Here is a question to the blog clinic from Nathan (not his real name) who is a tenant:
My landlord is exercising a 6 month break clause in my contract. However, he has not protected my deposit within 30 days nor issued Prescribed Information.
Is the break clause still effective? Or does the LL need to meet the requirements of issuing the S21 for the notice to be effective?
I have asked the LL to return our deposit in full and then we will leave by the date they have requested.
They are saying that since they have not issued the S21, the issue regarding the tenancy deposit not being protected on time and none issuance of Prescribed Information is irrelevant. They have only sent us a letter saying that they want us to surrender the property in 2 months time.
If I stay in the property beyond the 2 months, will the LL first need to issue us with a S21, or can they go straight to the court to request possession of the property?
There is a difference between activating a break clause, ending the tenancy and actually being able to get possession. Let us look at the different strands.
1. The break clause.
There is nothing to prevent a landlord using a break clause so long as it is valid. He will not be prevented from using it because the deposit was not protected.
So the landlord can end the fixed term. However, what happens then? A new tenancy will be created automatically under s5 of the Housing Act 1988. This will be a ‘periodic’ tenancy, normally a monthly periodic tenancy if the rent is paid monthly.
So instead of being (for example) half way through a fixed term you will (in most cases) have a monthly periodic tenancy. But you will still have a tenancy.
2. Getting physical possession.
The fact that the fixed term was ended, DOES NOT entitle the landlord to possession.
As I said above, a new periodic tenancy will take its place – you will not (for example) be a trespasser/squatter. If the landlord wants to get possession he will have to get a court order for possession first.
The reason for this is the Protection from Eviction Act 1977.
This act says that (apart from a few exceptions which do not apply here) a landlord will be committing a criminal offence AND a civil wrong (entitling the tenant to claim for damages) if a tenant is evicted other than by a Court Bailiff or Sheriff under the authority of a Court Order for possession.
3. Getting a court order
The procedures for getting a court order for possession are very formulaic and I have discussed them elsewhere on the blog. If you are not in arrears of rent, probably the only procedure your landlord can use is section 21.
However, if your landlord has not protected the deposit, he will not be able to serve a valid section 21 notice on you unless he has first returned the deposit money to you.
So possession based on s21 will not be available to him. He can ‘go to court’, but if he does he will (or should) lose his case.
4. What are your rights?
You are entitled to stay in the property until your landlord gets a court order for possession and then a bailiffs appointment.
He has no right to force you to accept a surrender if you do not want to. If he tries to do this, it will be harassment which is a criminal offence.
To be in a position to get an order for possession under section 21, your landlord will need to:
- Return the deposit money to you and
- Serve a section 21 notice on you (minimum notice period is 2 months)
So you can stay in the property for the foreseeable future.
If your landlord refuses to accept this situation I suggest you speak to the Tenancy Relations Officer at your Local Authority who will advise you. Or you can get help from Shelter or the CAB or a solicitor (ideally at a Law Centre, if there is one nearby).
Note: Tenants who are being threatened with eviction by their landlords may find my ebook >> here helpful.