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View Full Version : Problem T- how best to deal with s.8/s.21 Notices?



JohnC
18-03-2010, 07:53 AM
I'm dealing with a problem my mother-in-law is having with a tennant who is in arrears and made it clear she is unable to and unlikely ever to be able to pay the rent in full.

Our primiary goal is to regain possession of the property ASAP.

A solicitor was appointed to deal with the issue, but he issued the wrong notice (Section 83 rather than Section 8 - see thread titled: Housing Act 1985 Section 83 Notice of Seeking Possession - if you're interested).

I've now found that the agent issued a Section 21 notice to the tennant at the beginning of the AST.

The AST and Section 21 are both dated 20th August 2009

The AST began on the 7th September 2009

Both the AST and the Section 21 have been signed and dated by the tennant on the 07th September 2009. The signature on the Section 21 is follow the statement:

"I/We herby acknowledge receipt of a Notice Requiring Possession of which this is a true copy"

The AST was for 6 months from the 7th September 2009 and the Section 21 notice requires posession from 06/03/2010.

Is this Section 21 valid and if so what is the next step I should take to regain possession of the property.

Many thanks, John

PaulF
18-03-2010, 08:51 AM
If the Notice was served before the tenant actually took up occupation, i.e. in the agent's office beforehand then it's likely to be invalid.

tom999
18-03-2010, 09:11 AM
The AST and Section 21 are both dated 20th August 2009

The AST began on the 7th September 2009

Both the AST and the Section 21 have been signed and dated by the tennant on the 07th September 2009.

The s.21* will be invalid if:

the AST and the service of the s.21 have the same date and no time; or
the date and time of service of the s.21 was before the date and time of the AST; or
the s.21 was served before the tenancy began; or
any protectable deposit was not protected before the s.21 was served.


This thread discussed whether the same day service of a s.21 as an AST would be valid: When your S.21 might be invalid (http://www.landlordzone.co.uk/forums/showthread.php?t=24231).


* For an AST in England or Wales.

JohnC
18-03-2010, 09:48 AM
Thanks guys, it would appear the notice is invalid.

Seem the mother-in-law has picked poor letting agents as well as a poor solicitor.

I'll search the forum for details on how to issue a correct section 21.

Thanks, John

Paul Gibbs
18-03-2010, 10:34 AM
just make sure that the deposit is protected and that the prescribed information has been served on T.

JohnC
18-03-2010, 18:09 PM
I believe the deposit is protected - I hope so as a letting agent set up the AST and holds the deposit - but I'll verify that once I have the AST and all the documentation and before the new notice is sent.

I'm intending to use the Section 21 notice from this site, selecting s21(4)a as the fixed term ended in the 6th March.

As the tennacy started on the 7th September 2009 I've put the expiry date as 6th June 2010 - I believe that's the earliest correct date?

I've put the date the notice is served as 18th March.

Does that now seem to be a valid Section 21 notice?

Thanks, John

JohnC
18-03-2010, 19:01 PM
I'm helping my mother-in-law who has a problem with her tenant. In response to a section 8 notice (or rather a failed attempt at section 8 due to a blunder by the solicitor) the tenant has produced a long letter detailing a number of grievances.

She is also threatening to invite the EHO around to inspect as she has "given more than adequate time to carry out repairs".

Her letter suggests that the Landlord has knowingly allowed the property to fall into a state of disrepair which has been harmful to her - making her ill.

Finally she claims that all of the above had caused her to need anti-depressants from her GP.

In fact some of the repairs have already been done, or are in the process of being done, others have been investigated and no fault found and the rest have only just been reported.

We've been warned (by the blundering solicitor) that she could still sue the landlord and although her facts may not be correct the cost the landlord could incur in defending such a claim would be significant.

Given she is unable to afford the rent, would legal aid cover her suing the landlord, i.e. is this a risk?

Given that we'll get all repair work done ASAP or a tradesman to provide a written statement that no fault can be found, what else can we do to mitigate any claim she might make?

Should we formally respond in writing refuting her allegations or just ignore it and get on with doing any genuine work?

Thanks, John

JohnC
18-03-2010, 19:07 PM
Reading the notes on this site I found the following statement in the document servingS8.pdf:

When you serve a S8 Notice, you should also serve a S21 notice giving you the option to use the s21 route to possession later.

Is that standard advice, is that something the solicitor we appointed should have done?

I'm asking as we're going to pursue a complaint against him as he's sent the tenant two Section 83 notices rather than Section 8 notices. On top of that error, both notices contain incorrect information - the tenants name on both and the dates of tenancy and arrears on the first.

Regards, John

matthew_henson
18-03-2010, 19:08 PM
it is the text book responce for a tenant going through a section 8 eviction process who wants a council property.

Make sure you have a full and complete audit trail as evidence in court and make sure you can prove all repairs were done promptly.

What kind of disrepair are you being accusing you of?

Are these breachs of section 11 of the 1985 LTA or minor issues

fps
18-03-2010, 19:22 PM
what is the nature of the tenanct is it an AST

JohnC
18-03-2010, 19:24 PM
I've just looked up section 11 of the 1985 LTA and I'm not sure I fully understand it.

The repairs are:

1)A leaking conservatory and garden shed resulting in £2,000 worth of damage to her property.
2)A faulty bathroom door lock.
3)A faulty catch on the loft hatch.
4)A faulty heating timer resulting.
5)Lack of loft insulation on an 8 inch section between the gable and roof.

3,4 and 5 are apparently responsible for making her ill. I personally tested the timer recently and it worked. She admited to not knowing how to set it. I set it for her.

3 is being addressed, 2 and 5 are new complaints.

The conservatory (1) has been inspected and no leak found, will be inspected again ASAP. The apparent damage to property is a new complaint. The shed is a new complaint.

Regards, John

JohnC
18-03-2010, 19:25 PM
what is the nature of the tenanct is it an AST

Yes, it's a six month AST, started on the 7th Sept 2009.

Regards, John

matthew_henson
18-03-2010, 19:46 PM
I've just looked up section 11 of the 1985 LTA and I'm not sure I fully understand it.

The repairs are:

1)A leaking conservatory and garden shed resulting in £2,000 worth of damage to her property.
2)A faulty bathroom door lock.
3)A faulty catch on the loft hatch.
4)A faulty heating timer resulting.
5)Lack of loft insulation on an 8 inch section between the gable and roof.

3,4 and 5 are apparently responsible for making her ill. I personally tested the timer recently and it worked. She admited to not knowing how to set it. I set it for her.

3 is being addressed, 2 and 5 are new complaints.

The conservatory (1) has been inspected and no leak found, will be inspected again ASAP. The apparent damage to property is a new complaint. The shed is a new complaint.

Regards, John

1. (not the shed) is a legal repair obligation under section 11, requiring you to keep the property water and wind tight however it would appear you have proved there is no leak (get written evidence). Her losses if real can only be covered by her own insurance which I doubt she has, you have not been negligent and therefore unlikely to be liable.

The rest is wholly trivial and irelevant and she should thank you for being a nice landlord if you fix them.

One of lifes spongers, shame we don't have a termination policy for such beings in this country

Why don't you also issue Section 21 as the fixed period ended this month or have you started another thread on that very subject

Your mother in law should be very familiar with section 11 1985 LTA, it is one of the more binding obligations of a LL

tom999
18-03-2010, 19:58 PM
Do not rely on the agent. Call the three deposit schemes (http://www.direct.gov.uk/en/TenancyDeposit/DG_066391) to confirm the deposit is protected before serving a s.21 notice.

If the AST started on 7th September 2009, and the fixed term ended on 6th March 2010, then a periodic tenancy now runs from the 7th to the 6th of a month. i.e. the s.21 notice may be served on any day, but must expire on the 6th of a month (last day of a tenancy period) and the minimum length of notice must always be two calendar months from the day on which the tenant actually receives the notice.

If a s.21(4)(a) was served on 19th March 2010 (tomorrow), then possession would be required after 6th June 2010 (or the 6th of any subsequent month), so the s.21 expiry date should be "after 6th June 2010".

tom999
18-03-2010, 19:59 PM
It is best to serve s.8 (under applicable grounds) at the same time as s.21, as if one route fails, then you can use the other as a backup. It will cost you virtually nothing to serve a s.8 and a s.21 at the same time.

Any astute solicitor practising in this field would know this. When employing a solicitor always make sure that they specialise in landlord and tenant law in England and Wales.

A better option IMHO is to learn how to serve notices yourself; join a reputable LL's association, and they can guide you in filling in the paperwork over the phone; the advantages are that you gain a better understanding of how the process works and next time you can do it yourself.

JohnC
18-03-2010, 21:59 PM
Tom,

Thanks for the advice. A month ago I advised my mother-in-law to employ the services of a solicitor, one who claims to specialise in this area.

Unfortunately he appears to understand less of it than I've managed to pick up in the last two days from reading this forum and asking question on it.

I am now left trying to sort out the mess. I am also going to be pursuing a formal complaint against the solicitor, hence this question.

Regards, John

JohnC
18-03-2010, 22:07 PM
Matthew,

Thanks again for the reply.

Would it be adisable to respond to the letter and refute the accusations or to just ignore it and get on with getting any repairs that are genuinely needed done?

Regards, John

matthew_henson
19-03-2010, 06:27 AM
Simply acknowledge receipt of letter and state that you are still seeking a possession order under section 8 grounds....

If indeed she does get her day in court you want all your ducks nicely lined up with facts and figure in a correct order and hers to be in total disarray.

If you engage in a written conversation you may risk making errors which could be used against you.

Her game (probably on the advise of the council/legal aid) is go for illegal eviction which means the council must house her. Just go by the book and make the repairs despite the fact they are all cosmetic, ignore the £2000 of damaged property, a garden shed is taken as seen and their is no requirement for provide it in any specific condition unless stated in the contract.

If she tries to sue she also risks picking up yout costs should she lose

Paul Gibbs
19-03-2010, 07:50 AM
To be fair to the solicitor it does depend how he has looked at the situation.

You can serve both notices, but there may be no need to.

For example there is no need serving a section 8 notice if you intend to use the section 21 route. If a valid section 21 notice can be served (check deposit etc before service) then the section 8 notice would not be relied upon.

The question is about the landlord making an informed decision as to which notice to use. You could serve both notices and then decide how to proceed once either or both of the notices have expired.

If you wanted to use the section 8 route, because you think it might be quicker, and/or you want a money judgment for the arrears then the section 21 could be served at the same time as backup.

In many cases I would only serve a section 21 notice, as the landlord knows it is not worth pursuing the arrears, and knows that my legal costs will be much less under section 21 than section 8.

It may be that you were not advised with regard to your options. If you are not happy then raise a complaint and see what the explanation is.

JohnC
19-03-2010, 08:25 AM
Paul,

Thanks for the reply. The solicitor in question was briefed that due to ill health and the stress it is causing her, my mother-in-law would like to end the tenancy as soon as legally possible, with the least possible stress to her. Once that problem was resolved we would consider options to seek to recover the arrears.

He was also informed that whilst the arrears were at the time of the meeting around 11 weeks (I don't have the precise numbers to hand at the moment) the council had been in contact regarding settling some of it.

In light of that it seems to me that a Section 21 notice would actually have been the correct notice, or should at least have been issued immediately as a fall back.

He suggested we pursue a Section 8, but explained we would have to wait until the next rent day to issue it - thus introducing a 3 week delay. Is it a legal requirement to do so?

When he did finally issue a notice it was section 83 notice (see earlier thread) and had several factual errors (i.e. the date of the tenancy), even the second one he issued after the tenant corrected his errors, still contained errors (tenants name spelt wrong).

I'm asking all these question as I'm currently drafting a letter of complaint and wish to ensure I'm being reasonable and fair.

Many thanks for the help.

Regards, John

JohnC
19-03-2010, 08:34 AM
Simply acknowledge receipt of letter and state that you are still seeking a possession order under section 8 grounds....


She is now only 6 weeks in arears so we're going to have to abandon the section 8 I believe and pursue a section 21.



If she tries to sue she also risks picking up yout costs should she lose

That's actually still a concern, she has a low credit score, CCJ's against her, is on housing benefits (for all of these reasons I advised my mother-in-law not to accept her, but she foolishly ignored that advice) and doesn't appear to have any assets. So even if she becomes liable for any costs, I doubt she could pay.

The only saving grace might be that there is a guarantor for the AST - would they be liable for any of these costs too?

Regards, John

matthew_henson
19-03-2010, 08:44 AM
The only saving grace might be that there is a guarantor for the AST - would they be liable for any of these costs too?

Regards, John

No because the tenant would be taking action by virtue of their own actions

I would pursue the guarantor for lost rent though although it wouldn't be beyond the whit of man to assume they are a fraud and don't have a pot to p!ss in either.

I read you post again, what a waste of space this person is

JohnC
19-03-2010, 09:45 AM
Tom,

Thanks for the help, I've now got a copy of the Deposit Protection Service record from the agents and all the details appear correct.

Many thanks, John

JohnC
19-03-2010, 13:34 PM
She is now only 6 weeks in arears so we're going to have to abandon the section 8 I believe and pursue a section 21.


On further reading of this site it seems that the solicitor's advice that we could no longer use a Section 8 was also incorrect.

Certainly ground 8 is no longer valid, however grounds 10 (rent is due), 11 (all but first payment late or never paid), and 12 (smoking, pets, and possibly allowing a boyfriend to stay - though we might struggle to prove that - all of which are against the terms of the AST) are all valid.

As such it seems we can still issue a section 8 with 14 days notice. Given that she's clearly going to counterclaim is this wise and should we hire another solicitor to handle the court process or is it something I could do myself?

Thanks, John

jeffrey
19-03-2010, 13:46 PM
"Arrears" is, as regular readers know, irrelevant. What counts is simply the amount unpaid. As soon as it reaches or exceeds two months'-worth of rent, L can serve a s.8 Notice on ground 8 (usually yoked with grounds 10 and 11 too) the very next day. Two weeks later, if T's paid nothing more, L can institute proceedings against T.

JohnC
19-03-2010, 13:53 PM
The unpaid amount is unfortunately less than two months rent.

islandgirl
19-03-2010, 13:56 PM
can anyone really see possession being granted solely on the other grounds? I know in theory it could be, but......

davidjohnbutton
19-03-2010, 14:22 PM
Generally, on a S8 ground 8,10 and 11 summons, if the tenant has paid rent to reduce it below 2 months but there is still some outstanding, or the landlord has cocked up the wording of the summons (i.e. by not putting in why possession is claimed ((possession is claimed under ground 8 and/or 10 and/or 11 of Schedule 2 Housing Act 1988 as amended by Housing Act 1996 is the wording I use in Section 4 of the N119)) ) then the court is likely to give a suspended order with or without terms (i.e. pay monthly rent plus something off the arrears*, suspended so long as arrears* kept under 2 months).

* By arrears I really mean unpaid rent.

Snorkerz
19-03-2010, 16:10 PM
I believe the deposit is protected - I hope so as a letting agent set up the AST and holds the deposit - but I'll verify that once I have the AST and all the documentation and before the new notice is sent.

I'm intending to use the Section 21 notice from this site, selecting s21(4)a as the fixed term ended in the 6th March.

As the tennacy started on the 7th September 2009 I've put the expiry date as 6th June 2010 - I believe that's the earliest correct date?

I've put the date the notice is served as 18th March.

Does that now seem to be a valid Section 21 notice?

Thanks, John

The usual phrase is After 6th June 2010, as you can't apply to the court on the 6th - one day too early.

Otherwise fine, but don't serve until you know the deposit is protected and that T has had the 'prescribed information' (so 18th is too early).

Post it first class with free certificate of posting - the court will accept that as proof of service the following weekday.

JohnC
19-03-2010, 16:23 PM
Thanks, deposit confirmed and I've used the Section 21 notice from this site (http://www.landlordzone.co.uk/agreements.htm).

I've filled in the expiry date as After 6th June 2010 and it's been served today and dated today, one copy hand delivered with a witness and two posted with proof of postage from seperate post offices - belt and braces approach :-)

JohnC
21-03-2010, 15:51 PM
Just to sanity check (don't want any more mistakes) I've used the form from here: http://www.landlordzone.co.uk/members/download.php?f=Section21Notice.pdf and filled in the expiry date as:

'After 6th June'

So the whole seciton now reads:

DATE OF EXPIRY of this NOTICE:
Date/Time Field After 6th June 2010

Is that correct?

Cheers, John

tom999
21-03-2010, 16:06 PM
Yes, providing all other fields have been completed.

Keep a copy for your own records, and send two copies from two different post offices as above, retaining two certifcates of posting.

JohnC
21-03-2010, 16:13 PM
Smashing thanks.

Moderator1
22-03-2010, 09:20 AM
Two or more threads by the same member have been merged here. Please do not start a new thread if you merely wish to continue a previous discussion or report on subsequent developments. It can cause unnecessary confusion (quite apart from losing the connection with facts previously established or legal points previously explained).

JohnC
22-03-2010, 12:19 PM
My apologies, I'd thought a separate thread for each issue would be clearer.

Thanks, once again for everyone's help.

Regards, John

JohnC
22-03-2010, 19:05 PM
Do not rely on the agent. Call the three deposit schemes (http://www.direct.gov.uk/en/TenancyDeposit/DG_066391) to confirm the deposit is protected before serving a s.21 notice.


I've now recieved a copy of the agents record of the deposit being placed with the DPS, but worryingly they implied that the Prescribed Information would have been sent to the tenant by the DPS.

Reading the DPS website (in particular https://www.depositprotection.com/public/documentlibrary/agentinfo.aspx) it seems rather unlikely that the DPS would have.

I've chased the agent for confirmation (and ideally proof) that they've supplied the prescribed information.

If they haven't does that invalidate the Section 21 notice and leave the landlord open to a claim for compensation?

Thanks, John

jeffrey
23-03-2010, 09:51 AM
Yes. L can use s.21 only if:
a. any protectable deposit is protected; and
b. T has been given the prescribed information about it.

tom999
23-03-2010, 10:24 AM
I've chased the agent for confirmation (and ideally proof) that they've supplied the prescribed information.

If they haven't does that invalidate the Section 21 notice and leave the landlord open to a claim for compensation?
Yes, as stated in s.215(1) and (2) of The Housing Act 2004 (c. 34):

"Sanctions for non-compliance
(1) If a tenancy deposit has been paid in connection with a shorthold tenancy, no section 21 notice may be given in relation to the tenancy at a time when—
(a) the deposit is not being held in accordance with an authorised scheme, or
(b) the initial requirements of such a scheme (see section 213(4)) have not been complied with in relation to the deposit.

(2) If section 213(6) is not complied with in relation to a deposit given in connection with a shorthold tenancy, no section 21 notice may be given in relation to the tenancy until such time as section 213(6)(a) is complied with."

For reference:
"s. 213: Requirements relating to tenancy deposits
(1) Any tenancy deposit paid to a person in connection with a shorthold tenancy must, as from the time when it is received, be dealt with in accordance with an authorised scheme.
(2) No person may require the payment of a tenancy deposit in connection with a shorthold tenancy which is not to be subject to the requirement in subsection (1).
(3) Where a landlord receives a tenancy deposit in connection with a shorthold tenancy, the initial requirements of an authorised scheme must be complied with by the landlord in relation to the deposit within the period of 14 days beginning with the date on which it is received.
(4) For the purposes of this section “the initial requirements” of an authorised scheme are such requirements imposed by the scheme as fall to be complied with by a landlord on receiving such a tenancy deposit.
(5) A landlord who has received such a tenancy deposit must give the tenant and any relevant person such information relating to—
(a) the authorised scheme applying to the deposit,
(b) compliance by the landlord with the initial requirements of the scheme in relation to the deposit, and
(c) the operation of provisions of this Chapter in relation to the deposit,
as may be prescribed.
(6) The information required by subsection (5) must be given to the tenant and any relevant person—
(a) in the prescribed form or in a form substantially to the same effect, and
(b) within the period of 14 days beginning with the date on which the deposit is received by the landlord."

JohnC
23-03-2010, 13:43 PM
I'm really starting to bang my head on my desk here, seems no one involved has done anything right.

I've now had a copy of what the agents sent the tenant, the wording is as follows (names and addresses removed to protect the guilty):


I am writing to confirm that your deposit of £XXX has been transferred to The Deposit Protection Service and is protected through the scheme. The Depost Protection Server should write to you within 14 days confirming that they are holding your deposit and they will give you details of how to arrange the deposit return at the end of the tenancy.


The letter is dated 9th Sept 09 (AST start date).

Quite clearly that does not meet the requirements. Given the agents hold the deposit who has to put this right and who is liable for any penalties for doing so?

Is anyone (professionally qualified) interested in taking this over - I think it's getting way to complex for me to handle when it's not even my mess - the property and Landlord are based in Trowbridge Wiltshire if that makes any different?

Cheers, John

JohnC
06-07-2010, 13:32 PM
Firstly thanks to all who have helped to date.

The Section 21 notice has now expired and I'm now in the process of completing the N5B, but I have a few questions (I'm using the PDF from: http://www.justice.gov.uk/civil/procrules_fin/menus/forms.htm):

1) On the first page am I correct in assuming the court fee is £150? What Issue date should I put?

2) Section 3 requires a date that the written tenancy was entered into. The Agreement is dated 20th August (typed), the tenant's signature has no date and the agent's signature has the 7th September (handwritten), which is the correct date to use?

3) For section 7 I have a letter from a witness confirming the notice was delivered by the LL by hand and I have two proof's of postage, should I include all of these or is this excessive?

4) What effect will not crossing out section 9 have. Ideally we'd like to evict the tenant ASAP, however the LL is ill and recovering from major surgery so does not need the stress of attending court and I don't believe I can go in her place?

I've crossed out secitions 5, 6, 7(a) and 7(b).

Many thanks, John