I have a tenant who has chucked out her other half, and is now insisting on a new AST in her own name. Should I issue a S21 notice tot stop the existing AST (in joint names) in its tracks, followed by a substitute AST in her own name? or would the new AST cancel out that S21 notice? Also would a new S21 notice still be required against the new AST so that the names are uniquely matched, or would the first S21 notice still hold, as she is both the old and the new tenant?
Start from first principles. On what did did the old AST begin and what was it fixed term? If the term is still running, the 'occupying' T alone cannot end it- she would need the 'departed' T to join in doing that. and, as you know, you as L cannot obtain s.21 possession during the fixed term either.
The original fixed term AST for this couple ran from 2 Aug 2008- 1 Aug 2009, 2nd fixed term AST 2/8/2009 - 1/8/2010, 3rd fixed term AST 2/8/2010 - 1/8/2011 which then went periodic as forgot to renew it in August, then the current Fixed term AST runs from 2/10/2011 - 1/10/2012. The "Lead tenant" has now vacated and the remaining T has already given him back his share of the deposit! I am not requiring immediate possession: I simply want the correct S21 to have been served so that if in the next 2-3 months T finds difficulty meeting her commitments she can be quickly and formally be moved on.
I have a separate argument with the DPS who are stipulating they have to pay out the deposit to the departed lead T, even though he has already received his take. Is it reasonable to insist the remaining T's deposit is transferred to her own name,?
OK. So you can serve a Notice under s.21(1)(b) now, before 1 October. Address it to them both- they remain joint tenants, despite one having gone away. It has to run for at least two months, even though that will take you beyond the term expiry date of 1 October.
It sounds reasonable, but you'll need to be guided by- and to comply with- DPS stipulations. For instance, perhaps written evidence from the T who stayed that she's refunded him his half might allow DPS to refund her half to her alone.
OK can do. But going back to the original question whereby remaining T wants a new AST in her name only - to aid her benefit claims - would that new AST countermand the S21 and would I then need to issue a further s21 notice as well in her own name?
Look- no new AST (sole name) can begin whilst old AST (joint names) is running. When old AST (joint names) ends, any s.21 Notice served in connection with it becomes spent. Once new AST (sole name) has started, you can serve sole T with a new s.21(1)(b) Notice.
Absolutely. The new AST in sole name will begin on 2 October 2012 for 12 months and I intend to shorten the break - clause to 2 months. The s.21(1)(b) Notice will be served immediately after the new AST is issued ie on or after 2 October. Therefore the earliest time the S21 notice becomes "live" is 2 months later meaning I could theoretically start repossession proceedings from 2 December or thereabouts. As I have a good relationship with existing T I don't imagine actually going to court over it but the documentation is what I needed to have in place as she will be very much in the hands of the benefit agencies et al, Funnily enough my local pet estate agent thinks she will be better off than all of us as she will now be eligible for multiple additional benefits - once that key new AST in sole name gets issued on 2 October! Many thanks for your guidance. Please feel free to add if I have missed anything
Problem: the six-month rule. Here's s.21(5) et seq, with my underlining: (5) Where an order for possession under subsection (1) or (4) above is made in relation to a dwelling-house let on a tenancy to which section 19A above applies, the order may not be made so as to take effect earlier than: (a) in the case of a tenancy which is not a replacement tenancy, six months after the beginning of the tenancy, and (b) in the case of a replacement tenancy, six months after the beginning of the original tenancy. (5A) Subsection (5) above does not apply to an assured shorthold tenancy to which section 20B (demoted assured shorthold tenancies) applies. (6) In subsection (5)(b) above, the reference to the original tenancy is: (a) where the replacement tenancy came into being on the coming to an end of a tenancy which was not a replacement tenancy, to the immediately preceding tenancy, and (b) where there have been successive replacement tenancies, to the tenancy immediately preceding the first in the succession of replacement tenancies. (7) For the purposes of this section, a replacement tenancy is a tenancy: (a) which comes into being on the coming to an end of an assured shorthold tenancy, and (b) under which, on its coming into being: (i) the landlord and tenant are the same as under the earlier tenancy as at its coming to an end, and (ii) the premises let are the same or substantially the same as those let under the earlier tenancy as at that time. Here. sole-name T will not be 'the same' as T under the earlier tenancy, so not until 2 April 2013 could you obtain s.21 possession
Thanks again. Glad I asked. Is there any reason why I should not put the 2-month break clause in the new AST. I then would not be looking to the S21 notice as a reason to move T on but upon our mutual respect. The S21 would still be in place for 2 April if the authorities were to muscle-in....
Yes, there's a reason- under s.5(2) [see 'sticky' thread for text]. L cannot use a break clause to end the AST. Trying to do merely causes an SPT to begin.
So it's done. 1) S21(1)(b) Notice served on T (Joint names) to end existing contract (AST End date + 2 months). 2) Deposit released from DPS Back to L by imposing 100% charges as authorised by old Leading T. 3) New AST for 6 months Issued to T, Single name, starting on existing rent date 4) Deposit re-protected under T - sole name in DPS 5) Deposit confirmation from DPS to T & L. 6) New Deposit Prescribed Information document Issued to T. 7) New S21(1)(b) Notice served on T - Sole name. Conclusion: T stays on for limited period, subject to review; rental income uninterrupted - no void period. Many thanks for your guidance Regards
