many who will disagree with me on this but I will leave it for them to explain in front of a judge complaining "I gave notice and now they have left."

(4) Serving a section 21 at the beginning only leaves a landlord with bad tenants! If you think about it, only bad tenants remain in occupation after expiry of a section 21 notice because they are the tenants who have ignored the notice and remained regardless. All the good tenants will do as asked and leave!

(5) It's because of this practice of serving notice at the beginning that many organisations are lobbying for a use it or loose it type law. As correctly pointed out above, if you let the tenancy roll on then a section 21 remains in force technically forever unless withdrawn or a renewal is given (why anyone would renew I don't know). I have personally successfully relied upon a section 21 served 5 years previously and that is perfectly lawful.

(6) Morally, I don't think it sends the right signal at the beginning of the tenancy. Here's a tenancy but by the way I want you to leave. I do however, accept the argument for serving a notice in the early stages of a tenancy.

I would therefore urge any landlord wishing to adopt this practice to wait at least 7 days to allow the deposit to be fully protected. If there is no deposit, then wait at least until the next day as an absolute minimum. Assuming you've given a six month tenancy (I personally give 3 month tenancies) there is plenty of time to give the notice and have it expire at the earliest opportunity i.e. no sooner than expiry of the fixed term.

Hope this helps.

Many thanks

Adrian

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The Landlord Avatar
The Landlord 4th July, 2012 @ 21:45

Hey Adrian,

Great comments. However, I don't agree with all of them. Regardless, point number 3, 4, 5 and 6 doesn't make the Section 21 invalid if served at the beginning of a tenancy, they're just reasons not to do it. But they're good reasons, and they should be taken into consideration.

Point number 1 and 2 are definitely valid, and I agree. As mentioned, a lot of this is discussed in my Section 21 blog page which I linked to; I didn't want to go into too much depth because I'd only be repeating myself. However, I did add a small disclaimer in my final bullet point, "If you serve a Section 21 at the beginning of a tenancy (after the deposit is secured)" it can come across as more of a formality. But if you send it in the middle of a tenancy, the chances are, the tenant will take offence to it, and render it as an eviction notice"

I still maintain that it's safe to serve a section 21 at the beginning of a tenancy providing that 1) the deposit is secured 2) the landlord explains to the tenant why it's being served. If the tenant is reasonable, I imagine they'd understand.

Thanks again

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Paul 6th July, 2012 @ 23:47

I thought you where the dogs dongles when it came to advice, so after reading this new post of your i decided that i am going to serve me prospective tenant with section 21 at the beginning of ther tenancy... BUT luckley before printing any paperwork ect i did a little digging and found out that serving section 21 at the date of contract signing is a stupid idea... why? i hear you ask.. well simple because it will not be VALID...reason for it being invalid is because the deposit has not been protected therefore its not valid. However if you did not take a deposit then by all means feel free to issue section 21, although make sure you issue correct one and use correct wording as getting it wrong will not uphold in court. 7 out of 10 section 21 get thrown out of court due to simple mistakes with wording and dates. Plus gazzilion more reason why its not a good idea to start off a relation ship on distrust. But at the same time better to be safe then sorry... Each landlord choice really.

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The Landlord Avatar
The Landlord 7th July, 2012 @ 07:57

I mention that the deposit needs to be secured on this page and the Section 21 page, which I link to...

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Paul 7th July, 2012 @ 14:43

But how you going to secure the deposit on the day of contract signing?

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The Landlord Avatar
The Landlord 7th July, 2012 @ 16:05

"After losing a few months rent and sprouting a few grey hairs on my nuts, I learned a valuable lesson; to always serve a section 21 notice at the beginning of every tenancy. At the beginning, meaning after the security deposit is secured into a tenancy deposit scheme; so approximately 7-14 days after the tenancy begins."

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Paul 7th July, 2012 @ 23:02

Got you!!!! How do you serve the section 21 then? in person or mail. If in person what do you say to the tenant? How do tenants react to s21? Whats the best way to calm them down and explain s21 to them? Do you do it with all new tenants?
If you serve it in post what do you write in the letter?

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cardifflandlord 8th July, 2012 @ 20:21

Pretty sure that the section 21 cannot be served on the same day as the tenancy is signed - I think I saw on Tessa Shepperson's site that it needs to be signed the day after as on the day of signing the AST a contract is not in place. Stand to be corrected on this!

Also Section 21 notice is a notice of possession not a notice of eviction. Eviction is a separate legal entity.

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Benji 8th July, 2012 @ 23:32

Cardifflandlord, you are talking bollocks. Get your facts right before offering advice on here. Opinions are like a******es - everyones got one!

If* Ms Shepperson said that a section 21 cannot be served on the same day then she is wrong.

* Make that a big 'IF'.
She probably said something on the lines of "highly recommended not to", "avoids confusion", "best practice", "not worth the risk" etc.
But I stand to be corrected on this!

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Benji 8th July, 2012 @ 23:50

Paul,
"7 out of 10 section 21 get thrown out of court due to simple mistakes with wording and dates."

I think youve got this the wrong way round. Most section 21 claims are successful.

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The Landlord Avatar
The Landlord 9th July, 2012 @ 09:00

@Cardifflandlord!

Long time!!!

As far as I'm aware, the only times when Section 21's are not valid are when:

- where a tenancy deposit has been paid to the landlord/agent but not protected in a government authorised tenancy deposit scheme

- if the property is an HMO which ought to be licensed but is not

- if the section 21 has not been served properly, like correct dates..etc

"Also Section 21 notice is a notice of possession not a notice of eviction" - was that aimed at me? I already mention the difference between the two.

@Benji
Welcome back, Benji. *hugz*

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Tom 19th July, 2012 @ 11:15

Is the suggestion here that tenancies are never allowed to become statutory periodic and either the tenant must leave at the end of the fixed term or landlord must grant another fixed term with another s21? What about scenario that you have really good tenants and you allow the tenancy to roll over deliberately what would the process/ mechanism for either party to bring the tenancy to an end?

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The Landlord Avatar
The Landlord 19th July, 2012 @ 11:54

@Tom

Nope, I'm not suggesting that the tenancy should never become periodic. I'm saying it's safe to serve a section 21 at the beginning of a tenancy. As the article says,

"Even if the possession notice is served at the beginning of the tenancy, the tenant doesn't have to vacate the property if both landlord and tenant want the tenancy to continue."

If you allow the tenancy to roll into periodic, you can serve a section 21 at any point to end the tenancy (giving the tenant 2 months notice). The other way to amicably end a tenancy is by the tenant surrendering the tenancy.

If you're happy with the tenant to remain in the property, either allow the tenancy to roll into a periodic tenancy or renew the contracts.

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epc 28th July, 2012 @ 09:19

How do you serve the section 21 then? But the landlord doesn't need to renew the tenancy.

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Alan Mayhew 29th August, 2012 @ 14:14

A quick question on issue of a section 21 and securing a deposit. I served a section 21 a few days after the start of my tenants ocupation and allthought the property was supposed to have a security deposit the tennant never managed, ever, to scrape the full amount together and fell into arrears almost imediatly, partly down to DSS issues (yes I know I should not have let them in without the full deposit) . The tenant later agreed and wrote me a letter confirming that I could use the deposit money collected so far against overdue rent payments, so the tennancy is now progressing without a deposit in place. The 6 months are up and the arrears are no better and I intended to rely on the section 21 to get them out, will this cause confusion with the lack of a deposit which was never recieved in full anyway?

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George 29th August, 2012 @ 14:51

Hi Alan,

Did you lodge the amount you received in an accredited scheme such as the DPS? Unfortunately there can be complications, specifically with the serving of a section 21 notice, if the security deposit has not been lodged in this way.

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Alan Mayhew 29th August, 2012 @ 15:11

Hi George

No the deposit was never lodged as the tennant never actualy managed to give the full amount and I was uncertain about adding it in dribs and drabs to a scheme and the tennant was allready in arrears and having complications with the DSS so we eventaully agreed to run without a deposit (I have a letter from them agreeing to this) and maybe revisit the deposit issue at a later date, the tennant has been in a few days short of the six months and in that time I have never had the full deposit or the rent fully up to date. so want them out

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Jeremy 29th August, 2012 @ 20:18

Hello Alan,

I'm sorry to say I think you're in trouble. I've not experienced your exact circumstances but here's the rub:
- The law expects you to secure the deposit immediately;
- You have to get over the dribs and drabs issue
- Contractually, who the the deposit is returned to at the END of the tenancy is decided at the END of the tenancy, not during.

So as the tenancy comes to an end you should have a higher rent arrears amount, but a protected deposit amount which will pay-off some of those arrears.

I know it feels counter-intuiative to pay funds into a deposit scheme whilst you're short of rent funds, but this is the strength of the law surrounding tenancy deposits because too many shark landlords have taken advantage.

If you visit the blogs on DSS tenants you'll realise council rules around "voluntary homelesness" maens some DSS funded tenants hang on for grim death. And if some cleaver person of Housing dept or Shelter realise the deposit is unprotected then you're cornered.

I would suggest an approach to a local solicitor for one of those free ten minute chats

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Benji 30th August, 2012 @ 12:00

Alan,
My view is that your original section 21 is invalid as the deposit was not protected.
As the deposit has now effectively been returned a new section 21 can now be served.
You would potentially still be open to a retrospective claim for non protection of the (partial) deposit.

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Jeremy 30th August, 2012 @ 22:38

Hello Benji,

Good to hear from you again, hope you're well and things are going good for you.

For Alan's sake, I hope you're right, because it would make his position more favourable than I think it is. But I wonder if you're being over optomistic.

What do you mean by: "As the deposit has now effectively been returned"? I don't beleive it has. All the tenancy agreements I've seen say the disbursement of the deposit money happens at the endof the tenancy. This tenancy is still running.

So even though the tenant has nominally agreed, a court could interpret the Alan placed undue coertion to get the agreement and declare he has failed to protect it properly.

Happy to take your thoughts on this.

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Benji 31st August, 2012 @ 10:35

Jeremy,

I should have known better than trying to slip that past you without an explanation!

My thoughts as follows-

Presumably we agree that,

1. A deposit can be used as rent anytime during a tenancy provided it is mutually agreed by tenant and landlord to do so.
2. If an unprotected deposit is returned a section 21 can then be served (but not before). A landlord would still be open to a claim for not protecting the deposit.

As Alan's tenant (presumably) does not dispute the arrears, is not claiming disrepair etc and has given written agreement of such, then to all intents and purposes the deposit has been returned by mutual agreement. I believe a court would view it as so.

This would seem to agree-
http://www.landlordlaw.co.uk/tenants/tips/tessas-ten-top-tips-tenants-tenancy-deposits
"If your landlord serves a section 21 notice on you, this will be invalid if the deposit has not been protected unless he refunds the deposit money or offsets it against money owed by you with your consent, or unless you have brought a claim for the penalty payment which has been resolved."

But as you are aware, much of the new legislation has yet to be tested in court and your more pessimistic view may prove correct.

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Jeremy 1st September, 2012 @ 13:11

Hello Benji,

Thanks for your thoughts. Now I get why we're differeing. I'm actually not convinced we agree in presumption 1: Using a deposit during the tenancy in the circumstances Alan got.

Here goes my thinking:
+ Most (All?) tenancy contracts say the deposit gets distributed at teh end of the tenancy;
+ There is an arguement to say this can be negotiated to be early release between the two agreeing parties to teh teanancy;
+ But this approach does not make reference to the deposit protection law, i.e. the law MIGHT make any such agreement void. Particularly void against the landlord, as the law is there to rotect the tenant.

Finally, in Alan's circumstances the agreement to utilise the deposit was taken outside the custodianship of a deposit taker. So there is no independent "audit trail" that shows the money was taken by agreement, not co-ersion.

What worries me is that even if the tenant is a genuine, honest person who would be happy to tell the truth, lets see what happens when he looks for his next house, going into the Kafkeresque world of housing benefit. I'll start with a trip to the council:

Tenant: "I'm being asked to leave my house, because I;ve got loads of rent arrears. I;ve got a Section 21. I've got debts all over the place. I've got no hope of getting a deposit together, I'm going to have nowhere to live"

HB Officer: "Well, there's no HB for you, you're making yorself voluntarily homeless if you leave off the section 21 notice. Got to Shelter"

Over at Shelter...
Helper: "We notice there's an irregularity in the deposit. It was never protected. The landlord knows he's in trouble. If we sit tight and wait for eviction, then you can't lose. If you're evicted you'll get HB. And in the process you might get awarded 3x deposit".

Suddnely the tenent is motivated by the system to stay put and possibly tell lies about how he was strong-armed into agreing to giving the landlord the deposit.

And it's that fear which makes my think Alan needs a legal expert on his side fairly early into the process.

The thing is, I could not find a couple of links to statutes I was looking for. So if you've got any links, I'd be grateful: Because I'm in a "beleive" place, rather than a "know for certain" place.

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Alan 3rd September, 2012 @ 08:53

Hello Jeremy,

This is the relevant link-
http://www.legislation.gov.uk/ukpga/2011/20/section/184/enacted
(12)In subsection (2) (prevention of service of notice under section 21 of the Housing Act 1988) at the beginning insert “Subject to subsection (2A),”. .
(13)After subsection (2) insert— .
“(2A)Subsections (1) and (2) do not apply in a case where— .
(a)the deposit has been returned to the tenant in full or with such deductions as are agreed between the landlord and tenant.

To me, the last part is clear and unambiguous. Although as earlier stated, a lot of this is yet to be tested in court.
I have faith in our judges to see through any spurious coercion claim.
The tenant would have to bring a separate claim for the up to 3X unprotected deposit.
Certainly good advice to seek professional legal help, although it needs to be from someone specialised in landlord and tenant law.
Cant argue with the Kafka world of HB (made me laugh), although I think they would stop short at advising tenants to lie.

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Benji 3rd September, 2012 @ 09:00

Hello again Jeremy,

Sorry about the confusion in name. I had to post under a different name when using some computers due to my earlier ban (now magnaminously lifted).

Regards, Benji

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Jeremy 6th September, 2012 @ 22:04

Hello Alan Benji,

Thanks for the link. Sorry It's taken me a while to get back. This one started to hurt my head! I've merged the text from the localism act with the original houseing act. Your section now looks like this...

(1)If a tenancy deposit has been paid in connection with a shorthold tenancy, no section 21 notice may be given in relation to the tenancy at a time when— .
(a)the deposit is not being held in accordance with an authorised scheme, or .
(b)the initial requirements of such a scheme (see section 213(4)) have not been complied with in relation to the deposit. .
(2) Subject to subsection (2A), If section 213(6) is not complied with in relation to a deposit given in connection with a shorthold tenancy, no section 21 notice may be given in relation to the tenancy until such time as section 213(6)(a) is complied with. .
“(2A)Subsections (1) and (2) do not apply in a case where— .
(a)the deposit has been returned to the tenant in full or with such deductions as are agreed between the landlord and tenant, or .
(b)an application to a county court has been made under section 214(1) and has been determined by the court, withdrawn or settled by agreement between the parties.
(3)If any deposit given in connection with a shorthold tenancy could not be lawfully required as a result of section 213(7), no section 21 notice may be given in relation to the tenancy until such time as the property in question is returned to the person by whom it was given as a deposit. .
(4)In subsection (3) “deposit” has the meaning given by section 213(8). .
(5)In this section a “section 21 notice” means a notice under section 21(1)(b) or (4)(a) of the Housing Act 1988 (recovery of possession on termination of shorthold tenancy).

Your're focusing on Section 2. I'm looking at Section 1. The initial requirements of a scheme were not complied with and because you've now used the deposit up you can never comply with Section 1. I.e. the law has benned you from serving a valid Section 21 notice.

For your sake, I hope I'm wrong!

But we completely agree about untested law, I think any money you spend on the right solicitor will be money well spent here.

Best wishes! Please let me know how things go.

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Alan Mayhew 31st October, 2012 @ 22:02

Hi Benji & Jeremy, thanks for your past comments and help, I now have an update, The tenant has now paid up some of the money owed mainly due to the intervention of Housing Key workers (worried about the potential eviction of a family), Benefits help Team and many others...The DSS payments are now back in place and up to date. The rent shortfalls between the DSS payment and actual rent are not....but they are not far off. I am being asked to hold of enforcing the section 21 by the housing key workers as they look for more 'affordable' housing for the tenant and to work with them during that process....I have agreed to do ...
So unfortunaly for the expansion of your knowledge but fortunate for my wallet I wont be testing those laws....yet...I hope....ever

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Alan Mayhew 31st October, 2012 @ 22:07

Forgot to say I also put the deposit into the DPS once the back payments were all recieved....so I assume the best thing now would be for me to issue another new section 21 incase the 1st one could be challenged...would you agree? just as a back up

Regards Alan

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Benji 1st November, 2012 @ 13:13

Hello Alan Mayhew,

Your circumstances are never straightforward are they?

I think if you served a section 21 after you had agreed deductions from the deposit with the tenant, then it would be valid. I am assuming you correctly served a 2nd section 21 following your initial invalid one.

This link sums it up (part ii);

https://www.landlordsguild.com/tenancy-deposits-and-serving-a-section-21-notice/

"Once 30 days has passed and the deposit was not protected (even if it is subsequently protected) the landlord may only serve a section 21 notice if any of the following is done:

(i) Return the deposit [section 215(2A)(a)] or,

(ii) Agreed deductions from the deposit with the tenant [section 215(2A)(a)] or,

(iii) If the tenant has already made an application for the penalty of up to 3 x deposit for the failure to protect the deposit or give prescribed information within 30 days (even if it was subsequently protected) and that application has been determined by the court, withdrawn or settled [section 215(2A)(b)]."

I'm guessing the Housing key workers, Benefits help team (and many others) have also scrutinised your section 21.

Regarding the 2nd deposit. Why didn't you use the money to pay off the 'top up' arrears first?

Anyway, I trust you have protected the 2nd deposit within 30 days and (importantly) served the full prescribed information.

In my opinion, you should rely on your 2nd section 21, however, Jeremy's earlier suggestion of seeking legal advice is a good one as this is far from straightforward.

I would be very wary of trusting the Housing key workers, Benefits help team (and many others). They are not acting in your interests.

Personally, for the sake of the £175 fee (reclaimable from the tenant, theoretically), I would apply for a possession order as soon as the section 21 allows. If they are still playing ball, then perhaps hold off instructing the bailiffs.

But this is not substitute for proper legal advice.

Good luck.

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Jan 11th December, 2012 @ 21:09

I think it's a little unfair to serve S21 at the beginning of tenancy. Surely your selection process should elminate most plonkers, and you always have the option to serve an S21 as soon as the tenant misses a payment, then you will lose a max of 2 months rent. If also is a more open and morally respectable way to do business.

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Benji 12th December, 2012 @ 12:01

@Jan,
I would agree, if it was just a case of losing a max of 2 months rent.

However, gaining possession using the S21 procedure from the beginning takes a lot longer than that, even if the landlord gets everything right. The costs of the legal fees alone can be more than 2 months rent.
The other possession grounds have become (generally) ineffective and are easy to defend and delay against.

Rent guarantee insurance with legal expenses cover helps to limit the losses, as does a home owning guarantor (if you want to keep your morals and respectability intact). All methods have their pros and cons.

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Ted 10th November, 2013 @ 13:11

Hi, can some help me. I need to serve a section 21 to my tenant. His tenancy began 19th June 2013 and ends 18th December 2013. So if I serve a Section 21 now, he can leave after 18th Jan 2013. Is that right?

Also, there are two different types of Section 21. Which one do I use: Section 21(10)(b)

or Section 21(4)(a)???

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Jan 30th July, 2014 @ 18:44

PLEASE DO NOT DO THIS - it is sneaky, poor practice will lose you a good tenant. My letting agents have just used the fact they served the section 21 at the start of my tenancy (which i did not realise had been put into my contract)to screw me out of over £500 - I am a good tenant, have paid all my rent and bills on time for a year and have passed all house inspections. I was sent a letter in advance of renewing the tenancy advising of contract renewal fees of £100 which I agreed to. Then they stalled on the contract signing, went quiet and came back to me 1 week before the contract ended having increased the fees to £500 with unnecessary credit checks. Obviously I was unable to find a new place to live and move there in less than a week (as I work full time) and was advised that legally I could refuse to pay the fees, and continue paying my rent which would buy me 2 months to find a new home. But I have just found out that they served this notice as part of my contract a year ago so my options are now either - pay £500 to a scumbag agency for nothing to change, or pay the court costs (which I am told could be hundreds) to buy myself a few weeks while the eviction goes through the court, and then find somewhere and pay new agency fees elsewhere...you shouldn't discuss tenants with such disrespect as many are honest loyal people who pay their bills as a priority - it is landlord/agency practices like this which create an atmosphere of 'us against them' with tenants being badly treated - please remember that your tenants are paying your mortgage and getting very little in return.

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The Landlord Avatar
The Landlord 30th July, 2014 @ 18:53

@Jan

I sympathise with your situation, and it sounds like you didn't deserve that at all. But what you're talking about are the actions of lousy a letting agent. It's not actually about the practise of serving a section 21 notice.

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SectionMePlease 28th October, 2014 @ 12:04

Isn't there a separate format for issuing a section 21 during a fixed term and then a different format during the periodic state of a contract? Therefore do you have to re-issue when requesting possession when the contract falls into a periodic state and if so when?

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Lawrence 2nd November, 2014 @ 20:26

Hi there

Regarding serving section 21, does the tenant agreement need to be the HMSO Assured Shortold Tennacy or will a private agreement still stand in court with a court possession order?

Your comments appreciated.

Thanks
Risk

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Lou Lou 13th December, 2014 @ 23:03

If a landlord served a section 8 notice then applied to court to get possession how come he is allowed to apply for a section 8 if he did not safeguard the deposit within 30 days . And how come when he goes to court two weeks will be given until u have to get out from the date the notice served to eviction has only been 6 weeks , not enough time to save deposits and rent . !!!!
He broke the law and I lost my job hence the areas is this really fare ? I have a pet and myself and no family and council want re home due to rent arrears the company I worked for went bankrupt owing me £13,000 !!!! How is this all fare !!
Landlord has harassed me not done repairs not had heating for 3 cold months and they rent was way over priced for the area .

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Jim 27th January, 2015 @ 13:24

From the tenant's point of view this is really bad practice. By giving s21 at the beginning of a tenancy agreement, the tenant has no way of knowing whether his tenancy will actually end at the end of the fixed term. A week before the tenancy ends, it could either continue, or not. In this way, the "2 months notice" of the s21 actually becomes no notice at all. As others have said, this is morally corrupt and an awful way to do business.

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beverly 26th June, 2015 @ 17:34

well well well. So this is how landlords think about tenants and disrespect their rights and dignity. But you don't understand how important it is that you treat them right and converse about them and to them calmly, with sympathy (not arrogance), but first try to listen and respect their situation.
see it from their angle. you have managed to get more than one mortgage or house and they helping you pay for the mortgage of the place what you own, So obviously they don't have a mortgage themselves because they wouldn't be living in rented accommodation. So they have many reason for lanlords to look upto them and try not to turf them out asap when they have money problems.
But think about if a tenant was allowed to stay for a long time duration of about 10 years @ £900 a month (900x12)x10=£108000, that is a good amount off your mortgage. and what do they get from doing that? of course get called a "clumsy, slow-witted, non-paying buffoon" but a disgusting cowboy of a landlord.
Im not saying someone would want to live for 10 years under poor conditions and a harassing arrogant landlord like someone you all know now.
but if a tenant needed to live in one place so tier children can go to same school because their parents didn't need to keep moving from place to place.
This is where good old clever and human like descent landlords would find a way to do a deal and keep them there by taking the money they had saved for the rent,as much as they can for one month they are short of money, then be patient to understand they can pay extra rent when they get back on their feet. this has happened many time in the past for myself when i have been renting and it all worked out in the end.
i got to say as a landlord i prefer to have lha or dss tenants as they can always be sure of paying rent and having it directly to me from the LHA. once I had less rent from dss going directly. but in total in added up to £148 of arears and i dont car about that as the tenants are still paying off my electric bill i ran up when i lived there as the meter is rigged to pay off mine using thier money. and of course all tenants pay off my coucil tax aswell my mortgages i have and i dont have to do shit to earn money now :)

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Anon 17th September, 2015 @ 18:01

you landlords make me sick, making money off property like this. what a bunch of lazy cunts

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SheLandlord 20th September, 2015 @ 16:50

Anon I can see why you would say that having read the posts above but we are not all like that some of us really do respect our tenants, take care of our properties and are fair with our rents.

Most of us have also worked hard to earn the money to put down a deposit on our rental properties and to get them ready to rent and often furnished etc. we have invested for our future rather than spend our earnings on other things as many people do. We are not lazy, far from it, many of us do our own maintenance and cleaning as well as managing our tenants while we are working full time in our "day jobs". We do this because we do not make enough profit to pay for those services after paying the mortgage and other overheads.

beverly, You do know that it is illegal to charge tenants for utilities that they have not used? You talk about respecting tenants then rip them off!

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susan 10th January, 2016 @ 17:51

i signed a tennancy agreement in 5th april 2007 paid a deposit in june 2015 we had to sign a new tennancy which included in the tennancy was a s21 notice which was never discussed with us when signing the deposit was then placed in the scheme & today i was just issued with a another s21 but it includes the date in june i signed the tennancy not todays day. any advice would be apprecieted

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Steven 16th March, 2016 @ 16:35

Well most of the comments, and especially the slimy article, reinforce my already dire opinions about the types of "humans" (I use the term loosely) that tenants have to deal with while handing over their dignity and half their yearly wage for a shithole with a 20 year old boiler. You really are superior aren't you? Because mummy left you two houses... A handful pointed out that S21s are a little heavy handed, but most of you genuinely consider yourselves to be the "victims", like entitled schoolgirls who cannot have a pony for their birthday. And your lack of empathy or any sense of equity blinds you to the transient nature of your tenant's life-course or economic security. My girlfriend's landlord will be losing 2 amazing tenants, European students who both pay 12 months rent up front, simply because he would rather use an s21 (as a formality *spit) than talk through an non-issue 6 months away like a reasonable adult. And for what? Who can hope to find a 3rd housemate, to sign a contract for a home 6 months away, in 8 days? The situation is self-defeating for the landlord himself. I wondered how someone could be so financially inept. Now I know, ignorance and hubris.

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Mobin 20th September, 2016 @ 09:50

Hello. I just wanted to know can I serve the section 21 notice to my tenant I have not taken A deposit when the tenancy agreement was agreed and it clearly states this in the agreement.

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Tom 29th September, 2016 @ 21:41

Good evening mate, I've almost secured my first BLT property and i'm finding this website not only invaluable but funny as f**k.

This blog post was updated with "..October 2015.."; as the rules have changed, would you still advise serving a section 21 notice 4 months in as a way to protect your investment. Or would you "play it by ear" depending on your tenant?

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The Landlord Avatar
The Landlord 1st October, 2016 @ 07:57

Hi Tom,

Awesome, glad it's been useful for you.

Hmm I would just give a 6 months tenancy, and then play it by ear, to be honest.

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joseph 23rd November, 2016 @ 15:05

question, have served a section 21, court forms have gone in. as i am aware that some get thrown straight out of court can i serve another section 21 just in case this happens to me? dont want to have to lose another month. if i can serve again would it have any effect on the whole situation, hoping for advice please

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