Just returned from Court

[Somecamel]

Don't want to bore you all silly so will try and keep it brief.

 

My LL issued my partner and I a Section 21 on the 19th December 2011 requiring possession by 29th February 2012.

 

Had so many problems with the property and the incompetent landlord so decided to go and moved out week before end of Feb.

 

Needed to tax my car so asked my brother to go and see if he could get the post from old address (DVLA reminder), back door left open so got in.

 

The Landlord had taken us to court to evict us and the court had awarded them the costs of £175.

 

This really peeved me off as I had told them we would be moving out.

 

Done a bit of research on here and some other places and read about the prescribed information and invalid Section 21's.

 

Made an application to the court to have the order set aside under 2 points.

 

1. Section 21 was not served correctly as missing prescribed information as per the notices to quit regulations 1988 no 2201.

 

2. Landlord has not protected the tenants deposit correctly. Failed to supply me with prescribed information.

 

Went to court this morning and the Judge wasn't really interested in what I had to say, and because the Landlord said I hadn't returned the keys when we moved out (they were posted to them) he said he wouldn't set aside the order.

 

10 minutes before going into the court room I was given some paperwork from the Landlords agent with their reasons and wanted to check with you guys if they are correct.

 

Point 1 (from above)

Mr Me is excluded from this act as the notices to quit regulations 1988 is for tenancies given under the rent act 1977.

Mr Me's tenancy was an assured shorthold tenancy agreement under the housing act 1988.

The Housing act 1988 does not give a specific format for the wording of a section notice, only that the notice has to be clear

and unambiguous.

 

Point 2 (from above)

A letter with the prescribed information and the terms and conditions was sent to the tenant but he failed to return the signed letter as requested.

 

Section 2.13 of the housing act 2004,5 & 6, give details of the prescribed information that the landlord has to supply the tenant with, it does not say that the tenant has to respond or confirm that he has received the information.

 

The interesting point here is I was given a copy of the prescribed information form that they said they sent me back in July 2010 when the tenancy started. It is not signed by me and I do not remember receiving it.

 

The terms and conditions attached to this document quite clearly state that they are from April 2012 (at the bottom of page to show revisions) so basically she has just printed them off and is trying to pass them off as being sent to me in July 2010.

 

I told the Judge this and again he didn't seem to care.

 

Isn't this fraud?

 

I'm trying to book myself in to speak to a solicitor now as the managing agent has charged us rent up until 13th June as they say this is the legal date we moved out which is around £3500.

 

It's really infuriating. please help

[45002]

Hello Somecamel

 

I don't know much about AST/s21

 

But

 

Can you just confirm the date the tenancy stated !

Edited June 26, 2012 by 45002

[Somecamel]

30th July 2010

[Somecamel]

I'm still dumbfounded as to how they had the cheek to forge the DPS proscribed information sheet and terms and conditions

[raydetinu]

If you moved out prior to repossession date then why did the LL have to get an order to evict you!! that usualy done after the date 29th Feb

Are you sure you informed LL in writing and did you return the keys!! If posted as you say did you tell them you were posting and did you send recorded delivery?

If neither of these then LL/Agent would assume you are still there!!

What happened to the deposit? did he keep it?

Did you pay rent up to the 29th Feb?

[Somecamel]

Hi, Keys were posted back as the relations between us were pretty bad and unfortunately I didn't send recorded delivery. Deposit is still with the DPA and rent was all paid up until the 29th.

[Steve__M]

Maybe I'm misunderstanding this, but it sounds like you are saying that you moved out in February, but the LL did not realise you had moved out and therefore issued eviction proceedings thereby resulting in the £175. Further, I'm presuming that you are saying you only found this out because your brother retrieved the post from the house by entering the unlocked back door.

 

However, if this were the case then it would not make sense to defend the case on the basis that the Section 21 was faulty. Instead you'd defend on the basis that you'd moved out!

 

After all, arguing that the Section 21 is faulty implies that you are still living there and you still *want* to live there.

 

As I say, maybe I'm misunderstanding something...

[Somecamel]

Hi Steve,

 

Thanks for your reply.

 

I did go into court stating that the Section 21 was invalid as they had not supplied me with the prescribed information, however, 10 minutes before I went in the managing agent gave me the form.

 

The form she gave me had terms and conditions from April 2012 ( I moved in 30th July 2010). I told the Judge I hadn't been given one and as far as I was concerned this proved it but he wasn't interested.

 

The Judge was adamant that because they said I hadn't returned the keys that the Eviction notice should stand and would not be set aside.

 

Hope this makes sense

[jaffro]

i dont to want highjack your thread somecamel...i just want to say we had similar problems with the judges not being all that interested in evidence that came up at the last minuete our exact response off our judge we had was " i havent got time to look at that it should of been filed earlier" yet the evidence that would have cleared our name so to speak was only given to us that very day of the court case and then the judge had the cheak to pass our papers to the claiment and the made off with our original documents............. the cival court system seems to side with the landlords more often than not no matter whats really right....

 

jaffro

[Snorkerz]

Your point 1 would have failed on the basis that the housing act specifically states that a 'Notice to Quit' shall have no effect on an Assured Shorthold Tenancy. The section 21 notice you were served was a 'notice seeking possession'.

 

The prescribed information required by the Housing Act 2004 - with regard to deposit protection - is not the same information that is required by the "notices to quit regulations 1988"

[Somecamel]

A bit of an update if anyone is interested.

 

We are going to see a Solicitor tomorrow to see where we go from here but we now have proof that they forged the DPS document. Any document before April 2012 will state that the Landlord has 14 days to protect the deposit and supply the prescribed information and any document after April 2012 will state 30 days.

 

The document given to us which the landlord 'signed' on the 25/08/2010 states 30 days so we have them. barstewards.

 

Will keep this thread updated incase someone else has been struggling with this point.

 

The terms and conditions form also has revisions at the very end of the document which I had missed at first

[Snorkerz]

If you are alledging that the tenancy ended in February 2012 then case law dictates you have no claim under section 213/214 after the end of the tenancy.

[Somecamel]

If you are alledging that the tenancy ended in February 2012 then case law dictates you have no claim under section 213/214 after the end of the tenancy.

 

I'm not really worried about the three times deposit, I would just like my deposit that I paid back, the LL has used fraudulent documents in court

[mariner51]

OP, s21 is not a Notice to Quit, as explained, and does not absolve T from giving due Notice during SPT.

Posting the keys back does not vacate the T, only indicates implied surrender. which LL can decline.

LL proceeded with repo case, not even knowing of your intent (keys lost in post?) and wished to avoid allegation of unfair eviction whilst the T legally continued. Quite rightly IMO, in the circumstances, he applied the cost of case to you.

Also when you moved, and before the hearing, you left the back door unlocked, & property unsecured, allowing the brother to enter on your instruction. LL is entitled to rent due up to date of poss hearing/eviction and has prob retained your deposit for this.

The Localism Act is not retroactive for Ts terminated before 5 Apr 12, so LL had no reason to forge the prescribed info based on pre 5 Apr Case Law.

Save the rest of you money and move on.

[Somecamel]

Hi Mariner,

 

Thanks for your advice, So to be clear, the LL issued me with notice seeking possession etc asking that we are gone by 29th February. We moved out before this date. So because I didn't explicitly tell the LL that I was moving out, sent an email telling them we would be gone in a few weeks at the beginning of February, they can then go ahead with the repossession?

 

We didn't leave the back door open, the estate agent had been in there taking photos for the re-letting of the property (saw on it their website) so they must have left it open.

 

My main gripe is the forging of the Prescribed information. My Solicitor has advised me to wait to see if they issue proceedings against us for the rent they are trying to trying to charge up until June 13th and then we can do the counter claim for them not protecting the deposit properly.

 

All very confusing for the average Joe.

[jaffro]

we are having a simlar problem with landlord/agent forging paperwork... and we are finding it hard to prove

[Somecamel]

When did your tenancy start? What are they forging?

[mariner51]

jafro please start your own thread for advice, to avoid confusion.

[Snorkerz]

If the landlord argues you are liable for rent until the end of the fixed term, you would include in your defence a counterclaim "if the court agrees with the claimant that the tenancy extended beyond 6/4/12 then I claim under section 214 of the 2004 Housing Act".

 

If he accepts it finished before then, you can't pursue him for non protection.

 

The principle Mariner explains are quite correct - so his 'stance' is right - but his 214 failure means you do have a chance of (if nt winning) minimising the loss.

 

Of course a bright landlord would have accepted your implied surrender on 5/4/12 (by when he would have had 2 months to find a tenant if we accept he realised you had offered to surrender).

[jaffro]

jafro please start your own thread for advice, to avoid confusion.

 

i dont need to start my own thread !!! i was just letting somecamal no he is not on his own where dodgy landlord/agents are involved