Section 21 Notice after terminating lease with estate agent

Discussion in 'Residential Letting Questions' started by dave103, Nov 18, 2016.

  1. dave103 New Member

    Dear Colleagues

    If I have leased a property to an estate agent ( starting the 22nd September 2015 ) and then the lease was terminated in March 2016, and I want to start the process to evict the the estate agent and sub-tenants who occupy the property - can you please tell me:

    1) Do I have to use the old section 21 notice as the lease started before October 2015, or do I use the new section 21 notice as the lease terminated on March 2016 ( after October 2015 )?.

    2) Is it the fixed term section 21 notice or periodic section 21 notice I serve on the estate agent ?.

    I have scanned and uploaded the lease agreement with the estate agent that was terminated in March 2016.

    Any advice is much appreciated.

    Thanks

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  2. Amy C New Member

    Hello Dave,

    It is the old style notice. In relation to which notice, if the tenancy agreement mentions that at the end of the contractual term it will then be a statutory periodic you need to use the (4). If there is no mention then you can use 1(b). I would play it safe and use (4) and have the notice expire at the end of a periodic tenancy.
  3. Jeffrey Shaw Member

    NO.
    A letting to EA is not within the Housing Act 1988 at all (unless EA in person has an only or principal home at the let property).
    Sub-T's tenancy, created by EA, might be within the Act. But your letting to EA isn't; so it's governed by only common-law contractual rules.
    Use a precedent non-statutory Notice To Quit. Serve it on EA only.
  4. Amy C New Member

    Apologies my fault - I am sure we discussed this Dave when we spoke on the phone. Jeffrey is absolutely right and thanks for correcting.
  5. dave103 New Member

    Dear Jeffrey,

    Thank you for your response and much appreciated.

    1)Is there a site where I can obtain a ‘non-statutory’ notice to quit and how much notice will I have to give the EA in the NTQ?.
    2)If the EA does not remove the occupants in the flat, do I start eviction proceedings in the normal way against EA ?.
    3)The sub-T's were put in to the flat by estate agent 2 (EA2) ( the sub-T's tenancy was created by EA2 and not EA ). Will the Court grant a possession order against EA ?. ( or if my lease agreement with EA provides that there is privity of estate between EA and the sub-T's, is a possession order more likely to be granted ? ).


    Thank you.
    Dave
  6. Jeffrey Shaw Member

    1. I don't know re websites. You're looking for a common-law Notice To Quit, remember, not a statutory form. The fixed term ended immediately after 21 September 2016. NO continuation rights apply. If the letting continues thereafter, it must be a monthly common-law letting; so give (by Recorded Delivery) at least one month's Notice to EA. This should ideally end immediately after 21st of a month. A NtQ today [8 December] would therefore run up to & inc. 21 January 2017.

    2. Yes. The occupants are not your tenants; it's for EA to terminate their rights.

    3. Your NtQ is served on whoever is your own tenant: presumably EA, rather than EA2.

    But please be aware that online Forum advice is inevitably based on only what you post! If you rely on just this instead of proper paid-for legal advice, you might come a cropper..
  7. dave103 New Member

    Dear Jeffrey,

    Thank you for your reply.
    I have already terminated the lease inside the fixed term by serving a notice ( but not an NTQ ) which terminated the lease on 25th March 2016 ( clause 1 on page 1 allowed me to do this ). So the lease started on the 22nd September 2015 and terminated on the 25th March 2016.
    If I serve a one month NTQ on EA , does this mean the period of the periodic tenancy begins on the 26th March 2016 and finishes on the 25th March April 2016 ?.
    Therefore if I serve an NTQ, EA must receive it for at least one month, with the end of the period expiring on the 25th day of the next month ?.
    ( just want to make sure I get the dates right ).
    Thanks,

    Dave
  8. Jeffrey Shaw Member

    1. Look at the definition of "the Term". It would have ended in September 2016. Your NTQ ended it early, as was your right.
    2. So- after the NTQ came into force- the original Letting was finished for all purposes.
    3. You already know that- being outside the Act- it did not involve any statutory continuation rights.
    4. If T continued to pay rent, that is therefore not referrable to the original Letting but must be a brand-new monthly contractual tenancy.
    5. This new tenancy runs 26th-25th of each calendar month.
    6. Hence, as I told you, the NTQ period should ideally end immediately after a tenancy month.
    7. A NtQ today [14 December] would therefore run up to & inc. 25 January 2017. Legally, it expires just a millisecond "after" the last day ends.
  9. dave103 New Member

    Dear Jeffrey,

    Thank you for your reply.
    1) Are you saying that the lease has been effectively terminated by my notice below ? ( pic attached below ).

    2) In order to commence eviction, I will now have to serve a 'Notice to Quit' ( under the prescribed information regulations 1988 ) to end the new 'monthly contractual tenancy'?.

    Thank you.
    [IMG]
  10. Jeffrey Shaw Member

    Yes and yes (respectively). You seem slightly surprised that your Notice To Quit did what it says!
  11. dave103 New Member

    Jeffrey, thank you for your reply.

    My worry is, if I start eviction proceedings against the first estate agent - there's a likelihood of not securing a possession order against the tenants - because there is no contract between the first estate agent and the tenants.

    Do you think the safer alternative is to get the second estate agent to start eviction proceedings against the tenants as they have a direct contract with the tenants ? (hence I'm more likely to get a possession order).
  12. Jeffrey Shaw Member

    Talking about 'Estate Agents' just confuses the issue.
    You yourself can take proceedings only against your own tenant (T), the person to whom you let the property.
    You yourself cannot take proceedings against T's sub-T. You have no contract with sub-T.
    Even if T let to sub-T without anything in writing, there can still be a contract [orally].
  13. dave103 New Member

    Dear Jeffrey,

    I have requested the second Estate Agent (with whom I do not have a contract ) who placed the Tenants in to my flat, to start eviction proceedings.
    The 'Notice to Quit' served by the second Estate Agent (below) in the first sentence states 'on behalf of your landlord'.
    I wanted to ask ( just to make sure a Judge doesn't throw the case out for technicalities ):
    1) Should the 'on behalf of your landlord' be omitted from the NTQ ? - considering that the second Estate Agent is not my agent ?.
    2) Should the eviction court paperwork name the second Estate Agent as the Claimant ( and not me as the claimant, as I don't have a contract with the tenants ).
    Thank you.

    [IMG]
  14. Jeffrey Shaw Member

    Did 2nd EA act as landlord when letting? If T was led to believe that EA was itself the landlord and nobody else's identity was disclosed to T, EA cannot claim that it's not the landlord ("estoppel").
  15. dave103 New Member

    Dear Jeffrey,

    I think probably safe to assume that the 2nd EA did not act as landlord - as 2nd EA's right of occupation is dependent upon my lease agreement with 1st EA.
    Taking in to account all the circumstances, it appears that the safest option is what you said earlier:
    1) My contract is with the 1st EA. Therefore I should serve an NTQ on the first EA.
    2) In my agreement with the 1st EA, the 1st EA did promise vacant possession after the agreement comes to end. Therefore, if the NTQ expires and the 2nd EA's Tenants have not left, then I will begin eviction proceedings against the 1st EA. If the 2nd EA's right of occupancy is dependent upon the lease agreement ( and hence the 2nd EA's tenants also ), then I should get a possession order from the Judge and subsequent bailiff eviction of the 2nd EA's tenants.
    Can it be argued to the Court that because the 1st EA promised vacant possession in the lease, after termination of the lease, therefore it was contemplated, that any contracts with third parties / agents / sub-T's will be the responsibility of the 1st EA ?.

    Thank you.
  16. Jeffrey Shaw Member

    You do really need a litigation specialist's advice (i.e. not mine).
    But I'd focus on EA1, your tenant. It's EA1's tenancy that you seek to terminate. You do not have a contractual relationship with anyone else, after all.
    Sub-lettings that EA1 has created do not in any way affect EA1's obligation to give you vacant possession.
  17. dave103 New Member

    Thank you Jeffrey.

    The lease with EA1 stipulates that I give 'one months notice' to terminate it, which I did by giving notice ( at post #9 above ).
    It was sent by special delivery to EA1's business address and signed for.
    The notice was signed for by EA1(served) on the 25th February 2016 and the notice stated that the lease terminates on the 25th March 2016.
    Is this sufficient one months notice under the lease to terminate it lawfully ( s196 Law of Property Act 1925 applies to the lease)?.

    Thank you.
  18. Jeffrey Shaw Member

    Yes. No statutory provisions (e.g. continuation of the letting) apply here or over-write the common-law rules for a non-HA 1988 case such as yours.
    You give Notice, it satisfies what the lease stipulates, T receives it, and- hey presto- the lease ends.
  19. dave103 New Member

    Jeffrey Thank you.

    What worries me is, the lease mentions the rent is payable on the first day of every month ( meaning the last day of the rental period is the last day of the previous month ). If the lease mentions one months notice, does my notice to terminate the lease served on the 24th February and stating the last day to be the 25th March lawfully valid ? ( or should the last day be the 31st March ? - the last day of the rental period ).
  20. Jeffrey Shaw Member

    If every month is a new period, each period ends an instant after the month ends (= an instant before the next month begins).
    So a one-month Notice is best expressed as requiring vacant possession "after 30 April" (or whatever).
    In your case, a Notice served on 24 February ought therefore to require possession "after 31 March". I cannot see how '25 March' would be a valid date.

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