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View Full Version : PCOL S8 case dismissed, what are my options?



steve42
18-03-2010, 09:34 AM
Original AST 6 months from 26/3/08 paid 4 weekly, lapsed into periodic.

T started to miss payments in august 2009.

LL assisted T in housing benefit claim and provided new AST 4 months from 23/9/09 to 2/2/10 paid 4 weekly, S21 served at same time, notice expired 2/2/2010

Section 8 grounds 8 & 10 served on 19/1/2010, notice expired 2/2/2010

AST, S8 & S21 witnessed and signed by LL & T

PCOL S8 case heard 5/03/2010, T attended, LL did not, I have just found out judge dismissed the case, no explanation why but strongly suspect because I did not attended. Won't make THAT mistake again!

I know T already has solicitor fighting employment case so I need to do this 100% properly. I want this freeloader out, speedy possession is my goal, I can chase arrears via MCOL later.

What are my options?

1. Re-open existing S8 case?
2. Start new case(s), under S8 and/or S21?
3. Can I reuse existing S8 and/or S21 or do I need to issue new notices?

SALL
18-03-2010, 10:12 AM
Original AST 6 months from 26/3/08 paid 4 weekly, lapsed into periodic.

T started to miss payments in august 2009.

LL assisted T in housing benefit claim and provided new AST 4 months from 23/9/09 to 2/2/10 paid 4 weekly, S21 served at same time, notice expired 2/2/2010

Section 8 grounds 8 & 10 served on 19/1/2010, notice expired 2/2/2010

AST, S8 & S21 witnessed and signed by LL & T

PCOL S8 case heard 5/03/2010, T attended, LL did not, I have just found out judge dismissed the case, no explanation why but strongly suspect because I did not attended. Won't make THAT mistake again!

I know T already has solicitor fighting employment case so I need to do this 100% properly. I want this freeloader out, speedy possession is my goal, I can chase arrears via MCOL later.

What are my options?

1. Re-open existing S8 case?
2. Start new case(s), under S8 and/or S21?
3. Can I reuse existing S8 and/or S21 or do I need to issue new notices?

Firstly find out, why the original case was dismissed. Maybe your notice was defective, in which case you should serve new notices.

Paul Gibbs
18-03-2010, 10:30 AM
If you did not attend, and did not explain to the court why you would not be attending then your case will be dismissed because of non-attendance.

You are either going to have to make an application to court to re-instate the claim, or start over.

A claim under section 21 would mean that any possession order would not be allowed to take effect until 2/4/10. The reason for this is that you can have an AST for less than 6 months; however, any possession order cannot take effect until 6 months after the start of the tenancy.

I suspect an application to reinstate the section 8 claim would be on notice, which would mean a £75 fee and a court hearing. The other option is to submit a new PCOL which would cost £100; however, there would be no hearing.

steve42
18-03-2010, 10:50 AM
If you did not attend, and did not explain to the court why you would not be attending then your case will be dismissed because of non-attendance.

You are either going to have to make an application to court to re-instate the claim, or start over.

A claim under section 21 would mean that any possession order would not be allowed to take effect until 2/4/10. The reason for this is that you can have an AST for less than 6 months; however, any possession order cannot take effect until 6 months after the start of the tenancy.

I suspect an application to reinstate the section 8 claim would be on notice, which would mean a £75 fee and a court hearing. The other option is to submit a new PCOL which would cost £100; however, there would be no hearing.

Thanks for your reply Sal, I think Paul has kindly answered that one.

Thanks Paul, I will issue a new S8 ASAP.
Which route should I pursue S8, S21 or just in case both?

davidjohnbutton
18-03-2010, 12:37 PM
The reason that the judge dismissed your claim because you did not attend is because he/she needs proof of the rent arrears and sight of the tenancy agreement and S8notice and potentially proof of service of same.


If you dont attend, these items are not provable simply by your non-attendance - so the judge takes the view that you are no longer interested and will dismiss the claim.

I KEEP TELLING MEMBERS OF THIS FORUM - IF YOU HAVE A DATE TO ATTEND COURT FOR A POSSESSION HEARING WHETHER AS A DEFENDANT OR CLAIMANT - YOU MUST ATTEND - THE ONLY THING THAT MUST STOP YOU IS YOUR OWN DEATH OR THAT OF A VERY CLOSE RELATION OR ALTERNATIVELY IMPENDING BIRTH.

Everything else comes second to that - a defendant not attending leaves everything to be laid against him/her as a default, a claimant not attending leaves a possibility of dismissal, or if its a really good excuse, an adjournment causing further expense and time.

If you have a really good reason for not attending, then contact the court preferably by telephone and email/letter and explain - take the name of the person if telephoning and make sure they put your reason in front of the judge.

PCOL BTW has an option for adjourning and giving reasons for the request. I had to use it once when I was listed as claimant in two cases in different courts miles apart at the same time!!!!

steve42
18-03-2010, 13:19 PM
The reason that the judge dismissed your claim because you did not attend is because he/she needs proof of the rent arrears and sight of the tenancy agreement and S8notice and potentially proof of service of same.


If you dont attend, these items are not provable simply by your non-attendance - so the judge takes the view that you are no longer interested and will dismiss the claim.

I KEEP TELLING MEMBERS OF THIS FORUM - IF YOU HAVE A DATE TO ATTEND COURT FOR A POSSESSION HEARING WHETHER AS A DEFENDANT OR CLAIMANT - YOU MUST ATTEND - THE ONLY THING THAT MUST STOP YOU IS YOUR OWN DEATH OR THAT OF A VERY CLOSE RELATION OR ALTERNATIVELY IMPENDING BIRTH.

Everything else comes second to that - a defendant not attending leaves everything to be laid against him/her as a default, a claimant not attending leaves a possibility of dismissal, or if its a really good excuse, an adjournment causing further expense and time.

If you have a really good reason for not attending, then contact the court preferably by telephone and email/letter and explain - take the name of the person if telephoning and make sure they put your reason in front of the judge.

PCOL BTW has an option for adjourning and giving reasons for the request. I had to use it once when I was listed as claimant in two cases in different courts miles apart at the same time!!!!

Thank you John, very good advice. I have learnt my lesson the hard way. I have been to court in the past to defend a parking ticket! It's really not a big deal, quite interesting actually.

PLUS, you get immediate feedback of what is going on. The court office would not tell me anything on the phone, I had to wait 13 days to receive "Court Order" in the post before I knew it had been dismissed, another 2 weeks lost rent!

Paul Gibbs
19-03-2010, 08:50 AM
TBH it depends on what your priority is.

If you serve a section 21 notice then you are probably looking at around obtaining a possession order around 16 -20 weeks from when the section 21 notice is served.

If you serve a section 8 notice then you would probably have the first court hearing listed after around 8 weeks of serving the notice. At this first hearing you could get a possession order, however, if the tenant enters a defence then there could be a substantial delay in the claim for possession.

I have had section 8 claims that have taken many months to result in a possession order. The benefit of section 8 is that you would get a CCJ for the rent arrears at the same time (you would only get a possession order under section 21).

If you will want legal advice for the possession claim then your costs would be much less under section 21 than under section 8.

steve42
19-03-2010, 17:11 PM
TBH it depends on what your priority is.

If you serve a section 21 notice then you are probably looking at around obtaining a possession order around 16 -20 weeks from when the section 21 notice is served.

If you serve a section 8 notice then you would probably have the first court hearing listed after around 8 weeks of serving the notice. At this first hearing you could get a possession order, however, if the tenant enters a defence then there could be a substantial delay in the claim for possession.

I have had section 8 claims that have taken many months to result in a possession order. The benefit of section 8 is that you would get a CCJ for the rent arrears at the same time (you would only get a possession order under section 21).

If you will want legal advice for the possession claim then your costs would be much less under section 21 than under section 8.

Thanks Paul, possession is the priority so section 21 seems the best route.

Can someone kindly check my dates:

4 Month AST from Wed 23/09/09 to Tue 02/02/10 rent paid 4 weekly on Wednesday.

Section 21 served Wed 23/09/09 with following wording:
"Possession of this property is required after
Date of expiry of notice period: Tuesday 2nd February 2010."

I understand possession under section 21 cannot take place during the initial six months of the original tenancy, is that correct? Tenant owes rent from August 2009, his original AST lapsed into periodic befor then and was replaced by this short 4 month AST. Do I still have to wait 6 months until 2/4/10 as Paul suggested?

matthew_henson
19-03-2010, 17:22 PM
Section 21 can be issued during the fixed term of the tenancy but the earliest it can expire is when the fixed term ends, in your case 4 months from start, the six months rule applies to some Section 8 grounds

Which Section 21 did you use a or b?

steve42
19-03-2010, 18:37 PM
Section 21 can be issued during the fixed term of the tenancy but the earliest it can expire is when the fixed term ends, in your case 4 months from start, the six months rule applies to some Section 8 grounds

Which Section 21 did you use a or b?

Hi Matthew, I used Fixed Term Section 21 (1)(b) but not only do I trust Paul but I have also read else where that the six month rule applies to S21.

Not sure what the start date to measure the 6 months from: is it from original AST in 2008 which lapsed into periodic or is it Wed 23/09/09 the start of the new fixed term AST.

PLUS, as rent is collected 4 weekly on Wednesdays, how is 6 months counted, 6 calendar months ie 23/09/09 to 23/03/10 or 6 calendar months rounded UP to the next 4 weekly date, ie Wednesday 7/04/10 (4*7=28 weeks)

Snorkerz
20-03-2010, 16:06 PM
A claim under section 21 would mean that any possession order would not be allowed to take effect until 2/4/10. The reason for this is that you can have an AST for less than 6 months; however, any possession order cannot take effect until 6 months after the start of the tenancy.

As the tenancy (not the tenancy agreement) started in 2008 surely the 6 month rule is irrelevant? Having said that, LL isn't going to get a court date before 2/4/10 so it won't make any difference in this particular case.

tom999
20-03-2010, 16:33 PM
As the tenancy (not the tenancy agreement) started in 2008 surely the 6 month rule is irrelevant?
The current tenancy began on 23/9/09 (the original tenancy began on 26/3/08), as below:


Original AST 6 months from 26/3/08 paid 4 weekly, lapsed into periodic.

...and provided new AST 4 months from 23/9/09 to 2/2/10 paid 4 weekly, S21 served at same time, notice expired 2/2/2010

Snorkerz
20-03-2010, 18:46 PM
The current tenancy began on 23/9/09 (the original tenancy began on 26/3/08), as below:Tom999, I understood that, but I am under the impression that the 6 month rule applies from when the tenant moved in - ie that is when the tenancy and rights begin. The administrative issue of a new tenancy agreement can not relate to this rule because otherwise, tenants on SPTs could never be evicted using s21 because by your reasoning a new tenancy would be created each month.

tom999
20-03-2010, 19:02 PM
I am under the impression that the 6 month rule applies from when the tenant moved in - ie that is when the tenancy and rights begin.If you mean that you believe that the current tenancy began from 26/3/08, then I disagree.

The six month rule begins from when the current fixed term tenancy began, i.e. 23/9/09, as stated in s.21(5)(a):

"Where an order for possession under subsection (1) or (4) above is made in relation to a dwelling-house let on a tenancy to which section 19A above applies, the order may not be made so as to take effect earlier than—
(a) in the case of a tenancy which is not a replacement tenancy, six months after the beginning of the tenancy, and
(b) in the case of a replacement tenancy, six months after the beginning of the original tenancy."


The administrative issue of a new tenancy agreement can not relate to this rule because otherwise, tenants on SPTs could never be evicted using s21 because by your reasoning a new tenancy would be created each month.Not quite sure what you mean. I never stated that a new tenancy would be created each month.

Krispy
20-03-2010, 20:04 PM
If you mean that you believe that the current tenancy began from 26/3/08, then I disagree.

The six month rule begins from when the current fixed term tenancy began, i.e. 23/9/09, as stated in s.21(5)(a):

"Where an order for possession under subsection (1) or (4) above is made in relation to a dwelling-house let on a tenancy to which section 19A above applies, the order may not be made so as to take effect earlier than—
(a) in the case of a tenancy which is not a replacement tenancy, six months after the beginning of the tenancy, and
(b) in the case of a replacement tenancy, six months after the beginning of the original tenancy."

Not quite sure what you mean. I never stated that a new tenancy would be created each month.

But isnt this is a replacement tenancy? a further 6 months statutory protection would not apply.

Snorkerz
20-03-2010, 20:33 PM
(b) in the case of a replacement tenancy, six months after the beginning of the original tenancy."


But isnt this is a replacement tenancy? a further 6 months statutory protection would not apply.Thanks Krispy - I am sure that 21(5)(b) applies to the original post.

Tom999 - I think we're going to have to agree to disagree on this one ;)

tom999
20-03-2010, 21:52 PM
But isnt this is a replacement tenancy?Yes, I agree; s.21(5)(b) applies*.

To conclude, once the same tenant accumulates at least six months of tenancy for this property for this landlord, whether under one AST or more than one consecutive ASTs, the landlord can obtain and enforce a Possession Order under s.21.


* Post #14 wrongly assumed a different tenant for the new tenancy.

jeffrey
21-03-2010, 20:04 PM
I agree. For a letting to be a replacement tenancy (avoiding the six-month rule):
a. L/T/premises must be the same; and
b. T must have already clocked-up six months.