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Worldlife
21-04-2006, 04:03 AM
The section 21 Notice on LandlordZONE on LandlordZONE Letting Agreements, Forms and Notices (http://www.landlordzone.co.uk/agreements.htm) has for me changed colour from blue to black and the download link no longer works. Is this the same for others?

Was checking to find a form that includes the words "by virtue etc" as discussed in other threads on S21 and also to see if the LandlordZONE form is a universal one covering both Section 21(4)(a) and Section 21(1)(b)

A section 21 notice was served on both of the joint tenants in an initial fixed term and one of the tenants has now left and handed over his keys.

If the remaining tenant remains in occupation then would I be correct in regarding this section 21 as valid for the purposes of seeking a possession order?

If I agree not to proceed with a possession order and permit this tenant stay on and accept his rent am I correct in believing his occupation automatically become a Periodic tenancy and would it be wise to issue a new section 21(4) notice? I am not prepared to issue a new fixed term agreement in the sole name of the remaining tenant.

Would appreciate advice and guidance.

More background information in "End of period AST and end of joint tenancy (http://www.landlordzone.co.uk/forums/showthread.php?p=14866#post14866)

lawstudent
21-04-2006, 06:21 AM
If the original fixed term has ended and one of the joint tenants has departed there is a possibility that, by continuing to accept rent, you will be deemed to have created a new periodic assured shorthold tenancy in the sole name of the remaining tenant. The implication of this is that it may be impossible for you to enforce possession before another six months have elapsed. This is an interesting situation and I would be grateful for other opinions.

Paul_f
21-04-2006, 10:29 AM
The reason why the link no longer works is that the Editor asked me to look at the Notice and I said that you can't have a "one size fits all" document, because a Notice served during the fixed term doesn't have to end at the end of a rental period but one served during a periodic one does!.

I's therefore back to the drawing board, but I'm sure it will be revived sometime soon?

Energise
21-04-2006, 10:48 AM
If the original fixed term has ended and one of the joint tenants has departed there is a possibility that, by continuing to accept rent, you will be deemed to have created a new periodic assured shorthold tenancy in the sole name of the remaining tenant. The implication of this is that it may be impossible for you to enforce possession before another six months have elapsed. This is an interesting situation and I would be grateful for other opinions.

I was discussing this possibility a little while ago and we ended with a similar view to yours, but what if you were actively seeking eviction at the same time?

lawstudent
21-04-2006, 14:48 PM
I was discussing this possibility a little while ago and we ended with a similar view to yours, but what if you were actively seeking eviction at the same time?I think that if you are actively seeking to recover possession from the remaining tenant you will not be creating a new tenancy; any further "rent" you receive should then be regarded as "mesne profits". But I am not sure of this ... it is just an opinion.

Worldlife
21-04-2006, 16:31 PM
Thanks for your help and guidance.

Ah decision time approaches!

Quite honestly I am reluctant to seek possession from a person who has been admitted to mental hospital and as a consequence lost income and fell into rental arrears. This low paid tenant earns my respect for, within a very short period of time bringing the rent back up to date.

If the remaining tenant will have six month security of tenure then that makes the alternative of granting a new joint tenancy with him and his sister less awesome.

On the question of notices I notice that both The Letting Centre pro forma section s21(4)(a) includes "DATE OF EXPIRY after" and the s21(1)(b) states "DATE OF EXPIRY from"

For discussion purposes and without any intent to intrude on copyright I find the information on the Lawpack S21 rather good in including a clause that prevent invalidity if there is an error of entry on the date.

I understand updates of this form may include the words "by virtue of" and reference to specific sections.

Hoping that we will soon get the a watertight form or forms from LandlordZONE.



ENGLAND & WALES
HOUSING ACT 1988 Section 21
Assured Shorthold Tenancy: Notice Requiring Possession

To:- Name & address of Tenant


From:- Name & address of Landlord

I give you notice that I require possession of the dwelling house known as

Address of property:-

After (insert date)

or (if this notice would otherwise be invalid) I require possession on the first date after:
• at least two months after service upon you of this notice, and
• (if your tenancy is for a fixed period) a date not earlier than the end of the
fixed period, or
• (if your tenancy is a periodic tenancy) the last date of a period of your
tenancy but no earlier than the date on which your tenancy could lawfully
be ended by a notice to quit

Name address & telephone number of agent if the form is signed by the Landlord's agent

Dated Signed

Landlord

PRESCRIBED INFORMATION
As set out in the Notices to Quit (Prescribed Information) Regulations 1988
1. If the tenant or licensee does not leave the dwelling the landlord or licensor must get an order for possession from the court before the tenant or licensee can be lawfully evicted. The landlord or licensor cannot apply for such an order before the notice to quit or notice to determine has run out (i.e. before the expiry date).
2. A tenant or licensee who does not know if he has any right to remain in possession after a notice to quit or a notice to determine runs out can obtain advice from a solicitor. Help with all or part of the cost of legal advice may be available under the Legal Aid Scheme. He should also be able to obtain information from a Citizens Advice Bureau, a Housing Aid
centre or a Rent Officer.

MrWoof
21-04-2006, 17:50 PM
I have used the Lawpack S21 twice in court, once served inside the initial period and once on a periodic tenancy. Both were accepted by the judge.

Worldlife
22-04-2006, 04:59 AM
Although the tenant complied with my Lawpack S21 Notice relating to an end of period it was submitted to Court and accepted as evidence associated with rent arrears and damages.

Following the threads here concerning possible deficiences in S21 I now quote, for discussion purposes and without intent to intrude on copyright, S21 notices from another source. Note we are looking at content here and the actual presentation of the notice has not been copied accurately:-



HOUSING ACT 1988, Section 21(1)(b) As amended by the HOUSING ACT 1996
Assured Shorthold Tenancy: Fixed Term
Notice Requiring Possession
(i) Name and address of tenant.
To:
of
(ii) Name and address of landlord
(see Note B) From:
Of
ADDRESS OF DWELLING
I give you notice that I require possession of the dwelling house known as
(Hi) See Note C
DATE OF EXPIRY from

Signed:
Dated:.

(iv) Name and address to be completed when notice is served by agent
Landlord's Agent:
NOTES
A. On or after coming to the end of a fixed term assured shorthold tenancy, a court must make an order for possession if the
landlord has given a notice in writing
B. Where there are joint landlords, at least one of them must give this notice.
C. The length of the notice must be at least two months, and the notice must be given before or on the day on which the fixed term
comes to an end.
INFORMATION FOR TENANTS
• 1. If the tenant or licensee does not leave the dwelling, the landlord or licensor must get an order for possession from the
court before the tenant or licensee can lawfully be evicted. The landlord or licensor cannot apply for such an order before the
notice to quit or notice to determine has run out.
• 2. A tenant or licensee who does not know if he has any right to remain in possession after a notice to quit or a notice to
determine runs out can obtain advice from a solicitor. Help with all or part of the cost of legal advice and assistance may be
available under the legal aid scheme. He should also be able to obtain information from a Citizens' Advice Bureau, a Housing
Aid Centre or a rent officer.
S21(1)B.DOC 25/04/02
© The Letting Centre 2002




HOUSING ACT 1988, Section 21(4)(a) as amended by the HOUSING ACT 1996
Assured Shorthold Tenancy: Periodic Tenancy
Notice Requiring Possession
(i) Name and address of tenant.
To:
of
(HJ Name and address of landlord (Note B)
From:
of
ADDRESS OF DWELLING
I give you notice that I require possession of the dwelling house known as
(Hi) See Note C
DATE OF EXPIRY
after

Signed:
Dated:

(iv) Name and address to be completed when notice is served by agent.
Landlord's Agent:
NOTES
A. Where an assured shorthold tenancy has become a periodic tenancy, a court must make an order for possession if the
landlord has given a notice in writing.
B. Where there are joint landlords, at least one of them must give this notice.
C. This notice must expire:
(a) on the last day of a period of the tenancy.
(b) at least two months after this notice is given.
(c) no sooner than the earliest day on which the tenancy could ordinarily be brought to an end by a notice to quit.
INFORMATION FOR TENANTS
• 1. If the tenant or licensee does not leave the dwelling, the landlord or licensor must get an order for possession from the
court before the tenant or licensee can lawfully be evicted. The landlord or licensor cannot apply for such an order before
the notice to quit or notice to determine has run out.
• 2. A tenant or licensee who does not know if he has any right to remain in possession after a notice to quit or notice to
determine runs out can obtain advice from a solicitor. Help with all or part of the cost of legal advice and assistance may
be available under the Legal Aid Scheme. He should also be able to obtain information from a Citizens' Advice Bureau, a
Housing Aid Centre or a rent officer.
S21(4)A.DOC 02/07/03
The Letting Centre 2003

It is possible these forms have been update but I can see no reason why these notices dated 2002 and 2003 should not meet fully the requirements of a S21 notice as stipulated in our previous discussions.

IMHO the fact that professional sources may not be getting these forms completely correct justifies my case that documents such as these must be prescribed forms.

It seems it is not simple task even for LandlordZONE to get watertight S21 notices for our users. :)

Is it more difficult for a lawyer to challenge a prescribed form that is completed correctly even if the government lawyers may have made an error?

lawstudent
22-04-2006, 07:41 AM
It is interesting just how many mistakes one can find in "professionally" produced S21 forms. Some refer to "prescribed information" which is only in fact prescribed for notices to quit (which an S21 is not) and many refer to an "expiry date" which is a term neither used in nor required by S21, and which only seems to add confusion.

I believe that the simplest way to get an S21 right is to use similar wording to that used in the Act, and not to try to be too clever.

For example (periodic tenancy):

Fred Landlord gives Jolly Tenant notice that, after 25 August 2006, possession of 23 Railway Cuttings is required by virtue of S21(4)(a) of the Housing Act 1988

It is easy enough to get the date right (the last day of a period and not earlier than two months after the notice is given) so no other wording is required. It also satisfies what I believe to be important: that it be clearly understandable to the tenant. Less is more, as van der Rohe said.

It probably would be a good idea if there were forms prescribed by the Act, but there aren't.

Editor
24-04-2006, 13:05 PM
Notice now available for download at:

http://www.landlordzone.co.uk/agreements.htm

This is a combined fixed-term and periodic notice - it's supplied free - we do no give any guarantees as to accuracy and accept no liability from its use - use at your own risk.

Feed-back and comments welcomed.

lawstudent
24-04-2006, 13:40 PM
Editor - your S21 notice looks wrong to me, especially for periodic tenancies - please refer to my post above

MrWoof
24-04-2006, 17:14 PM
As far as I am aware, the notice must say that possession is required 'After' a given date, not 'Date of Expiry'
In the case of joint tenants, one notice with all tenant names on is acceptable, no need to serve each tenant with a notice.
I have used the Lawpack S21 twice successfully, it is both clear and easy to use.

Worldlife
24-04-2006, 19:58 PM
I like the "either" "or" options.

We have reference on these forums to the fact that the words "by virtue of" the subsection should appear on the form and the heading reference to the main section only for subsection 21(4) would be invalid.

Does the statement of the subsection being used comply with the legal requirement to include the words "by virtue of"

It is stated that many notices fail because the landlord has in error entered the incorrect date and that notice would not fail if the alternatives given, for example in the Lawpack version were stipulated.

The disclaimer at the bottom of the form IMHO shows lack of confidence by the author/s in the validity of their suggestions :D

A disclaimer such stresses my viewpoint that this should be a prescribed form.

lawstudent
26-04-2006, 07:11 AM
Does the statement of the subsection being used comply with the legal requirement to include the words "by virtue of"
There is no legal requirement to use these words, but since they are the words used in the Act it seems a good idea to do so.

Using "expiry date" instead of "possession is required after .." seems more serious (as there is no mention of expiry date in the Act, let alone a definition, it does not seem to be self-explanatory and a judge might regard it as rendering the notice defective)

Yes, Worldlife, the disclaimer does seem a good idea ;)

Energise
26-04-2006, 10:11 AM
There is no legal requirement to use these words, but since they are the words used in the Act it seems a good idea to do so.


This article appears to of come from The Letting Centre.

Adamson v Mather 24 September 2004

"The notice the landlord served failed because it did not refer to requiring possession by virtue of section 21 of the Act and the court held this to be fatal to the notice. The last two lines of Section21(4)a is the part of interest as it requires the notice served to state that "possession is required by virtue of this section" of the act."

Editor
26-04-2006, 12:29 PM
Thanks for the suggestions folks - have amended the notice again in-line with your comments:
see: http://www.landlordzone.co.uk/agreements.htm
This is not a prescribed notice so interpetation is inevitably going to be down to the individual judge - hopefully this will suffice?

lawstudent
26-04-2006, 12:45 PM
Energise: in Adamson v Mather the notice failed because it made no mention of S21, not because of the precise words used. I do not believe there is any legal requirement for any precise form of words, but I still feel that the safest thing to do is to use the same form of words as is used in the Act.

Editor: I followed your link but the notice seems the same. What has changed?

Worldlife
26-04-2006, 13:00 PM
There is no legal requirement to use these words, but since they are the words used in the Act it seems a good idea to do so.

Using "expiry date" instead of "possession is required after .." seems more serious (as there is no mention of expiry date in the Act, let alone a definition, it does not seem to be self-explanatory and a judge might regard it as rendering the notice defective) <snip>



The N5 Claim form for possession of property in Q7 requires you to fill in:-

"The notice expired on xxxxxxxxxx 20xxx"

Note the use of the word "on" instead our our usual format of after (being the day preceding the start date of each month's tenancy) Presumably the notice expires on the "after" date :)

The notice would not be invalid if the precautionary clauses recommended by Lawpack were used.

lawstudent
26-04-2006, 15:37 PM
The N5 Claim form for possession of property in Q7 requires you to fill in:-

"The notice expired on xxxxxxxxxx 20xxx"

Note the use of the word "on" instead our our usual format of after (being the day preceding the start date of each month's tenancy) Presumably the notice expires on the "after" date :)

The notice would not be invalid if the precautionary clauses recommended by Lawpack were used.

Your use of the word "presumably" says it all! The N5 form can say what it likes and be as confusing as it likes and it's really a bit of an irrelevance, because all the original documentation has to be submitted with it.

Yes, the wording of the Lawpack form seems legally watertight but I bet few tenants would be able to make much sense of it!

Worldlife
26-04-2006, 15:57 PM
IMHO a statutory claim form "Printed on behalf of the Court Service" may have a great deal of legal validity.

Question 11 "Statement of Truth" asks you to sign " I believe that the facts stated in this claim form (and any attached sheets) are true"

I certainly would not regard it as an "irrelevance" to complete the form incorrectly but rely on your assurance that the case will not be thrown out if the date on the N5B differs from that on the S21.

lawstudent
26-04-2006, 16:28 PM
Official forms are often confusing, and just because one is printed on behalf of the Courts Service doesn't ipso facto mean that will be any better worded, or that its content will have any more legal validity than one emanating from any other government department. I don't think the N5B form is very well worded, and it is a bit of a pig to fill in, but at the end of the day, so what? :p

Energise
26-04-2006, 17:17 PM
Energise: in Adamson v Mather the notice failed because it made no mention of S21, not because of the precise words used. I do not believe there is any legal requirement for any precise form of words, but I still feel that the safest thing to do is to use the same form of words as is used in the Act.

Ah, ok I thought because they had used " " they were quoting.