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NinaSagoo
05-10-2011, 00:06 AM
Hi all,
I applied for a Posession Order via Accelerated Posession sec21a, and have today received a letter from the court stating they want to have a hearing and the reason is that there is confusion over the identity of the landlord in the Tenancy Agt, The Notice and the Claim Form. The facts are:
Tenancy Agt: Has Letting Agent name, after which tenancy is now Periodic
Notice: Served by myself and mother (who owns the property and rent is paid directly to by council)
Claim form: States my name as 'Mrs' instead of 'Miss'

My query is:
1. Would this be a reason to invalidate the notice or application?
2. Would it be better to take a lawyer, and if so, any recommendations?

Note: Since the Sec21 expired, these DSS tenants are in 3 months arrears, the condition of the property has severly deteriorated, the neighbours are complaining, among other issues. They have an infant, that they constantly use as an excuse for sympathy, and I wouldn't be surprised if they try that in court too to gain more time.

Snorkerz
05-10-2011, 11:59 AM
Why was the agent shown as the landlord? Are you letting the property to them and they are subletting to the tenant?

The Miss/Mrs issue shouldn't be a problem.

If you are succesful, the maximum time the judge can give is 42 days.
The condition of the property, or unpaid rent is irrelevant so far as section 21 is concerned. You may have a legal obligation to keep certain parts of the property in good order.

westminster
05-10-2011, 23:56 PM
Hi all,
I applied for a Posession Order via Accelerated Posession sec21a, and have today received a letter from the court stating they want to have a hearing and the reason is that there is confusion over the identity of the landlord in the Tenancy Agt, The Notice and the Claim Form. The facts are:
Tenancy Agt: Has Letting Agent name, after which tenancy is now Periodic
Notice: Served by myself and mother (who owns the property and rent is paid directly to by council)
Claim form: States my name as 'Mrs' instead of 'Miss'

My query is:
1. Would this be a reason to invalidate the notice or application?
2. Would it be better to take a lawyer, and if so, any recommendations?
I'm not surprised that there is confusion.

If your mother owns the property, then she should be named as landlord on 1) the tenancy agreement, 2) the s.21 notice and 3) the possession claim. You say you applied for possession and that the claim names you as claimant - but if you are neither the property owner nor the party named as landlord on the tenancy contract, you have no claim for possession against the tenant. Nor can you act on your mother's behalf in legal proceedings if you are not a qualified lawyer.

Whatever it is you've done, it sounds like there's a good chance you/you mother have messed it up and that the court won't grant a possession order (even if you get the smartest lawyer in town to speak for you at the hearing - however it might be an idea to talk to a specialist in landlord/tenant law in order to sort out the mess, generally speaking).

NinaSagoo
06-10-2011, 00:46 AM
Why was the agent shown as the landlord? Are you letting the property to them and they are subletting to the tenant?

The Miss/Mrs issue shouldn't be a problem.

If you are succesful, the maximum time the judge can give is 42 days.
The condition of the property, or unpaid rent is irrelevant so far as section 21 is concerned. You may have a legal obligation to keep certain parts of the property in good order.

I seem to have been the victim of a clueless agent. They used one of the tenancy agreements available from a stationery shop! They failed to state that they are acting on behalf of the Landlord. However, I have an agreement with WLI in which I authorise them to act on my behalf, and will use that as supportive evidence.
I have also written to the agent to accompany me to the hearing to clarify that this was an administrative error and that under no circumstances were their intentions to pose as the owner/landlord but simply acted on behalf of the landlord to their best judgement. All parties have been aware from day 1 of the tenancy that WLI are not the landlord and hopefully an explanation of this should prove satisfactory.

westminster
06-10-2011, 00:56 AM
The agent's errors (if any) are unlikely to be related to using a contract supplied by a stationery shop. There are many companies who supply standardized and entirely legal/satisfactory tenancy contracts to high street shops.

You say the agent was authorized to 'act on your behalf' but you are not the owner/landlord of the rental property so you weren't authorized to instruct the agent.

If you do not own the rental property, then you have no part in this - it's absolutely nothing to do with you and you can't serve notices or claim on behalf of the landlord or enter into an agreement with the agent. At best, you might appear as a witness in court as to the facts relating to the contract between landlord or agent and the tenant.

NinaSagoo
06-10-2011, 01:02 AM
I'm not surprised that there is confusion.

If your mother owns the property, then she should be named as landlord on 1) the tenancy agreement, 2) the s.21 notice and 3) the possession claim. You say you applied for possession and that the claim names you as claimant - but if you are neither the property owner nor the party named as landlord on the tenancy contract, you have no claim for possession against the tenant. Nor can you act on your mother's behalf in legal proceedings if you are not a qualified lawyer.

Whatever it is you've done, it sounds like there's a good chance you/you mother have messed it up and that the court won't grant a possession order (even if you get the smartest lawyer in town to speak for you at the hearing - however it might be an idea to talk to a specialist in landlord/tenant law in order to sort out the mess, generally speaking).

Agreement with agent- Signed by myself,as 'acting landlord', as authorised by my mother who is the lawful owner of the property.
Tenancy Agreement- Signed by agent (admin error as they signed as the landlord, but hopefully this can be explained in court)
Notice- Issued by myself and mother, both signed
Claim- Issued by myself and mother, both noted as claimants
Apologies, when I said notice & claim was issued by me, I meant we(myself and my mother).

My mother and I will attend the court hearing together. I'm hoping the judge is just looking for clarification and will use his discretion to grant possession.

Starting to feel like it is all about to go pear-shaped?!:-(

NinaSagoo
06-10-2011, 01:20 AM
The agent's errors (if any) are unlikely to be related to using a contract supplied by a stationery shop. There are many companies who supply standardized and entirely legal/satisfactory tenancy contracts to high street shops.

You say the agent was authorized to 'act on your behalf' but you are not the owner/landlord of the rental property so you weren't authorized to instruct the agent.

If you do not own the rental property, then you have no part in this - it's absolutely nothing to do with you and you can't serve notices or claim on behalf of the landlord or enter into an agreement with the agent. At best, you might appear as a witness in court as to the facts relating to the contract between landlord or agent and the tenant.

What about if I appear in court as the 'acting landlord', and my mother is present at the same time to confirm she is happy for me to speak on her behalf? She doesn't speak English very well, so I have assisted her all through with the tenancy, as the acting landlord.

westminster
06-10-2011, 01:22 AM
Agreement with agent- Signed by myself,as 'acting landlord', as authorised by my mother who is the lawful owner of the property.
Not part of the tenancy contract.


Tenancy Agreement- Signed by agent (admin error as they signed as the landlord, but hopefully this can be explained in court)
It may mean that the agent is the landlord.


Notice- Issued by myself and mother, both signed
You're not the LL, so why are you serving notice on a person who's nothing to do with you?


Claim- Issued by myself and mother, both noted as claimants
You're not the claimant, as you're not the owner/landlord of the property. The court may overlook this in terms of the fact that your mother is a co-claimant, so her claim may stand.


My mother and I will attend the court hearing together. I'm hoping the judge is just looking for clarification and will use his discretion to grant possession.
You may attend together but you cannot speak on behalf of the claimant. From what you've described I think the court is quite likely not to make a possession order. Frankly, if I were the judge presented with this case I wouldn't make one. It's really not clear who the landlord is/who's entitled to apply for possession.

I think you'd be best off letting your mother deal with her own tenants, because interfering can be really counterproductive.

westminster
06-10-2011, 01:33 AM
What about if I appear in court as the 'acting landlord', and my mother is present at the same time to confirm she is happy for me to speak on her behalf? She doesn't speak English very well, so I have assisted her all through with the tenancy, as the acting landlord.
Unless you are legally qualified to represent people in court, and have a 'right of audience', you cannot appear on behalf of your mother - it would be a criminal offence to do so. You must pay a lawyer to do it. See:

http://www.barcouncil.org.uk/about/find-a-barrister/public-access-directory/

NinaSagoo
06-10-2011, 01:51 AM
The agent's errors (if any) are unlikely to be related to using a contract supplied by a stationery shop. There are many companies who supply standardized and entirely legal/satisfactory tenancy contracts to high street shops.

You say the agent was authorized to 'act on your behalf' but you are not the owner/landlord of the rental property so you weren't authorized to instruct the agent.

If you do not own the rental property, then you have no part in this - it's absolutely nothing to do with you and you can't serve notices or claim on behalf of the landlord or enter into an agreement with the agent. At best, you might appear as a witness in court as to the facts relating to the contract between landlord or agent and the tenant.

I don't refute that the standardised contracts available in shops are legal, I do however believe my agent failed to include the actual Landlord's name in the contract or even to indicate they act on behalf of the landlord, and not state that they are the landlord. They should have included the Landlord's details in the contract or provided the tenants with a S.48 giving them the actual Landlords details.

I do see your point. I hope the judge will see take into consideration that my mother's name and signature is on the notice and also on the claim.

So, I will not be able to speak on the matter in court? Or perhaps I could state that I have assisted her during the process and provide a witness statement?

mariner
06-10-2011, 01:56 AM
Only your mother or her appointed Solicitor can address the Court.
Acting LL would appear to have no legal standing, you may be acting as her agent but so is LA, so why 2 agents? You can advise your mother but your sig carries no weight and you are not a claimant.
I suggest your mother appoints a solicitor to represent her in Court to explain the confusion. Both mum, you and LA can brief him pre-hearing. To date, Court has not rejected the claim but will do so if not satisfied by prof explanation.

English jurisprudence may seem perverse and sustains many careers & websites but it does serve a public need.

NinaSagoo
06-10-2011, 02:21 AM
Only your mother or her appointed Solicitor can address the Court.
Acting LL would appear to have no legal standing, you may be acting as her agent but so is LA, so why 2 agents? You can advise your mother but your sig carries no weight and you are not a claimant.
I suggest your mother appoints a solicitor to represent her in Court to explain the confusion. Both mum, you and LA can brief him pre-hearing. To date, Court has not rejected the claim but will do so if not satisfied by prof explanation.

English jurisprudence may seem perverse and sustains many careers & websites but it does serve a public need.

I read this in a different thread:
"You are allowed what is known as a McKenzie Man(or woman) to accompany you to court to support and help and advise you..Generally courts will allow McKenzie or Lay Reps to address the court on behalf of the claimant or defendant but they do not have any rights of audience except where the claimant or defendant appears in person."

westminster
06-10-2011, 13:14 PM
They should have included the Landlord's details in the contract or provided the tenants with a S.48 giving them the actual Landlords details.

S.48 Landlord and Tenant Act 1987 says that the LL must give the T an address for serving notices in England/Wales. It does not have to be the LL's actual address.

http://www.legislation.gov.uk/ukpga/1987/31/section/48


I read this in a different thread:
"You are allowed what is known as a McKenzie Man(or woman) to accompany you to court to support and help and advise you..Generally courts will allow McKenzie or Lay Reps to address the court on behalf of the claimant or defendant but they do not have any rights of audience except where the claimant or defendant appears in person."
This only applies in the small claims track.

http://www.legislation.gov.uk/uksi/1999/1225/article/3/made

NinaSagoo
06-10-2011, 13:46 PM
S.48 Landlord and Tenant Act 1987 says that the LL must give the T an address for serving notices in England/Wales. It does not have to be the LL's actual address.

http://www.legislation.gov.uk/ukpga/1987/31/section/48


This only applies in the small claims track.

http://www.legislation.gov.uk/uksi/1999/1225/article/3/made

Thank you, your comments have been very helpful. We will be submitting supportive documentation prior to the hearing so the judge may have time to consider this, and I will be accompanying my mother as a witness.

westminster
06-10-2011, 15:01 PM
If your mother's English is very poor, then the court may well allow you to speak for her - but you'll need to ask for permission, failing which it may be a case of simply telling your mother what to say.

midlandslandlord
06-10-2011, 22:59 PM
Is there anything going on here such as a Power of Attorney?

I don't know what effect that has on Court Representation.

ML

mariner
07-10-2011, 01:03 AM
"On the small claims track, any person may exercise rights of audience, under the Lay Representatives (rights of audience) Order, but only if the party is present at the hearing.[6] Other persons may not exercise rights of audience but may sit with a litigant in person and offer quiet assistance as a McKenzie friend."

McKenzie friends can be used in other lower Courts where the defendent is conducting their own defence (litigant in person). As westminster suggests a MF can only address the Court with Judge's consent and should not question witnesses. Given OP is directly involved with case, I suggest mother should engage soicitor for proceedings.

NinaSagoo
09-10-2011, 18:34 PM
Is there anything going on here such as a Power of Attorney?

I don't know what effect that has on Court Representation.

ML

Yes, my mother and I will attend court together where she will confirm that she gave me Power of Attorney.

I'm struggling to find a solicitor so close to the hearing. However, we will submit a witness statement 2 days in advance of the hearing so as to make it easier for my mother.
We will ask for permission if I could speak if the judge needs anything to be explained as he will clearly see my mother wont be able to explain properly.

NinaSagoo
09-10-2011, 18:35 PM
"On the small claims track, any person may exercise rights of audience, under the Lay Representatives (rights of audience) Order, but only if the party is present at the hearing.[6] Other persons may not exercise rights of audience but may sit with a litigant in person and offer quiet assistance as a McKenzie friend."

McKenzie friends can be used in other lower Courts where the defendent is conducting their own defence (litigant in person). As westminster suggests a MF can only address the Court with Judge's consent and should not question witnesses. Given OP is directly involved with case, I suggest mother should engage soicitor for proceedings.

Thanks. I am listed as a co-claimant with my mother.

NinaSagoo
09-10-2011, 18:37 PM
If your mother's English is very poor, then the court may well allow you to speak for her - but you'll need to ask for permission, failing which it may be a case of simply telling your mother what to say.

Thanks. Yes, will hand in a witness statement and let her know what needs to be said. Hopefully not much as all details are in the witness statement.

westminster
10-10-2011, 15:18 PM
Yes, my mother and I will attend court together where she will confirm that she gave me Power of Attorney.
Have you/your mother signed a legal document giving you power of attorney?


I'm struggling to find a solicitor so close to the hearing. However, we will submit a witness statement 2 days in advance of the hearing so as to make it easier for my mother.
The deadline for submitting evidence/statements is likely to be at least a couple of weeks before the hearing.


Thanks. I am listed as a co-claimant with my mother.
As previously explained, you cannot claim against the tenant as you are not the landlord.

NinaSagoo
14-10-2011, 17:10 PM
The witness statement was with the Judge 2 days prior to the hearing. The hearing was held today. I attended court with my mother and the Letting Agent. The tenants (Defendants) didn't show up. The Judge has granted possession in 14 days. Relieved! Thank you all for your help!

mariner
14-10-2011, 18:21 PM
If Ts did not turn up, are they still in property?
OK you cannot enter for 14 days except to secure prop id nec.

theartfullodger
14-10-2011, 18:28 PM
Congrats anyway Nina: Result!!

NinaSagoo
21-10-2011, 01:27 AM
They are still in the property. They called today to express their 'shock' of having to pay the court fee! The nerve! They wont be leaving until bailiffs show up, and they re under the assumption that the bailiff cannot gain access if they refuse to open the door. I will be at the property with spare keys to allow the bailiff to enter. I've read elsewhere that in the case of an eviction the bailiff can force entry?

Also, in your opinion, if the tenants apply to delay the eviction (they have an infant), what are the chances the judge would allow them more time, given that its been an Accelerated Possession route?

NinaSagoo
21-10-2011, 01:28 AM
Nice one! The nightmare will officially be over the day I see them leave!

Snorkerz
21-10-2011, 08:36 AM
They are still in the property. They called today to express their 'shock' of having to pay the court fee! The nerve! They wont be leaving until bailiffs show up, and they re under the assumption that the bailiff cannot gain access if they refuse to open the door. I will be at the property with spare keys to allow the bailiff to enter. I've read elsewhere that in the case of an eviction the bailiff can force entry?

Also, in your opinion, if the tenants apply to delay the eviction (they have an infant), what are the chances the judge would allow them more time, given that its been an Accelerated Possession route?The maxium time a judge can give is 6 weeks, even if they apply for an extension.

It may be an idea to have a locksmith on hand to prevent damage to your property if the lock has been changed. The bailiff can force entry, but you have to be aware this may cause expensive damage.

The bailiff will not proceed if they fear physical violence, but will return with police support.