Section 21 in renewed tenancy: break clause timing concerns?

Guest Author

0:01 AM, 2nd July 2024, About 4 days ago 3

Text Size

Hi, we have an AST commencing 22-March-24 finishing on 21-March-25 (and monthly periodic thereafter) with a 6-month break clause (which should start from 22-September-24).

This is not the original AST with our tenants as they started renting our property from February 2020 and we still have copies of those previous ASTs.

The Break Clause on the current AST states: “This tenancy agreement may be terminated by either party giving at least 2 months’ notice in writing on of before the rent due date, to expire at any time after 6 months from the start of this agreement.”

We have come across a seemingly helpful article from Shelter >> https://england.shelter.org.uk/professional_resources/news_and_updates/section_21_getting_the_dates_right

Under title “When a section 21 notice is given too early” it states the following: “Landlords cannot rely on Section 21 notices where they give the notice too early.

A notice cannot be given within the first four months from the date the tenancy began. This applies only to the original tenancy. It does not apply to a tenancy renewed at the end of the original term or to a statutory periodic tenancy.

This limitation makes little sense, since a landlord who renews a tenancy for a further fixed term is permitted to give the section 21 notice as soon as that tenancy starts. Yet, unless there is a break clause, the earliest the notice can take effect is at the end of the fixed term.”

As we are worried about the impending demise of Section 21, we have a couple of questions:
1) What is the relevant legislation that applies to Shelter’s quote regarding minimum 4-months’ notice applying only to the original tenancy? Does it explain what happens with Renewed Tenancies?

2) Our managing agents are saying that the break clause cannot be invoked (i.e. notice cannot be given) until 6 months of the AST has gone, whereas our position is that we can give at least 2-months’ notice before the 6 months is up i.e. notice given on or before 22-July-24 for a date of 22-September-24. We have checked with 2 other agents in our area. One agrees with us, the other agrees with our agent!

We know, in past posts on this forum, that people have said that notice can be given after 4-months with a break clause, but can it be given after 3-months on a renewed tenancy? We know that a Section 21 only lasts for 6 months. Since there seems to be confusion within managing agents, we need some clarity/details of the legislation, if possible, so that we can present this to the agents to force the issue.

Sorry for the short notice, but any help/advice that you can give us would be greatly appreciated.

Regards,

Neil

Share This Article

Tags: break clause timing, landlord tenant law, legal notice periods, renewed tenancy, Rental Property Regulations, Section 21 Notice, Tenancy Agreements

Comments

Neil Liberty

11:32 AM, 2nd July 2024, About 4 days ago

Thank you P118 for changing the title of my post – Your version makes much more sense!

Yesterday when I submitted the post, the managing agents’ position was still that they could not give notice on the Break Clause until 6 months had elapsed in the current AST.

In the afternoon, that position changed to allowing the notice to be given not earlier than the rent payment date (on a business day) 2 months before the Break Clause date. In our case, the 22-Jul-24 is a Monday and exactly 2 months before the Break Clause date of 22-Sep-24.

Obviously, their initial position was wrong, but their updated position is still wrong.

Why? Because I have done some more research on the subject and now have definitive proof that you can give notice earlier than 4 months on a Renewed Tenancy (or AST) with a Break Clause, as long as the possession date on the Section 21 (Form 6A) is at least 6 months after the start of the current AST.

This sounds great but please be realistic – If you Serve a Section21 too early, it is possible that a court may reject the Section 21 as it only exists for 6 months.

I came across the following informative article by Clare Anslow of Gatehouse Chambers, dated 16 Jul 2018, where she explains about Section 21 – Notices and Possession Procedure. https://gatehouselaw.co.uk/section-21-notices-and-the-possession-procedure
In this article, towards the end, under “Anything else?” it states:
“Finally, remember that:
• A landlord cannot use s21 notice to end an AST before the expiry of the fixed term unless there is a break clause;
• Any possession order may not take effect earlier than six months after the beginning of the (original) tenancy;
• A s21 notice may not be given within the period of four months beginning with the day on which the (original) tenancy began.”

Much like Shelter, the (Original) Tenancy phrase is mentioned. However, these are just articles and not the law.

The legislation is the Housing Act 1988, Section 21: https://www.legislation.gov.uk/ukpga/1988/50/section/21

In our case, I believe the Section 21(4) is applicable, so 21(4B) states:
“(4B) A notice under subsection (1) or (4) may not be given in relation to an assured shorthold tenancy of a dwelling-house in England—
(a) in the case of a tenancy which is not a replacement tenancy, within the period of four months beginning with the day on which the tenancy began, and
(b) in the case of a replacement tenancy, within the period of four months beginning with the day on which the original tenancy began.”

This is repeated in 21(5).

In 21(6) it defines what is an Original Tenancy and in 21(7) it defines what is a Replacement Tenancy.

Each case should be decided on its own merit. However, in our case, as our Tenants have been in the same property since February 2020, 21(4B)(b) applies as we are on our 4th Replacement Tenancy and 4 months after the Original Tenancy is June 2020, not July 2024 as our agents are implying.

Whilst I’m sorry for possibly giving someone else the runaround, I think this article is still useful to all landlords before Section 21 is abolished.

Regards
Neil

Report Comment Reply

Helen

12:54 PM, 2nd July 2024, About 3 days ago

To make it simpler, this is how I understand it. A normal AST will have a break clause at 6 months so you can give notice of two months at 6 months. This would include a S21 which also gives 2 months notice.
I have been informed by the excellent eviction agency I always use (Legal for Landlords) that you can't serve a S21 within 2 months of a renewal contract. I hope this simplifies and clarifies things.

Report Comment Reply

DPT

10:57 AM, 3rd July 2024, About 3 days ago

It would have been a lot easier if you'd just allowed the tenancy to go periodic after the initial fixed term. The only person to benefit from a tenancy renewal is the agent.

Does your break clause state that a s21 notice can be used as a break notice? If not then you'd have to serve both. A s21 notice can be longer than 2 months, so you can serve one at any time, but they only have a shelf-life of 6 months. You also need to allow extra days for postage and weekends. You could serve a valid s21/break notice now to expire 22 September.

Report Comment Reply

Leave Comments

In order to post comments you will need to Sign In or Sign Up for a FREE Membership

Continue with Facebook

Continue with Twitter

Continue with Facebook

Continue with Twitter

Username/Email Address

Password

Remember Me

Forgotten your password?

Don't have an account? Sign Up

“Account”	means an account required to access and/or use certain areas and features of Our Site;
“Cookie”	means a small text file placed on your computer or device by Our Site when you visit certain parts of Our Site and/or when you use certain features of Our Site. Details of the Cookies used by Our Site are set out in section 13, below;
“Cookie Law”	means the relevant parts of the Privacy and Electronic Communications (EC Directive) Regulations 2003;
“personal data”	means any and all data that relates to an identifiable person who can be directly or indirectly identified from that data. In this case, it means personal data that you give to Us via Our Site. This definition shall, where applicable, incorporate the definitions provided in the EU Regulation 2016/679 – the General Data Protection Regulation (“GDPR”); and
“We/Us/Our”	Means Property118 Ltd , a limited company registered in England under company number 10295964, whose registered address is 1st Floor, Woburn House, 84 St Benedicts Street, Norwich, NR2 4AB.

Name of Cookie	Purpose	Strictly Necessary
JSESSIONID	Used only to collect performance data, with any identifiable data obfuscated	No
__cfduid	This cookie is strictly necessary for Cloudflare's security features and cannot be turned off.	Yes

Name of Cookie	First / Third Party	Provider	Purpose
__utma, __utmb, __utmc, __utmt, __utmz	First	Google	Helps to understand how their visitors engage with our website
_fbp	First	Facebook	Helps to understand how their visitors engage with our website