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LondonlawyerJ
LondonlawyerJ, Solicitor
Category: Property Law
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Experience:  Experienced solicitor
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We have served notice on one of our tenants, as she is

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We have served notice on one of our tenants, as she is continually late with her rent, does not keep to any payment schedule made and we have to spend a lot of time chasing her every month and can no longer spend the amount of time we are on her tenancy and our landlord would now like her to vacate. Her tenancy commenced on 12th November 2015 on a Six Month Assured Shorthold Tenancy, however rent day was the 1st of each month in advance, thus in effect the end of her Fixed Term would therefore get "moved" to 31st May 2016, as apposed to 12th May 2016.We served notice to her on 5th February 2016, which took effect on 1st April 2016 and expired on 31st May 2016, i.e. the end of her Fixed Term.She is now stating this is not a valid notice as served too early in her tenancy, but am I correct in thinking that just because it was given to her on 5th February, it is not served too early, as it doesn't take effect until 1st April?Can you please clarify this for us.
Submitted: 5 months ago.
Category: Property Law
Expert:  Ash replied 5 months ago.

Hello my name is ***** ***** I will help you.

You can serve it as early as you want. You can serve the notice to quit on the day they move in if you want to.

The Court will only want to make sure that the tenant had at least 2 months notice and that the expiry date is correct.

So it makes no difference whether you serve it on 5h February or wait until 30th March. It is valid.

Can I clarify anything for you about this today please?

Customer: replied 5 months ago.
It states online and she has been told by legal advice she has taken, that any tenancy that commences after 1st October 2015 notice has to be after 4 months or not within 2 months of the tenancy starting?? It has been confusing me a little if I am honest, as I believed as long as the notice did not expire before the Fixed Term ended and as long as it was at least two months then my notice served is correct?
Expert:  Ash replied 5 months ago.

Correct. At least 2 months notice.

Does that clarify?

Customer: replied 5 months ago.
what is this new information regarding tenancies after 1st October 2015 mean then? As it does state online :-For tenancies which first begin on or after 1st October 2015 it will not be possible to give a section 21 notice in the first four months of the tenancy. In the case of replacement tenancies (new tenancy with same parties and same premises as previous tenancy), the relevant period is four months from the day on which the original tenancy began.The new provisions also stipulate that, once a section 21 notice has been given, possession proceedings must be commenced (where appropriate) within six months of the service of the section 21 notice. In other words, “use it or lose it”. For notices given under section 21(4)(a) – relevant in the case of statutory periodic tenancies – the relevant period is four months from the date of expiry of the notice.The prevention of service of a section 21 notice during the first four months of a tenancy may be annoying for any landlord who has created a six-month tenancy as it will be practically impossible to time the service of the notice correctly to have the tenant leave at the end of the six months.
Expert:  Ash replied 5 months ago.

Is this a one off tenancy or a renewed one?

Customer: replied 5 months ago.
This is her first tenancy with us, a Six Month Fixed Term on an Assured Shorthold Tenancy Agreement.
Customer: replied 5 months ago.
It also states online :-This is a somewhat technical change but it may come as a relief to those landlords and letting agents (not to mention their professional advisers) who struggle to count days correctly. Under the new rules, the need for a landlord to specify the last day of a period of the tenancy as the date on which the tenancy comes to an end will be removed. However, while this certainly removes an element of precision from the wording of the notice, landlords and letting agents should still be aware that the date specified in the notice must still be (a) not earlier than 2 months from the date on which the notice is given and (b) not earlier than the earliest date on which the tenancy could be brought to an end under the traditional common law rules (by means of a notice to quit).Which is why I am getting confused?!
Expert:  Ash replied 5 months ago.

Ok - then yes you cant do it during the first 4 months, you also have to give them the renters guide and protect the deposit.
I understood it was a renewal and if so that is my mistake. If its a new tenancy which commenced after October 2015 then you can't give notice until 4 months has elapsed.

If you have, then you need to serve NEW notice now, to take effect from 1st September.

But dont forget in any event if the tenant is in breach of their obligations you can still serve a Section 8 notice and seek possession for breach of tenancy, ie late with rent etc

Can I clarify anything for you?

Expert:  Ash replied 5 months ago.

Please see link below for detailed guidance:

https://www.gov.uk/private-renting/your-rights-and-responsibilities

Customer: replied 5 months ago.
we can no longer serve notice to expire at the end of a Fixed Term then? As you would never be able to give a minimum of 2 months if you can't serve it until 4 months has expired?!So we can instead serve a Section 8 notice and forget the Section 21 altogether? Is that correct?She keeps stating she must be two months in arrears for us to be able to serve notice, but this is not the case is it, I am assuming there aren't new laws regarding this? As a landlord can evict a tenant for any reason as long as they give the correct notice period, is that right?Late payment will allow us to serve a Section 8 then?
Expert:  Ash replied 5 months ago.

You can serve S.21 notice as it will be a periodic tenancy.

So if its a 6 month tenancy on month 4 you serve 2 months notice to expire at the end of month 6.

But yes, you can issue a S.8 notice of the tenant is in breach.

The tenant must be either 2 months in arrears or continually late.

Does that clarify?

Expert:  Ash replied 5 months ago.

Yes Landlord can evict for whatever reason at end of fixed tenancy.

Customer: replied 5 months ago.
even though my notice doesn't take effect until after 4 months, i.e. 1st April 2016, because I issued it to her on 5th February 2016, the notice cannot stand?
Expert:  Ash replied 5 months ago.

Correct. But you can serve a new section 21 now and a section 8 for breach of agreement.

Does that clarify?

Customer: replied 5 months ago.
Do I have to reserve the Section 21, or can we just do the Section 8?
Customer: replied 5 months ago.
Isn't a Section 8 only for during the Fixed Term, which obviously this has now expired.
Customer: replied 5 months ago.
Also don't they have to be two months in arrears?
Customer: replied 5 months ago.
Is there someone else that specialises in this that can help me, as even renewed tenancies are affected by the new laws, so not sure I'm getting the correct information from you....?
Expert:  Ash replied 5 months ago.

I would serve both.

Section 8 is breach of tenancy and the test is two months arrears or continually late.

If you serve both then there can't be any doubt.

Does that clairfy?

Customer: replied 5 months ago.
Can I speak to someone else as we are more confused now than before!
Customer: replied 5 months ago.
Hello?
Customer: replied 5 months ago.
I need an answer urgently though.
Customer: replied 5 months ago.
Can you serve a Section 8 notice with just grounds 10 and 11?
Expert:  LondonlawyerJ replied 5 months ago.

Hello, I am a solicitor with 20 years experience I will try to answer this for you.

Forget about serving a section * notice. That leaves open the possibility of the tenant defending the proceedings and tying you up for months in court. I understand that the problem is pesistent delay in paying and not actual non-payment and that there are not any arrears to claim back.

You should serve a fresh s 21 notice and when 2 months have expired commence proceedings under the accelerated possession procedure assuming all the formalities referred to by Ash have been followed.

Expert:  LondonlawyerJ replied 5 months ago.

By section * I meant section 8.

Customer: replied 5 months ago.
I thought this too, as obviously late payment means I can only use discretionary grounds on the Section 8.Can you confirm however, which is where my confusion lies, with a Section 21 notice, that for tenancies commencing / renewing after 1st October 2015, that I could only issue this after the tenant has been in the property 4 months and in effect it would mean they would be able to stay for at least 7 months, as obviously I cannot serve it actually on the 1st day and expire at the end of the following month, as the tenant must have been given it a few days before the notice commences?Also can you confirm if a tenancy started before 1st October 2015 and we do not get them to sign new agreements and instead let it roll onto a statutory periodic tenancy then we could serve notice as normal, as we are not renewing the agreement are we? Or would the court see the Periodic tenancy as a renewal and therefore the 4 month period comes into effect again.Thank you
Expert:  LondonlawyerJ replied 5 months ago.

For tenancies on or after 1.10.15 you must wait fro 4 moths before servign anotice. but it can be served any day of the month as long as it gives 2 months notice.

Pre-October 2015 tenancies which are rolling tenancies the new rules do no apply

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