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Question

Landlord Wants Tenant to Leave (England) | Retaliatory Evictions (England) | Types of Tenancies (England)

Can I serve a Section 21 while the tenant can’t reside in the house because of rebuilding work?F

17 Nov 2017 | 14 comments

Can you advise me on my situation? I made a mutual agreement with my AST tenant to vacate my house temporarily for 3-4 months during rebuilding in lieu of rent, and he agreed. But while he was away, I was given serious information about him that led me to give him two months’ notice by serving a Section 21 (it’s a periodic tenancy). Now he and his lawyer are claiming that the S21 is invalid because he couldn’t reside in the house during the notice period. In addition, he now claims the mutual agreement to vacate the house temporarily was a trick to get him out, and says I should have provided alternative accommodation. So now he’s threatening to sue me for forced eviction and demanding 5,000 compensation.
Can you tell me: is he right that a section 21 is invalid if the tenant is not able to reside in the property during the notice period?
Also, does a mutual agreement that a tenant can return after rebuilding work become a form of forced eviction if, because of subsequent unforeseen developments, I give him notice to quit and so don’t let him return after all, as he claims?
Thanks for any help on this. I have no experience with this so am very grateful for advice.

Answer

14 Comments

  1. guildy

    The first thing is that you absolutely must let the person back in once the 3 – 4 months is up and the works completed. You must ensure the works are completed within the time-scale promised because delays to the work could be seen as an attempt to evict without a court order. The point is, it must all be genuine throughout. You will need to obtain a court order to evict.

    It’s a little tricky this one because of the length of time the works are taking (compare for example with simply moving out for a week whilst a leak is repaired).

    Basically, as long as the property remains the tenants only or principal home throughout, they remain an assured shorthold tenant. Compare this with a person who works on submarines (we have a number of clients who rent to people working on a submarine base). They will go to sea for 6 months at a time yet they remain tenants of the property. The question is not whether they are living there but whether there is an intention to return within a reasonable period. In your case, there is an intention to return (and when the works are completed is the reasonable period).

    If you indicate at anytime they cannot return, that will be an unlawful eviction.

    In our view, serving a section 21 during the works is not a problem but in fact the correct procedure because they are an assured shorthold tenant.

    The problem that could arise is due to the length of the works. It could be argued wherever they are living currently is their principal home and not your property. If that were the case, the notice would be wrong. However, we don’t think that is the position and we think they remain an assured shorthold tenant – this also gives them the highest security so it’s best for you to agree they are an assured shorthold tenant (which you are agreeing by the fact you served a section 21).

    The crucial thing is to get the works done on time and let them back in. That will be absolute proof that they continued to have an intention to return and in fact they did return. Then when you continue the proceedings it will be greater chance of success.

    We only mention because you are new to this: in addition to the above, any deposit must have been protected and prescribed information given within 30 days for the section 21 to be valid (if a deposit was received). Also, if the tenancy (or renewal) was on or after 1 October 2015, you must have also given the tenant a copy of the energy performance certificate, gas safety record and how to rent guide in order for the section 21 to be valid. Further for tenancies from this date, a new prescribed section 21 notice must be used. If any of these weren’t done, we would let the person back in, correct any errors and then serve a new section 21.

  2. RonaldC

    Thanks so much for this advice, I had no idea about these concerns. But I’m afraid I don’t exactly follow everything: if the Section 21 is correctly served even though issued during the building work, why do I have to let the tenant back in after the work is done? Or do you mean that I should count the two months notice from the day I let him back in? Or should I serve a new Section 21 on the day he returns?
    About the building work, I think it will be 4.5 months in fact, a delay of at least 2-3 weeks, but I don’t see why this would be a problem, since it’s beyond my control. Is there something I should do to alleviate a risk of action against me on that count?
    I don’t know if this would be a better solution, but he owes 5 months rent, so is it better if I serve a Section 8 order? Would that also require me to let him return? I was told by other tenants that his behaviour is abusive and they asked me to remove him (I heard this after the building work started), so would it be better for me to use those grounds?
    Thanks so much for all your advice, including about the certificates, which again I didn’t know.

  3. guildy

    Our theory was that if your notice is invalid anyway (which it sounds like it probably is from your reply), you may as well start again.

    By waiting to let them in when the works are complete then serving a new notice after correcting any errors means you get rid of the argument about whether you can serve whilst he’s not living there. What’s the point having the argument if it can be avoided?

    We are worried that you would likely need a solicitor to represent you due to the complications and that could end up costing more than the compensation they are claiming if you proceed with the current position.

    Also by letting them in proves you weren’t trying to evict without following the correct process.

    In respect of the rent arrears, presumably you’re not charging rent whilst they aren’t in the property. We would suggest you sue them separately from any arrears given that they will probably say they don’t owe as much due to the ongoing repairs. That way, you can argue as long as necessary and it won’t affect the possession claim.

    It is imperative that you let them back in at the earliest opportunity and indicate that you will do so. This will help to avoid any claim for compensation for unlawful eviction.

  4. RonaldC

    Thanks very much. Can I ask practically how to do this? If I let the tenant back in the house once the building work is finished (in a month from now), how do I make his time there as short as possible, since the other tenants won’t live with him, or only very reluctantly? I think the current s21 is valid (his deposit is protected and his tenancy began before Oct 2015), so can you tell me whether (a) I could just write and tell him I will extend the notice on the current s21 from two months to four months, so he could move back to the house in one month and reside in the house for a further month? Or whether (b) I tell him I now withdraw the existing s21, let him return to the house in one month’s time, but at the same time serve a new s21 now giving him 2 months notice, so he returns in one month and then remains in the house for just one month more? Or, at worst, whether (c) I should withdraw the s21 now and let him move back in one month, and then serve a new s21 on the day he moves back?

  5. guildy

    Although we prefer questions here as we can answer them as and when, we think best give us a call tomorrow as this is getting complicated and we seem to be going in circles a little!

    Please give us a call on 01423873399.

  6. RonaldC

    Thanks for all your help on this – extremely helpful. I’ve clarified to the tenant that, as in our original agreement, once the main building work is done, he is completely free to return to the house, should he wish to do so during the process initiated by the Section 21.
    You identified a major new problem: since this is a joint tenancy, a section 21 issued to one tenant is invalid. I had not read that anywhere till you told me. Now it seems from what you said that I have to issue a new section 21 to all of them.
    Before doing that, can I ask one other query: can I still use Section 21 if the original joint Tenancy Agreement (2009 for one year) has been modified by successive Deeds of Assignment replacing old tenants with new ones (in 2011 and in Sept 2015)? Or does modification by a Deed of Assignment change an AST into a different kind of tenancy?
    Thanks for all your help with this.

    • guildy

      We’re not a fan of deed of assignments for this reason – it’s unclear what has happened. An assignment is where there may be a fixed term of say one year then, after 3 months, somebody may want to take over the remainder of the term i.e. the remaining 9 months. This remaining term can be assigned to somebody else and they continue with the rest of the term. It doesn’t change the status of the tenancy so as long as it’s their only or principal home and they are individuals (not a company) it will be an AST.

      The problem with this method is if it’s assigned during periodic, there was nothing to assign as there was no term left. A new tenancy would have been far better at each change of tenants.

      However it was done, they are assured shorthold tenants because it’s possible to have a verbal tenancy so even if the assignment didn’t work as expected, they have a verbal tenancy at worst. This means section 21 and the process is still available. Because of the complexity, it may be worth considering the standard procedure instead of accelerated procedure (there isn’t much difference in time in reality but a hearing is always required with the standard procedure).

  7. RonaldC

    Can I ask about an alternative solution that has just occurred to me: there are three good tenants in this AST who asked me (confidentially) to evict their friend, the fourth tenant, who is objecting. Since this is a joint tenancy, would it be a better solution for one of the “good” tenants to give one month’s notice? Then, if I have understood correctly, the “bad” tenant would not have rights to remain. Would that be a better solution than issuing a new Section 21 or 8,and would I then be able to get possession?

  8. guildy

    Where one tenant gives notice during periodic, that is effective to bring the whole tenancy to an end. However, the end result is virtually the same because a court order would then be required and ultimately bailiff. The other problem is that obtaining a court order is much more complex because it’s not very common so a lot of explaining to the court would be needed.

    Although it’s possible for a landlord to collude with a tenant to give a notice to quit for themselves, we suspect the collusion could be an offence where the purpose of the notice is to evict somebody else especially if there is no intention for the person giving the notice to ever vacate. This situation is as yet untested to our knowledge.

  9. RonaldC

    Dear GRL, one of my “good” tenants told me she refuses to live in the house any more while the “bad” tenant remains there and is leaving, so I asked her to use your Tenant’s Notice to Quit form for one month on a last day of a rental period, which is Jan 1 (although our tenancy agreement says min 60 days, but I think a tenant on monthly payments can insist on a minimum of 1 month). I think this can’t be collusion, as she already decided to leave. She has done this, so now I have issued a Landlord’s Notice to Quit to the remaining joint tenants with the same 30 days notice as hers (Jan 1). I ‘hope this will undermine or end the “bad” tenants claim for compensation because of my previous Section 21 issued during his temporary absence for the rebuilding. I told him, as you advised, that he has the right to return to the house on Dec 15th when the building is mostly done, but have now said that on Jan 1 the tenancy will end anyway, so he’ll only get two weeks there. Can you tell me, do I have to notify him that the original Section 21 is withdrawn (I guess it was invalid anyway, because it didn’t name all the joint tenants)? And can you tell me how I serve my Notice to Quit on him, since I only have his email now and don’t know his current address? Can I use the rented house address, his last known address, that he has so far refused to vacate (but isn’t staying at now)? Thanks so much.

  10. guildy

    Working on the assumption that the tenancy is continuing as his principal home, a notice to quit to him is not suitable. The only suitable notice would be a section 21 (but this time addressed to all tenants). This should be served at the tenancy address by following our wizard but you could also serve it by any other means possible to cover all bases (any other address known and by email).

    You are correct that a notice from a tenant is sufficient to end the tenancy for all of them after which you can obtain a court order based on the tenants notice to you.

    However, we don’t know the answer to the point about whether a tenancy clause can increase the required length from one month to 60 days as per your tenancy. Our view is that it’s an unfair term but as yet it’s untested by a court of record (so binding) to our knowledge. It will certainly be interesting if you get to a point where you will have to argue that a term you inserted voluntarily is an unfair term and unenforceable! To keep things simple, we believe you would be safer avoiding the argument altogether and get a notice to quit from the tenant that meets the requirements of the tenancy (i.e. 60 days) and it must also expire the day before the rent is due (after 60 days). The alternative is to argue that your term requiring 60 days is an unlawful term and contrary to the Consumer Rights Act 2015.

  11. RonaldC

    Thanks. I thought that, where a joint tenant has given one month’s valid notice to quit, then the tenancy ceases to exist for any remaining joint tenant on the day her notice expires, ie., in one month. If I use a section 21 for the other joint tenants, as you suggest, it would give them two months. And since it isn’t a notice to quit, they would not become trespassers or common-law occupiers (or whatever the term is) after it expires. So I used the Landlord’s Notice to Quit. Is that wrong? If so, can I just withdraw it? And what procedure should I use to inform them that their joint tenancy ends in one month, on the day her notice ends? Thanks.

  12. guildy

    A notice to quit of one month is normally valid but not necessarily if you have a term in the tenancy requiring 60 days notice. See our previous reply.

    It was wrong for you to use a notice to quit to the tenants because you can’t use that notice on an assured shorthold tenancy. No need to withdraw it as it’s invalid anyway.

    You should follow our previous reply and serve a section 21 on all tenants plus obtain a notice from the tenant of at least 60 days.

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