Section 21 notice

[Peterbard]

Hi

 

The tenant has always been a poor payer.

In 2013 at the end of their lease my agent served them with a section 21 notice, however they convinced me that they would improve.

This they did. sort of. However mid 2015 payment became very sporadic and I found myself asking my agent to chase rent virtually every month.

Eventually in October last year I had had enough and asked him to start proceedings as they had just flatly stated they were not going to pay.

On reviewing the file, prior to taking it to court, i noticed that he had relied on the original notice(the one he had given them in 2013) and just given them 2 months notice just via a letter from the 17 of October 2015.

 

I am concerned that. due to the requirement for the form of the 21 changing last year, he has made an error.

In that the new type notice should have been sent in October 2015 befor I can apply for possession. Can anyone advise please.

[mikeymack2002]

DB as you know if you fail to follow the correct procedure and it comes to the attention of the Judge on the day the case can be thrown out. The same goes for the defendant in this case. If they can find a loophole they will want to use it.

 

 

Not only that there are cost implications involved if you go ahead knowing that the paperwork is not in order. To save you time and money it may pay you to start again and do it correctly this time. If you get the order and then the tenant finds the wrong forms were used then they can apply to have the order set aside. Again more costs to you...

 

 

Did you give the tenant the DCLG guide about renting? See here >> https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/484335/How_to_Rent_October_2015_FINAL.pdf

 

 

Finally have a look at the ! symbol here in section 1 >> https://www.gov.uk/evicting-tenants/overview

 

 

Forewarned is forearmed so to speak.... Save yourself grief money and time by doing this within the law.

 

 

Are you aware of this >> For example, a Section 21 notice cannot be served if there is no EPC or Landlord gas safety certificate in place for the property. Any non-compliance with this requirement will render the section 21 notice ineffective.

Edited January 10, 2016 by mikeymack2002
Added further info

[Peterbard]

HI MM thanks for taking the time to look at this.

It is not a very nice job but sadly I have to do on other occasions, so i know the score. I employ an agent who ensures all the tests are done , so that should not be a problem.

 

The query was relating to the form of the notice. this notice was served by my agent in october 2013, there is nothing wrong with this and to an extent it is standard practice when dealing with tenant who is a known risk Once served and the notice period passed there is no need to issue another one, and no time limit for commencing the proceedings.

 

However the law regarding the form of these notices was changed in October last year, what I am unsure of is the transitory provisions and if the old style form once issued is still effective when presented at court after that date.

 

As you say there is nothing worse than getting all the information ready for the hearing and finding ourt your notice is none compliant, you loose your fee and have to start all over again with another notice two more months lost rental income etc. I will probably have to consult my solicitor on monday(more expense:).

[mariner51]

If the s21 served was correct at time of service, it should still be valid now.

AIUI the Oct 15 changes only applies to new ASTs concluded on or after 1st Oct 15, so no need to re issue. Check with NLA/RLA.

[Peterbard]

If the s21 served was correct at time of service, it should still be valid now.

AIUI the Oct 15 changes only applies to new ASTs concluded on or after 1st Oct 15, so no need to re issue. Check with NLA/RLA.

 

Thanks for that. I thought it may have being just a case of me being overly cautious. I will also check the links.

 

The one issued back in 13 seems to be right, correct dates, correct sections quoted etc. No bond issues, also gave them more notice over the christmas period and another advice notice, just to be on the safe side. So I think we should be OK.

[speedfreek]

If the s21 served was correct at time of service, it should still be valid now.

AIUI the Oct 15 changes only applies to new ASTs concluded on or after 1st Oct 15, so no need to re issue. Check with NLA/RLA.

 

This is incorrect as.....

 

A section 21 notice is a notice of intention given to the tenant.

 

If you give a further instruction to the tenant then this becomes the current intention.

 

A tenant can only act on the current intention/instruction of the landlord.

 

Whilst the actual notice never becomes invalid good luck convincing a judge that allowing 2-3 years tenancy after issuing is showing your tenant your intention to evict !

[mariner51]

True, but the OP has made no mention of issuing a 2nd s21, only of giving T 'more time over Xmas' before seeking Court repo & relying on orig s21. You don't have to seek Court action on day after s21 expires. Unlikely a new T was created, even with verbal delay, rent is still payable until T lawfully ended.

Many LLs had no intention of evicting Ts when we were able to issue s21s at start of AST, just a time-saving device if T became a problem during SPT.

[Peterbard]

True, but the OP has made no mention of issuing a 2nd s21, only of giving T 'more time over Xmas' before seeking Court repo & relying on orig s21. You don't have to seek Court action on day after s21 expires. Unlikely a new T was created, even with verbal delay, rent is still payable until T lawfully ended.

Many LLs had no intention of evicting Ts when we were able to issue s21s at start of AST, just a time-saving device if T became a problem during SPT.

 

I have been advised recently that whilst many judges do not like giving orders in these cases, the legislation is clear and they have no option

 

I hope this is the case, I am currently in the position where the tenant has stopped paying altogether, I was advised to go the section 21 route rather than by section 8 by the agent.

 

They wanted me to get things moving before christmas but the tenant convinced me to give him chance to catch up(again), then they stopped paying altogether. Both of them work and have cars etc. I am in the position where i am paying a mortgage on the property and not being able to access it.

 

Making someone homeless is abhorrent to me but I do not know what else to do.

[mikeymack2002]

DB as you are aware that once you have been given possession I would move it up to the High Court asap. But make sure you follow the correct procedure. Then the wait to get your property back is minimal.. yes it costs you short term but long term no bad Tennant.

 

Hope you get this sorted out sooner rather than later...

[mikeymack2002]

DB have you read this http://www.consumeractiongroup.co.uk/forum/showthread.php?458843-Proposed-Pre-Action-Protocol-for-Debt-Claims&p=4849990#post4849990

[Peterbard]

True, but the OP has made no mention of issuing a 2nd s21, only of giving T 'more time over Xmas' before seeking Court repo & relying on orig s21. You don't have to seek Court action on day after s21 expires. Unlikely a new T was created, even with verbal delay, rent is still payable until T lawfully ended.

Many LLs had no intention of evicting Ts when we were able to issue s21s at start of AST, just a time-saving device if T became a problem during SPT.

 

No only one section 21 notice was issued by the agent, they say this is (or was) general practice. To be fair the agent wanted to commence proceedings at the beginning of last year, because we were having problems with arrears and some other breaches of the agreement, but each time I gave way to the pleas from the tenant, this last time it was because they have a little kiddy and christmas was looming, as said it now seems that they have just stopped paying altogether and now have nearly four months arrears.

 

Just costing the termination and enforcment process, it looks like the whole procedure is going to cost me about 4k, which i am unlikely to see again.

 

I have had a few properties and have never had this kind of problem before, not that i have not had arrears but we have always been able to work it out before, anyway the paperwork has gone onto the court now(with my £280) quid so I will keep you updated.

[Peterbard]

Just been advised that the CC will probably take 5 weeks to vary the order, transfer to high court issue writ etc, if and when I get it.

 

I thought this process was supposed to be quick ?

[mariner51]

It's post Xmas/New Year so Courts are likely jammed. At hearing, if you get repo Order, then request Judge to apply £280 Court fee be applied against T (CCJ) and apply for leave to refer repo Order to High Court for enforcement, or once you get a firm hearing date, you could enquire of CC Baiiffs for earliest visit or avail of cancelled appts.

[Lea_HTH]

With four months worth of rent arrears you would be well advised to also serve a s8 notice under grounds 8,10 and 11, and add it to your claim for possession in the alternative to the s21. Serving a s8, g8,10,11 requires only 14 days from service before you can add it to the court proceedings...make an application to join it to the current proceedings if you have already issued them.

 

Doing so does two things - 1) if your s21 is defective, you can rely on the s8, 2) if the tenant wants to defeat the ground 8, they will have to reduce their arrears to below two months. This is a win win situation for you, as a) you will potentially get back some of your rent arrears and b) you can still ask for possession under discretionary grounds because you have been dealing with this poor paying tenant for well over a year (it would be a very mean judge who forced you to keep tenants like these when it seems you have tried to give them lots of leeway and chances to pay).

 

Possession granted under ground 8 cannot be stayed - which means if you get a possession order granted you are guaranteed to get your property back.

[Peterbard]

Thanks for this ,the papers only went in today so I will ring the court and tell them I wish to amend the claim. Have to do a little research and find a claim form from somewhere, I presume that there is an additional fee ?

[Peterbard]

Hi just reading up on section 8 and it seems that this method is only for use if served within the fixed period of tenancy, my tenancy is on periodic payments the fixed term tenancy is expired, is this incorrect ?

[Peterbard]

Its OK I have just read the legislation and it seems the above is wrong, the notice can be used. Just goes to show you should not believe everything you read elsewhere on the net.

[Peterbard]

OK they have finally left. Apparently they waited for the eviction notice and left just 2 week and one day later. Apparently this is par for the course.

 

So just been arround with my agent and what a tip. Probably going to cost me at least two grand before i can do anything with it.

 

I may pursue them for the arrears and costs, i have a costs order with the repossession judgment, I may take out a sepperte money order for the arrears.

[reallymadwoman]

If they're employed and have cars, then I'd definitely pursue them for all the arrears and costs and tidying the place up. Make sure you dot all the i's and cross the t's re receipts and estimates and take plenty of photographs.

 

Just in case it turns into a saga, it might also be worth drawing up a timeline of the main events through their tenancy whilst it's still fresh in your mind.

[Peterbard]

If they're employed and have cars, then I'd definitely pursue them for all the arrears and costs and tidying the place up. Make sure you dot all the i's and cross the t's re receipts and estimates and take plenty of photographs.

 

Just in case it turns into a saga, it might also be worth drawing up a timeline of the main events through their tenancy whilst it's still fresh in your mind.

 

Thanks for responding RMW, i am a bit deflated at the moment, still I will get onto it first thing Tuesday.

They owe me about 3.5 k, the bond is 600, so about 3. I have yet to get a solid estimate for the work that needs doing,. They have left a load of rubbish in the front and rear gardens which will have to be moved, so probably another ton there, or environmental health will be on my back.

i will do a money claim online i think. As said the court already awarded me the 280 for issuing the section 21.

 

The agent has managed to find their new address.

[BazzaS]

The agent has managed to find their new address.

 

Worth warning the new LA and LL with factual info?

(Here is the court judgment, here are photos of how the property was left, and so on).

[Peterbard]

Worth warning the new LA and LL with factual info?

(Here is the court judgment, here are photos of how the property was left, and so on).

 

Yes indeed it does make you feel like that, when they have left you in such a mess. It is authority housing , so they must have lied on there application and said that they were homeless through no fault of their own. I suppose me using the section 21 rather than the section 8 could be used to imply that.

[BazzaS]

Yes indeed it does make you feel like that, when they have left you in such a mess. It is authority housing , so they must have lied on there application and said that they were homeless through no fault of their own. I suppose me using the section 21 rather than the section 8 could be used to imply that.

 

Even more reason to do so, then.

 

Did they leave before the S21 deadline?

Might the HA take action based on the T's false application, if others were disadvantaged (passed over for the tenancy) due to the T's lies?

[Peterbard]

Even more reason to do so, then.

Might the HA take action based on the T's false application, if others were disadvantaged (passed over for the tenancy) due to the T's lies?

 

Yes indeed ther is that to consider, it appears that there is a history of this with these particular individuals and indeed the reference they gave to my agent originally was faked. He failed to check it !! Yes I have had a word.

 

It explains why they were so good at knowing when to leave, i was sending the HCEO next week.

[reallymadwoman]

Before reporting them to the HA, you might want to try getting your money back whilst you still know where they live!