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View Full Version : n5b form rejected by court as s21 deemed invalid - can anyone help?



nessa
22-12-2011, 13:36 PM
Hi Guys

Hoping someone can help.

AST ended on 12 November. s21 issued on 15 September to expire after 18th November. Hand delivered to house on 15 September at 9.01am & posted thru letterbox. Took a witness with me, got them to sign the witness statement - notice serving form off this site. Also posted by first class post from 2 different post offices on 15th.

My ast states 'if any notice is sent by post it is deemed to have been served 48 hours after it was posted'.

Put on the n5b form were it states it was served by: 's21 notice was served by landlord (Miss X) on the tenant (Miss Y) at the rental address through the letterbox. A witness to this serving was present at the time (Mr Z). A witness statement signed by Mr Z is attached (Marked C1). Also the notice was served from 2 different post offices, by first class post. Certificates of posting attached (marked C1). These are deemed served in accordance with section 2.3 of the tenancy agreement.'

Just phoned the court now and the receptionist has said the s21 is deemed invalid as the ast expired on the 12 November, the s21 was dated 15 September for expiry on 18 November therefore it is defective.

Can anyone advise on the error, as I thought all seemed fine.:(doh):

jjlandlord
22-12-2011, 14:19 PM
If the notice was deemed invalid because of the expiry date, I would point out to the court that a s.21 notice served during the fixed term under s.21(1) does not have to expire at the end of a tenancy period (only notices served in a periodic tenancy under s.21(4) must follow this rule).

In the circumstances it might have been easier to have the notice expire on the 12 november, though (provided it was served early enough).

nessa
22-12-2011, 14:31 PM
Thanks for your response jjlandlord - never though of it from that angle. I wouldn't mind but the receptionist quoted it was invalid under s21b so you would think the judge would know.:(doh):

I thought it was rejected more because they had ignored the witness statement for some reason (perhaps because I just pushed it through the letterbox??), and were relying solely on postal dates?

How do point your point out to the court - is it in writing only?

How successful have people been when they have done this is getting the judge to change his mind?

westminster
22-12-2011, 14:57 PM
AST ended on 12 November. s21 issued on 15 September to expire after 18th November. ...


...Just phoned the court now and the receptionist has said the s21 is deemed invalid as the ast expired on the 12 November, the s21 was dated 15 September for expiry on 18 November therefore it is defective.
Can anyone advise on the error, as I thought all seemed fine.:(doh):
I don't see the logic of the explanation - "therefore it is defective" - why "therefore"? Also, it's irrelevant that the s.21 was dated 15th September - it's the date of service which matters.

The notice was served during the fixed term, it gave not less than two months, and expired after the end of the fixed term, therefore it's not defective (or not because of the date it was served or expired).

(It's pretty far fetched, but the only possible explanation I can come up with which might fit is that the court didn't accept the service by hand (for reasons unknown) and also failed to accept that the notice posted on Thursday 15th September 2011 would be deemed served 48 hours later (as per contract) because it was a Saturday, and instead deemed it served two business days later, which would be Monday 19th September, and also didn't include the date of deemed service in the notice period, making the notice period 20th September - 18th November inclusive, just short of two months).

westminster
22-12-2011, 14:59 PM
Thanks for your response jjlandlord - never though of it from that angle. I wouldn't mind but the receptionist quoted it was invalid under s21b so you would think the judge would know.:(doh):
It's s.21(1)(b).

jjlandlord
22-12-2011, 15:16 PM
failed to accept that the notice posted on Thursday 15th September 2011 would be deemed served 48 hours later (as per contract) because it was a Saturday, and instead deemed it served two business days later, which would be Monday 19th September, and also didn't include the date of deemed service in the notice period, making the notice period 20th September - 18th November inclusive, just short of two months).

That'd make more sense indeed as a reason to reject it.

nessa
22-12-2011, 15:32 PM
Thanks guys for taking time out to respond.

Where do I go from here, would you suggest?

bubble
22-12-2011, 17:05 PM
With regards to weekend scenario. If a contract was to start on 01/01/2010 and end on 31/06/2010 if a section 21(4)(a) was therefore served if the expiry of 31st of a month (day before rent is due) fell on a weekend will a judge deem this invalid? Thus, will another month's notice have to be given to ensure the day before rent is due is not on the weekend?

alanvincent
22-12-2011, 17:50 PM
I had exactly the same scenario about a month ago. I was given a date to attend court on my returned N24 form (General form of Judgment or Order) I turned up at court explained the situation same as outlined above by jjlandlord and received an apology and my order for possession. District Judge blamed the Deputy District Judge for not knowing that there are two procedures, fixed term and periodic. Go figure

nessa
22-12-2011, 18:40 PM
Thanks Alan - that has made me feel much better.

Have not had the letter from the court as yet - the lady I spoke to on the phone today told me in would go out in todays post so hoping the Christmas post is forgiving(!), it will get to me tomorrow. The receptionist was reading from her online notes so am not sure the letter will tell me anything more, but she never mentioned a court date. All she said was if I was unhappy(!)and disagreed to write a letter to the court for the judge to look at the forms again.

Not sure what to do.

Does anyone think its worth doing this?
If so, any ideas what the format of the letter should be?
Anyone done this and had success?

Apologies for all the questions.

westminster
22-12-2011, 21:07 PM
With regards to weekend scenario. If a contract was to start on 01/01/2010 and end on 31/06/2010 if a section 21(4)(a) was therefore served if the expiry of 31st of a month (day before rent is due) fell on a weekend will a judge deem this invalid? Thus, will another month's notice have to be given to ensure the day before rent is due is not on the weekend?
There's no problem with a notice expiring at the weekend. It's the date of service which might be at issue.

westminster
22-12-2011, 21:10 PM
That'd make more sense indeed as a reason to reject it.
But still rather far fetched, to suppose that the court would not accept service by hand, on a weekday, with a witness...

westminster
22-12-2011, 21:18 PM
The receptionist was reading from her online notes so am not sure the letter will tell me anything more, but she never mentioned a court date. All she said was if I was unhappy(!)and disagreed to write a letter to the court for the judge to look at the forms again.

Not sure what to do.

Does anyone think its worth doing this?
If so, any ideas what the format of the letter should be?

Yes, it's worth a go, and there is no format that the letter has to comply with.

Do as the woman said and write a letter asking the judge to look your claim again. State the reasons why your notice complies with s.21(1)(b) - i.e. that it gave the tenant not less than two months' notice (because it was served by hand on 15th September and expired 'after 18th November' - notice period therefore 16th Sept - 18th Nov inclusive), and that it also expired after the end of the fixed term.

Here's a link to s.21 if you want to quote it (s.21(1) only) in the letter...

http://www.legislation.gov.uk/ukpga/1988/50/section/21

nessa
23-12-2011, 15:19 PM
Many thanks for your advice Westminster - a huge help as always!

Just received the letter from the court. It reads

Claim struck out - The s21 is defective. Tenancy expires on 12 Nov, notice served 15 Sep,expiring 18 Nov, therefore defective.

So its just as the receptionist advised, and gives me little clue as to what the problem is.

My gut feeling is that the judge has mistaken it for a s21(4), as it makes no mention that hand delivery/witness statement is unacceptable......???

westminster
23-12-2011, 21:07 PM
The letter from the court differs slightly to what you wrote before, insofar as it says the notice was served (not dated) 15th Sept. Makes it even more mysterious as to what the judge thinks is wrong, if he accepts that the notice was served that day.

One can only suppose that the judge may be inexperienced in this particular field.

Nevertheless, no point in trying to second guess what the judge's reasons are when you write the letter, just explain how the notice complies with s.21(1) and ask the court to re-examine your claim.

nessa
23-01-2012, 09:53 AM
Hi Guys

Sorry to ressurect this now oldish thread. However just to let everyone (and the wonderful Westminster) know, wrote my letter to the judge, posted it 28 December, and finally got my court order through on Saturday (odering the defendant pays costs also, although I know I will be lucky to get anything.) - hoorah!

Question is - what now?

My solicitor says to write a letter to the tenant asking them what they intend to do, seeing as a court order has been granted and I have had no prior indication that she is moving out. (BTW the tenant is on HB, and looking to the council to re-house her. I know the council don't do anything until a court order is received so in this instance would a letter be necessary?)

Also do I need to apply for a warrant of possession straightaway?

Thanks

Nessa

thesaint
23-01-2012, 11:54 AM
Take a copy of the court order to the housing benefit department and get a receipt for it.

nessa
23-01-2012, 12:39 PM
Thanks for your kind reply thesaint - so you are suggesting holding off with the warrant for possession and wait and see what hb dept do?

westminster
23-01-2012, 12:49 PM
I have no experience of eviction procedure, but I do know that the tenancy does not end until the day the bailiff executes the warrant of possession, so it's the only way to ensure that the T goes and that the tenancy has legally ended.

I gather from other threads that you have to wait until after the date of possession before you can apply for the bailiff to execute the warrant (but wait for others to confirm).

nessa
23-01-2012, 18:11 PM
Thanks Westminster - will wait for confirmation from others.

I have tried to research myself but still not clear on next steps, and also whether I should inform the council?

westminster
23-01-2012, 19:57 PM
I have tried to research myself but still not clear on next steps, and also whether I should inform the council?
You complete and submit form EX325 to the court after the possession date has passed.

I've no idea about the council, or why thesaint advised contacting them, but it has no relevance in terms of ending the tenancy. Its only role would be finding a new place for T to go. If T has any sense, she should contact the council herself. It's not your problem if the bailiff evicts T and she has nowhere to go.

Snorkerz
23-01-2012, 22:37 PM
I agree with Westminsters information - the N325* can be submitted once the possession date has passed. Sadly the fee is £110 :( http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n325_1010.pdf It can take a few weeks for the bailiffs to call, depending on how busy your local court is. It has been my experience that you can not contact bailiffs in the day time, but if you call around 8am then you have a chance of talking to someone to see if you can be squeezed in ASAP.

thesaint used to work in his local councils HB department (Liverpool iirc) and I have had this discussion with him in the past. He is of the opinion that the landlord has an obligation to advise them of any circumstances that may change the tenants entitlement. Whilst that is probably true, it is only likely to be an issue if the landlord receives the LHA direct and is paid benefit for any period that the tenant isn't entitled to.

A copy of the possssion order to the 'Housing Department' (rather than the Housing Benefit Department) may also trigger an earlier re-housing - every day matters and once the PO is issued, the council know they are going to have to act eventually (as opposed to a s21 notice which may be an empty threat)

* I think Wesminsters use of ex325 is because I have previously used the wrong form number - sorry.

nessa
24-01-2012, 09:29 AM
Thanks Westminster and Snorkerz for yor helpful replies.

I did get contacted by the housing department (not benefits) once I had issued my s21 (which they believed to be invalid) so I will email them today with an update. I do get housing benefit paid direct so as you say Snorkerz I guess I am responsible for informing them of any changes.

So basically other than informing the council and having my form n325 filled in there is little I can do before the possession date?

ah84
24-01-2012, 10:55 AM
I had a tenant who wanted to be re-housed but council did nothing until the day beefore bailiffs were due. I have heard this is common practice.

If your tenant is a sane person and unlikely to resist the bailiffs then it is worth going to the court early to speak to the bailiffs and see if they can fit you in.In my case the bailfiffs did not actually need to turn up because the council acted the day before, but I very much doubt the council wll do anything so as soon as posession date passed fill in the form and once bailffs have received it go and try and get an earlier appointment if you are in a rush.

thesaint
24-01-2012, 12:23 PM
Thanks for your kind reply thesaint - so you are suggesting holding off with the warrant for possession and wait and see what hb dept do?

No, I am not suggesting that.
If the council have a duty to re-house the tenant, they will do so when they need to, and not a moment before.

Some councils will actively search to rehouse as soon as the tenant receives notice, some when court papers are filed, some when a court date has been set, some when a possession date has been set, etc etc.
Sitting and hoping the tenant does it is a waste of time, and it takes very little of yours(time).

Keeping the council informed of each step will get the tenant out at the earliest oppurtunity, as I guess that is your main objective.
Waiting for bailiffs is the longest route to the same point.

I hope that is easy to understand.

nessa
24-01-2012, 15:40 PM
Thanks for all your helpful replies guys.

Have sent my email to the council, will wait and see if I hear anything. However will presume, unless I hear to the contrary, that I am proceeding to getting the bailiffs to act once the possession date has expired.

Thanks once again :(y):

nessa
01-02-2012, 15:11 PM
Hi everyone

Apologies (again!) for resurrecting this old thread.

Heard from the council today, who said they are still reviewing the case as they feel she has made herself intentionally homless (and they tell me she has a history of not paying her rent in prior properties). However they will try and address her case quickly, and if no houses come along put her in temp accomodation in the meantime. They have said that they wont do anything until the bailiffs date is set, and that they will advise her to try for the 42 day extension, although they feel she will only end up getting an extra 28 days?:(:

The possession order expires tomorrow so I was going to apply to the bailiffs on Friday.

Anyone had any experience of the tenant applying to court for an extension at this late stage?

If so, what is the process, how do I find out whether they have done this, and is there anything I can do about it?

Many thanks

Nessa

Interlaken
01-02-2012, 16:09 PM
I have had one person appeal and win. She had an 11 year old child (she was a single parent) and it was just before Christmas - talk about milk it. LA rehomed her outside the boro. Even on the last day she accused me of harrassment then she left locked up and put keys back through letterbox. Also left a dead car in someone else's space. Lovely person.........

nessa
01-02-2012, 17:04 PM
Thanks for your reply Interlaken - sorry to to hear about your case....some people eh?

This tenant is a single parent, has 2 children, the youngest is 18 months old....so I guess that does not bode well for me, and the council seem fairly certain she will get an extra 28 days if she chooses to go down that route.

Does the judge apply any criteria to who he allows to stay or not, or why?

Is it more likely that the extension will be granted than not?

If granted, who lets the bailiffs know?

Thanks

Nessa