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JohnC
17-03-2010, 15:42 PM
Can a Housing Act 1985 Section 83 Notice of Seeking Possession be used to seek possession from a tennant who has an AST?

I'm asking because my mother-in-law has a tennant who is in arrears that she wishes to send on their way. Wanting to make sure that things were done properly, fairly and legally I suggested she had the matter over to a solicitor.

Unfortunately he issued the first notice with the wrong dates relating to arrears (2007 rather than 2009 and the tennacy only started in Sept. 2009), which is utterly careless.

Both copies of the notice are headed:

Housing Act 1985 Section 83 Notice of Seeking Possession

and are a 1997 (copyright) version of a form produced by Oyez which states at the top that it relates to:

Secure Tennancies (Notices) Regulations 1987.

Which as the tennacy is an AST seem incorrect to me.

Many thanks, John

jeffrey
17-03-2010, 15:48 PM
No, it can't. Section 83 relates only to 'secure' [= public sector lettings] tenancies.
An AST is not within the 1985 Act but the 1988 Act.
Soemone has erred.

JohnC
17-03-2010, 15:53 PM
Jeffrey,

Thank you. That's shocking for £203/hour I'd expect him to a) understand the law better than me and b) not make simple mistakes.

Given he's sent two letters both using the wrong form and one with incorrect information on it - and he had a copy of the tennancy so has no excuse for not having the information I'd like to advise him his services are no longer required and not to send a bill for such poor work does that seem reasonable?

Thanks for taking the time to respond.

Regards, John

jeffrey
17-03-2010, 16:02 PM
No. As he seems to be wholly wrong, why pay him at all? Complain to his senior.

JohnC
17-03-2010, 16:13 PM
Thanks again.

He's a partner in the firm - I don't believe he has a senior.

Regards, John

jeffrey
17-03-2010, 16:15 PM
Thanks again.

He's a partner in the firm - I don't believe he has a senior.

Regards, John
Still complain and demand that no fee be charged.

Paul Gibbs
19-03-2010, 09:22 AM
have you suffered any additional losses due to the fact the correct notice was not served at the start? (e.g. additional lost rent due to the delay?)

JohnC
19-03-2010, 09:43 AM
Paul,

The solicitor was instructed on the 17th February, He served the notice dated the 22nd February.

He still maintained as of our meeting on the 17th March that the Section 83 notice is correct. I queried it as the tenant refuted it was correct, which is what drew our attention to the error.

So we're now just (I'm preparing it at the moment) issuing a correct section 21 (as the tenant is no longer 8 weeks in arrears, it's about 6 weeks) which has an expiry date of 'after 6th June'.

T has offered to settle £10 per month of arrears.

Regards, John

Paul Gibbs
19-03-2010, 13:25 PM
I was going to suggest that if the solicitor insists it is correct you could or should instruct him to recover possession. The claim would fail and you would potentially have a claim against him but to be honest that is not in your interests.

Have you paid the solicitor for the work he has done? If so I would raise a complaint within the firm, and then if not resolved to your satisfaction the SRA. The work carried out was of no value, and really should not be paid for.

I think it seems sensible to serve the section 21 and bring an accelerated possession claim

JohnC
19-03-2010, 13:51 PM
He's not been paid, in fact he has not even issued an invoice yet.

He was told his services were no longer required yesterday and asked for details of the firms complaints process.

I have no intention of letting her pay for any work he's done, but she's intimidated by his "expertise" as a solicitor.

Regards, John