Tenants have notified me of wish to end tenancy. Is S21 required?

#1
I have rented a flat to a couple who have decided to separate. The lead tenant has left the property and is living elsewhere. There is not much hope that they will get back together.

I have received emails from both tenants saying that one tenant has left.

The remaining tenant wishes to continue living at the property under a new lease but unfortunately does not pass the credit check and I will not offer a new tenancy.

The AST (which was fixed term and is now periodic) states that the notice period is at least two months and must end on the last day of a rental period. the end of the tenancy is therefore 31st January 2017.

Should I issue an S21 notice just in case the remaining tenant does not leave at the end of the tenancy or would I be able to go straight to N5 at the end of the tenancy because the tenants initiated the end of the agreement?
 

Amy C

New Member
#2
I would serve a section 21 to protect yourself - you cannot proceed to the N5 without first serving a section 21. If your tenancy started before October 2015 then make sure all new regulations are adhered to. If it started prior, make sure deposit protected and prescribed information served.

In relation to the notice, make sure you serve it in line with the tenancy agreement. If there is no mention of delivery of notices in the tenancy agreement, then have a look at section 196 Law of Property Act.

Any other questions, please do ask.
 

Jeffrey Shaw

Member
Staff member
#3
Since the fixed term ended and the AST is a Statutory Periodic Tenancy, either of the original tenant could end it.
All rights under it are joint- so serve the Notice on them both.
 
#4
Hi,

S21 expires in five days time on 31st January 2017.
Even though the tenants initiated the end of tenancy, one of the tenants has refused to move out and is waiting for the LA to re-house her and her child.

Is the LA responsible for re-housing people who have deliberately made themselves homeless by ending a tenancy?

Access to the property is through a secure communal area which is serviced and maintained by me. Am I allowed to change the outdoor locks into the secure area?
 

Jeffrey Shaw

Member
Staff member
#5
S21 expires in five days time on 31st January 2017.
Even though the tenants initiated the end of tenancy, one of the tenants has refused to move out and is waiting for the LA to re-house her and her child.

Is the LA responsible for re-housing people who have deliberately made themselves homeless by ending a tenancy?
No- unless they (the LA) have surplus housing available for non-priority cases.

Access to the property is through a secure communal area which is serviced and maintained by me. Am I allowed to change the outdoor locks into the secure area?
No. That would be harassment, a criminal offence on your part- don't do it, no matter how annoyed you feel.
 
#6
S21 Notice expired on 31st January 2017
Tenant has not vacated the property.
Is the next step to apply to the courts for possession using form N5B? There does not seem to be a section to fill in covering "The Tenant has given notice, which has now expired but has not vacated the premises".
Is there a separate process for this situation.
 

Jeffrey Shaw

Member
Staff member
#7
By definition, T has ended his own tenancy (by notice); so thereafter he becomes nothing more than a trespasser.
Maybe there's a different Court form for use in such cases.

It might even be possible to claim double rent. See the ancient (but still in force) Landlord sand Tenant Act 1730- yes, really- of which section 1 reads as follows:

Persons holding over Lands, &c. after Expiration of Leases, to pay double the yearly Value.

In case any Tenant or Tenants for any Term of Life, Lives or Years, or other Person or Persons, who are or shall come into Possession of any Lands, Tenements or Hereditaments, by, from or under, or by Collusion with such Tenant or Tenants, shall wilfully hold over any Lands, Tenements or Hereditaments, after the Determination of such Term or Terms, and after Demand made, and Notice in Writing given, for delivering the Possession thereof, by his or their Landlords or Lessors, or the Person or Persons to whom the Remainder or Reversion of such Lands, Tenements or Hereditaments shall belong, his or their Agent or Agents thereunto lawfully authorized; then and in such Case such Person or Persons so holding over, shall, for and during the Time he, she and they shall so hold over, or keep the Person or Persons intitled, out of Possession of the said Lands, Tenements, and Hereditaments, as aforesaid, pay to the Person or Persons so kept out of Possession, their Executors, Administrators or Assigns, at the Rate of double the yearly Value of the Lands, Tenements and Hereditaments so detained, for so long time as the same are detained, to be recovered in any of his Majesty’s Courts of Record, by Action of Debt,

What does all that mean? Well, I can summarise it thus:
If a tenant holds-over after his lease expires and after the landlord has in writing demanded possession, the tenant has to pay double the yearly rent until he gives vacant possession.
 
#8
In the context of a residential building is there a difference between a trespasser and a squatter?

My understanding from Section 144 of Legal Aid, Sentencing and Punishment of Offenders Act 2012 is that the former tenant is not a squatter because they were previously entitled to live at the property and are still living there in a contiguous time.

144 Offence of squatting in a residential building
(1) A person commits an offence if—
(a) the person is in a residential building as a trespasser having entered it as a trespasser,​
(b) the person knows or ought to know that he or she is a trespasser, and​
(c) the person is living in the building or intends to live there for any period.​
(2) The offence is not committed by a person holding over after the end of a lease or licence (even if the person leaves and re-enters the building)
 
#9
I should add that the tenant has transferred the equivalent of 1 month rent into the landlord's bank account although no request to do so was given to the tenant.
 
#10
The CPS gives some guidance on the definition of a trespasser in http://www.cps.gov.uk/legal/s_to_u/trespass_and_nuisance_on_land/#a11
Meaning of Trespasser
A person can only commit the offence if they have entered and remain in the residential building as a trespasser. Any intentional, reckless or negligent entry into a building will constitute trespass (see Archbold 21-116 2012). This means the offence will not apply to a person who entered the building with permission of the property owner, such as a legitimate tenant. This is so even if a legitimate tenant subsequently falls behind with rent payments or decides to withhold rent. Such a person is not a trespasser for the purposes of this offence. A property owner would be expected to pursue established eviction processes in the civil courts if they wanted to regain possession of their property in such circumstances.

So it does seem that Form N5B is the only way, but I am still unsure how to inform the court that the tenant ended the agreement.
 

Jeffrey Shaw

Member
Staff member
#11
In the context of a residential building is there a difference between a trespasser and a squatter?

My understanding from Section 144 of Legal Aid, Sentencing and Punishment of Offenders Act 2012 is that the former tenant is not a squatter because they were previously entitled to live at the property and are still living there in a contiguous time.

144 Offence of squatting in a residential building
(1) A person commits an offence if—
(a) the person is in a residential building as a trespasser having entered it as a trespasser,​
(b) the person knows or ought to know that he or she is a trespasser, and​
(c) the person is living in the building or intends to live there for any period.​
(2) The offence is not committed by a person holding over after the end of a lease or licence (even if the person leaves and re-enters the building)
That provision seems targeted at squatting which is a potentially criminal offence.

Trespassing is, on the other hand, a civil wrong ('tort').
One cannot be prosecuted for trespassing, no matter what the commonplace phrase says.
"Trespassers will be sued" doesn't have the same ring to it, I suspect!
 

Jeffrey Shaw

Member
Staff member
#12
I should add that the tenant has transferred the equivalent of 1 month rent into the landlord's bank account although no request to do so was given to the tenant.
If L accepts it, he inadvertently creates a new letting!
To avoid this result would require L to reject and return the funds immediately on receiving them.
 
#13
Despite several requests the tenant has not supplied her bank account details to reverse the payment. I emailed the tenant stating that if she did not provide the requested bank details within 14 days then the landlord would consider the transfer as a gift and it could not be construed that the money was rent.
On the 1st March the tenant made a second payment into the landlord's bank account; again equivalent to one month's rent that would have been payable under the previous tenancy agreement. What more can I do to avoid the implication of a new letting?

The Court has issued an Order for Possession.
The court aw2arded possession of the property by 7th March 2017 and costs of the £355 court fee to be paid by 7th March 2017 but did not award either of
a) legal administration fees of £180
Although the landlord has not used the services of a solicitor in the preparation of the court documents the court has always awarded legal administration fees in previous applications.

b) rent for the duration of the occupancy after the tenancy expired on 31st January 2017
In the Request for Order of Possession, the landlord referred to The Landlord and Tenant Act - 1730, which you referred to in a previous post.

The landlord has applied for a variance to the Order for Possession to include both these costs, but has not had a response from the court yet.
Does applying for a variance to the order automatically extend the original expiry date on the Order for Possession?

The expiry date on the Order for Possession has now expired and I received an email from the tenant that she had not left the property as she was waiting for the council to re-house her. The council is aware that it was the tenants that terminated the original tenancy.

Section 4 on Request for Warrant of Possession of Land there are fields for
(A) Balance Due at the date of this request
(B) Amount for which warrant to issue

Should (A) include the costs applied for in the variance?
Should (B) include allowances for the two transfers made by the tenant into the landlord's bank account?
 

Jeffrey Shaw

Member
Staff member
#14
Despite several requests the tenant has not supplied her bank account details to reverse the payment. I emailed the tenant stating that if she did not provide the requested bank details within 14 days then the landlord would consider the transfer as a gift and it could not be construed that the money was rent.
On the 1st March the tenant made a second payment into the landlord's bank account; again equivalent to one month's rent that would have been payable under the previous tenancy agreement. What more can I do to avoid the implication of a new letting?
The only option (rather drastic) would be close-down the account into which the unwanted payments keep arriving.
(As to your other questions, they'd need a litigation solicitor's views; and I don't know enough to reply; sorry.)
 
#15
The only option (rather drastic) would be close-down the account into which the unwanted payments keep arriving.
(As to your other questions, they'd need a litigation solicitor's views; and I don't know enough to reply; sorry.)
Unfortunately, it is a business account and closing it down would inconvenience a number of other tenants and organisations.