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boughtonsarah39
20-03-2010, 19:31 PM
I'm a private tenant, no letting agent deal direct with the landlady, and have 5 children renting a 5 bedroom house. Have an assured shorthold tenancy agreement which started on 11. October 2008 for the fixed term of 6 months. We moved in to the property late and signed the forms and paid rental in advances etc on 31. October 2008.

Fast forward to last year and after countless problems with landlady ie. no gas safety certificate, no EPC, a dining room covered in mould, and an inadequate ceiling (no fault of mine, a burst pipe in the bathroom flooded down and brought the ceiling down) and sewage pouring into my back garden as one of the underground pipes have broken I have contacted Envioronmental Health. They sent someone immediately and informed her the work needed doing asap. She hasnt done it. Anyway, she got fed up of us moaning at her to do the work and has given us a notice of possession in December.

Receive on 11th December 2009 a Notice of Possession for a Assured Shorthold Tenancy. This was signed and dated the 7th December 2009 and asked us to leave by 10. February 2010. It states "Assured Shorthold Tenancy : Notice Requiring Possession : Fixed Term Tenancy" I was under the understanding that we now have a periodic tenancy and that the fixed term was only for the first 6 months? Is that correct?

We havent found anywhere else yet so havent left and so shes taken us to court using the accelerated procedure. This was dated by her solicitor 11. February 2010. I submitted my defence and asked for the longest period the judge could give us to leave (I believe its 42 days). Have received a letter from the court today saying that there will be a hearing on 13. April 2010 as there is something wrong with the S21 shes issued. I'm now really worried as dont know what this means for us. Has she served the S21 correctly and will the judge just give us 14 days to leave? PLEASE HELP!!!!

Forgot to state she has no grounds to evict us which is why she is using the 2 month procedure.

Sarah

mind the gap
20-03-2010, 19:38 PM
I'm a private tenant, no letting agent deal direct with the landlady, and have 5 children renting a 5 bedroom house. Have an assured shorthold tenancy agreement which started on 11. October 2008 for the fixed term of 6 months. We moved in to the property late and signed the forms and paid rental in advances etc on 31. October 2008.

Fast forward to last year and after countless problems with landlady ie. no gas safety certificate, no EPC, a dining room covered in mould, and an inadequate ceiling (no fault of mine, a burst pipe in the bathroom flooded down and brought the ceiling down) and sewage pouring into my back garden as one of the underground pipes have broken I have contacted Envioronmental Health. They sent someone immediately and informed her the work needed doing asap. She hasnt done it. Anyway, she got fed up of us moaning at her to do the work and has given us a notice of possession in December.

Receive on 11th December 2009 a Notice of Possession for a Assured Shorthold Tenancy. This was signed and dated the 7th December 2009 and asked us to leave by 10. February 2010. It states "Assured Shorthold Tenancy : Notice Requiring Possession : Fixed Term Tenancy" I was under the understanding that we now have a periodic tenancy and that the fixed term was only for the first 6 months? Is that correct?

We havent found anywhere else yet so havent left and so shes taken us to court using the accelerated procedure. This was dated by her solicitor 11. February 2010. I submitted my defence and asked for the longest period the judge could give us to leave (I believe its 42 days). Have received a letter from the court today saying that there will be a hearing on 13. April 2010 as there is something wrong with the S21 shes issued. I'm now really worried as dont know what this means for us. Has she served the S21 correctly and will the judge just give us 14 days to leave? PLEASE HELP!!!!

Sarah

Is the tenancy an AST in England or Wales?

Was a tenancy deposit taken and protected in a scheme? (If not, then any s21 she serves will be invalid anyway).

If so, then still don't panic - it is my understanding that you can counterclaim for disrepair, which if agreed by the judge, can prevent her being granted possession until she sorts the repairs.

Ultimately she probably will get possession so it is important to keep looking for another property. Will the council not house you if you are required to leave your current home?

boughtonsarah39
20-03-2010, 19:58 PM
Its an AST in England.

No deposit was taken. She took 2 monhs rent in advance instead.

mind the gap
20-03-2010, 20:05 PM
No deposit was taken. She took 2 monhs rent in advance instead.

By that, do you mean that you paid two months up front and no more until the third month's rent fell due, OR were you expected to start paying rent for the 2nd month, with her 'holding over' an amount equivalent to one month's rent?

This may be significant!

boughtonsarah39
20-03-2010, 20:10 PM
I paid 2 months rent in advance on 31. October when we signed and dated the tenancy. She was adament that the tenancy was to run from 11. October as this was the original date we were supposed to move in and the agreements had already been drawn up(she delayed not us).
We paid AGAIN on the 11. November and every month on the 11 after that.
So, in effect we paid three months rent within the first 2 weeks!!
All it states on our agreement is one month in advance and one month to be held in advance
Where it states deposit shes put n/a

Am I wrong in believing that the S21 should have stated periodic tenancy and not fixed term tenancy or is irrelevant? We've only ever signed the one agreement.

mind the gap
20-03-2010, 22:09 PM
There appear to be a number of reasons why your LL's s21 notice may have failed.

First, the 'two months rent in advance' or at least part of it, sounds to me to be legally a deposit and would I think be viewed as such by a court. A s21 notice is invalidated by non-protection of a protectable deposit.

Second, you are clearly not still in the fixed term of your tenancy unless you have renewed your tenancy agreement at some point (ie signed a new contract). Have you done so? If not, then the notice may well be invalid because it is incorrectly filled in.

Third, if your defence included a claim for disrepair, that may have prevented it being successful for your LL - but it does not sound as though you used that defence (did you? You could!)

I strongly recommend you get some legal help and representation as you would seem to have a good case for scuppering her application for a possession order on 13th April.

Alternatively, you could use the reasons I have explained above to bring pressure to bear on her to drop the application for possession and to allow you to remain until you have found somewhere else. If I am correct about the deposit issue, you could even sue her for non-protection and be awarded 3x the deposit's value - but it is not straightforward and I think you need to get proper legal help. You may qualify for Legal Aid.

Others will I am sure offer other perspectives/suggestions. Good luck.

boughtonsarah39
20-03-2010, 22:41 PM
Thank you so much for your help.

No, we havent signed another agreement. Our "fixed term" expired in April 2009, we've been on a periodic tenancy ever since.

I'll find out about the deposit issue but as shes clearly stated that its not a deposit i'm not sure where we'll stand.

In the defence, I did state about gas safety certificate, no EPC, BUT didnt mention damages as such. Did make it clear that environmental health have been involved but didnt mention why.

Will I be allowed to adjust/update my defence before the hearing takes place or did I only have the 14 days specified originally to submit my defence??

Snorkerz
20-03-2010, 23:54 PM
The reason you have a court hearing is because you defended the application, if you had not done so (and it seems you were right to do so) then the decision would have been made without a hearing.

Not having found somewhere else is not likely to be an effective defence - and even if it is, will gain you only an additional 4 weeks or so at the most.

The advance rent Vs deposit issue seems to be your strongest suit - any money that you pay and don't get something in return for is a deposit. When you paid your 1st 2 months rent, you got the 1st months accommodation, but then had to pay again for the 2nd month - so the 2nd lot of money was kept as a 'deposit'.

If a deposit is taken and not protected, the section 21 process can not be used - the notice will be invalid.

I am not sure if you can amend your defence, but I do know that the court has the power to allow you to amend your defence! So you need to write to the court asking for permission to amend your defence, and including the amended defence. Best to do this as 2 separate documents - sending 3 copies of the defence. A judge will look at your reasons for wanting an amendment, and if he/she agrees, the amended defence will be allowed.

boughtonsarah39
21-03-2010, 00:22 AM
You say to do this as two separate documents and 3 copies of the defence. What do you mean by that?

boughtonsarah39
21-03-2010, 00:39 AM
Snorkerz, I'll do that now.

P.Pilcher
21-03-2010, 14:10 PM
Provided that the court finds that your landlady has accepted a deposit, which from what you say they should, the entire section 21 notice will be declared invalid so your landlady will have to protect the deposit and issue another notice. This will give you a further 2 months after the court date.

P.P.

boughtonsarah39
25-03-2010, 02:22 AM
thank you so much for your help.
What would I use a form N244 for?? Someone else said I need to fill one of these in and send it to the court. Is it to be able to amend my defence??
Sarah

Ericthelobster
25-03-2010, 08:10 AM
I think you should be clear about one thing, mentioned earlier: whatever strategy you come up with is just going to delay repossession, not prevent it: if the LL wants you out then ultimately that's what will happen.

If you're OK with that, and having a bit more time will genuinely help you find a new home, then fine; but I can't help feeling that in reality you'll expend an awful lot of time, energy and stress in fighting this, and will then find yourself in exactly the same position in a few months time when the inevitable happens.

boughtonsarah39
25-03-2010, 15:48 PM
I'm aware that if the correct procedures are followed then the judge has no choice but to grant repossession as its ultimately her house. However, at present we have no where else to go and are not able to save a deposit/rent in advance in the time scale we have. A few more months will give us more time to save and move.