(A series looking at possible defences to section 21 claims)
The claim started before the fixed term had ended
We had a long discussion about this on an earlier blog post I did here. In fact the post attracted 53 comments before the comments section closed, one of the longest discussions on the blog.
I had always taken it as a matter of course that you do not issue proceedings for possession before the fixed term has come to an end. However some readers insisted otherwise.
The arguments for the proposal
Their argument ran that the legislation does not actually forbid it. Section 21(1)(a) simply says that the Court must be satisfied that the fixed term has ended before the order can be made. Its says nothing (so the argument ran) about the fixed term having ended at the time you issue the proceedings.
The whole point of doing this of course would be to get an order for possession in advance so that if the tenants failed to vacate on the last day of the fixed term you could immediately go round with the bailiffs and turf them out.
Why the arguments for are wrong
Sadly (for landlords) you can’t do that. Before the fixed term comes to an end the tenant is legally entitled to live in the property. Indeed, in a sense, it is his property.
You can’t issue proceedings in anticipation that someone will do or fail to do something (such as move out at the end of the fixed term). You have to wait until they have actually done it (or not done it) and issue then.
As several people pointed out in the blog comments, if landlords could go in and issue proceedings for possession before the time fixed for the tenants to move out, the courts would be even more clogged up than they are now.
It is also arguable that doing this would constitute harassment as if the notice ended before the fixed term did, you would in effect be requiring the tenant to vacate early.
If landlords issue before the fixed term has ended it could all end up rather expensive for them. The tenants would be entitled to ask for the claim to be ‘struck out’ with an order that their costs be payable by the landlord. The court may well consider issuing at that stage to be an ‘abuse of process’ so an order for costs would almost certainly be granted. So don’t do it!
Issuing before the end of the first six months
The argument against issuing before the end of the fixed term does NOT though, apply to issuing before the end of the first six months.
Section 21(5) says that a Judge cannot make an order for possession during the first six months of an assured shorthold tenancy under the special section 21 ground. However it is the date of the court order that is important, not the starting date of the proceedings.
A case in point
I had a case years ago where a tenant, who had moved from one room in a shared house to another without asking first, was given a short two months fixed term for his new room, along with a section 21 notice. At the end of the notice period I was instructed to issue proceedings.
We managed to get the case to court fairly quickly but the Judge set it down for hearing saying that it was premature, as the tenancy for the new room was a completely new tenancy and therefore the six months rule applied.
However by a bit of careful calculation we worked out that if she made the order at the end of the six weeks discretionary period allowed in cases of exceptional hardship, this would be outside the six months period.
So we got our order.