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View Full Version : Have you ever had a S21 notice successfully challenged in court?



Miffy
17-02-2007, 04:48 AM
LL's who have issued S21 notices (especially Sword of Damocles ones) HAVE YOU EVER HAD THESE SUCCESSFULLY CHALLENGED IN COURT or did you win every time?

Please lets not make this into a debate on the rights and wrongs of S21/SoD (there's a big thread about that just near here :) ). I would just like to know the practical experiences of those who have used them, in light of theories that they might be easily challenged as invalid even if you have your dates right. (Again, particularly SoD S21's).

Ruth Less
17-02-2007, 23:02 PM
Hi Miffy :)

I wonder if it would be better to put this query on the other thread instead so that we can keep the whole debate together? This is part of the other debate and something I would like answered too.

Do you fancy posting it there and directing people there instead?

I think you should also ask for any challenged at all so that there was a delay for a hearing rather than accelerated procedure, and those that were not successful too.

Bel
18-02-2007, 12:04 PM
LL's who have issued S21 notices (especially Sword of Damocles ones) HAVE YOU EVER HAD THESE SUCCESSFULLY CHALLENGED IN COURT or did you win every time?

I like this thread

http://www.landlordzone.co.uk/forums/showthread.php?t=278&highlight=sword+lawstudent

I think lawstudent wins the argument; i.e. judges may make mistakes (can happen over any point of law) but a full challenge has never been successful against a SoD S21. (up to the date of the thread that is)

MrShed
18-02-2007, 12:29 PM
Bel - excellent thread to link to. That thread is essential reading for anyone wishing to find out the exact legalities of SoD S21 notices, with very good info from both lawstudent(who incidentally I haven't seen around for ages!) and Paul_F in particular. Although Andy's posts just go to show that judges can and do get it wrong!

I think this post in that thread is of particular interest:

http://www.landlordzone.co.uk/forums/showpost.php?p=1776&postcount=36

Again Bel excellent link ,well worth bringing to everyone's attention! :)

lorenzo
18-02-2007, 12:35 PM
Ultimately, the tenant should get the hell out as requested. The real issue I think, is the preservation of the 2 months notice.

This what SOD removes.

MrShed
18-02-2007, 12:41 PM
Worth noting that, that thread in mind, the only three legal reasons under which an S21 can fail(as far as I can see)are:

- Incorrect dates/other information on the notice.

- The notice wasnt issued "without reservation" - ie it was at any point conditional. So as said elsewhere recently, if the notice is issued saying "we will not use it if you are good tenants", it is automatically invalid.

- If a new tenancy is offered - but I hope no-one is stupid enough to even try in this situation!

johnboy
18-02-2007, 14:59 PM
What if you issue a s21 and tell tenant it will be inforced if arrears are not paid by certain time, if you then start taking payments towards arrears are you entering into a new agreement and the s21 cant be inforced?

MrShed
18-02-2007, 15:03 PM
I would say that as soon as it is stated that it will be enforced if arrears are not paid by a certain time, you have made the S21 conditional, and hence invalid.

Worldlife
18-02-2007, 15:49 PM
Agree with Mr Shed that putting conditions on the S21 notice would invalidate it.

Seems that johnboy should really use S8 if his objective is merely to recover rent.

Ruth Less
18-02-2007, 19:16 PM
I like this thread

http://www.landlordzone.co.uk/forums/showthread.php?t=278&highlight=sword+lawstudent

I think lawstudent wins the argument; i.e. judges may make mistakes (can happen over any point of law) but a full challenge has never been successful against a SoD S21. (up to the date of the thread that is)



Well that is a good thread and I agree with lawstudent that the S21 has no time limit. lawstudent is defending the S21 on the basis of age, that an S21 remains invalid indefinitely. No one is disputing that now. The thread does however address the issue of what the landlord may do to invalidate the S21, e.g. making it conditional on the tenant's behaviour.

See paul_f's post #36 in the thread:

http://www.landlordzone.co.uk/forums/showpost.php?p=1776&postcount=36

And #39

http://www.landlordzone.co.uk/forums/showpost.php?p=1782&postcount=39

With a SoD S21 the landlord has to somehow let the tenant know it's OK to stay on, or risk the tenant obeying the S21. Thus making it conditional and therefore invalid. After all a tenant should leave on expiry of the S21 and a good tenant will unless given reason to believe otherwise. The landlord doesn't want to evict a good tenant and on day 1 when serving the S21 he doesn't know if the tenant is good or not. Presumably he thinks the tenant will be otherwise why allow the tenancy?

I reckon it'd be easy to prove the landlord made the S21 conditional as I've already said elsewhere.

But ultimately the best defence for a tenant is to make clear they will obey the S21 unless it is properly withdrawn in good time.

PS. Where does it say a full challenge has never been successful against a SoD S21? I don't see that anywhere and even if it did does it say the tenant used the defence of you can't make a S21 conditional?

MrShed
18-02-2007, 21:14 PM
I think what it says is that no legal challenge can succeed unless it is one of the three points I made above, of which the S21 being conditional is one. If one of these three points can be proven, that there SHOULD be no question that this successfully invalidates the S21.

Bel
18-02-2007, 23:01 PM
Hi Ruth; please see my comments in red for points you raised concerning my post
Well that is a good thread and I agree with lawstudent that the S21 has no time limit. lawstudent is defending the S21 on the basis of age, that an S21 remains invalid indefinitely. No one is disputing that now. I was just responding to the OP of this thread; this is no obvious from the OPThe thread does however address the issue of what the landlord may do to invalidate the S21, e.g. making it conditional on the tenant's behaviour.

See paul_f's post #36 in the thread:

http://www.landlordzone.co.uk/forums/showpost.php?p=1776&postcount=36

And #39

http://www.landlordzone.co.uk/forums/showpost.php?p=1782&postcount=39

With a SoD S21 the landlord has to somehow let the tenant know it's OK to stay on, or risk the tenant obeying the S21. Thus making it conditional and therefore invalid. After all a tenant should leave on expiry of the S21 and a good tenant will unless given reason to believe otherwise. The landlord doesn't want to evict a good tenant and on day 1 when serving the S21 he doesn't know if the tenant is good or not. Presumably he thinks the tenant will be otherwise why allow the tenancy?

I reckon it'd be easy to prove the landlord made the S21 conditional as I've already said elsewhere.

But ultimately the best defence for a tenant is to make clear they will obey the S21 unless it is properly withdrawn in good time.

PS. Where does it say a full challenge has never been successful against a SoD S21?I meant that lawstudent points out that judges get points of law wrong in the first instance, which can easily be rectified by taking it to appeal. If no one appeals, then it may slip through the net; but doesn't make it 'right' legally. I don't see that anywhere and even if it did does it say the tenant used the defence of you can't make a S21 conditional?

Ruth Less
19-02-2007, 00:25 AM
- The notice wasnt issued "without reservation" - ie it was at any point conditional. So as said elsewhere recently, if the notice is issued saying "we will not use it if you are good tenants", it is automatically invalid.

This is the one I'd challenge an SoD S21 on. Question is the "we will not use it if you are good tenants" most probably isn't going to be written down, it'll be verbal only from the landlord. So is the onus on the tenant to prove what was said or the landlord to prove it wasn't said.

I've set out how I'd do it here:

http://www.landlordzone.co.uk/forums/showpost.php?p=33830&postcount=119

Do you think such a challenge would stand a chance?

Miffy
19-02-2007, 06:04 AM
Ruth less. I thought if we started a new thread simply on the REALITY (rather than the theory) of how S21's have progressed in the courts, asking for people's real experiences (sort of like a poll) we might attract some swift and to the point answers. I was a bit worried that people with that information might not (still?) be reading the other thread that we hijacked;) .

Everyone. Thanks for your contributions. The links provided are interesting (i did read them previously, I believe) but still address the THEORY of what happens. Does anyone have any real life examples to share (don't have to go into great detail if you don't want; just a quick one-liner would do).

Ruth less has made a convincing case that it seems that a well-advised tenant could always at least claim that they were offered equivocation over the S21 (whether telling the truth or not). If I understand her correctly, she is saying that a court is more likely to believe the tenant if the case looks like a SoD which has continued beyond the initial term. Also, unless the LL had truthfully never made any noises about the S21 being conditional (say on paying the rent the T owes) the LL would have to be prepared to lie in court, as he has invalidated his own notice! Therefore, it seems to me that most bad tenants could probably be got rid of because they don't bother to defend the S21, BUT its a risk because "professional" tenants and anyone prepared to go to court would have a good chance of beating the LL's case.

In the thread we have linked to, it seems that one real life example (Andy Parker) was that the court dismissed his S21. He didn't appeal, so perhaps the court was wrong but nevertheless it was a setback we wouldn't want as a LL issuing a S21.

Has no one else on these boards had to test an S21 (particularly SoD) in court?

MrShed
19-02-2007, 06:41 AM
Ruth, not only do I think it would stand a chance, I think if proven the court would have no option BUT to invalidate the notice. As you rightly highlight, the difficulty is in proving this, as 95% of the time this is only said verbally. I guess the thing to do is for tenants to get this in writing, most agents/landlords probably won't have a problem with this as I am guessing(perhaps wrongly!) that most will not be aware that this invalidates the S21.

lorenzo
19-02-2007, 07:00 AM
Ruth, not only do I think it would stand a chance, I think if proven the court would have no option BUT to invalidate the notice. As you rightly highlight, the difficulty is in proving this, as 95% of the time this is only said verbally. I guess the thing to do is for tenants to get this in writing, most agents/landlords probably won't have a problem with this as I am guessing(perhaps wrongly!) that most will not be aware that this invalidates the S21.

I would/will be writing to the landlord 2 months before s21 expiry asking for written confirmation as to whether the possession notice stands so I can make arrangements to move. Or whether, as indicated verbally, that tenancy may continue if LL is happy for it to do so.

Then it's clear:

1/ I move out
2/ s21 is invalidated

Pretty easy really.

Bel
19-02-2007, 13:35 PM
Ruth less. I thought if we started a new thread simply on the REALITY (rather than the theory) of how S21's have progressed in the courts, asking for people's real experiences (sort of like a poll) we might attract some swift and to the point answers. I was a bit worried that people with that information might not (still?) be reading the other thread that we hijacked;) .



Does anybody have any bright ideas how this sort of info on court cases could be accessed?

Ruth Less
19-02-2007, 15:46 PM
I would/will be writing to the landlord 2 months before s21 expiry asking for written confirmation as to whether the possession notice stands so I can make arrangements to move. Or whether, as indicated verbally, that tenancy may continue if LL is happy for it to do so.

Then it's clear:

1/ I move out
2/ s21 is invalidated

Pretty easy really.

Quite right for a tenant that knows about the SoD. My theoretical example was for the tenant that only found out about the SoD when asked to leave without notice and so they have to put a case together retrospectively.

Ruth Less
19-02-2007, 15:49 PM
The links provided are interesting (i did read them previously, I believe) but still address the THEORY of what happens. Does anyone have any real life examples to share

I've been reading this forum for this subject for months now, and had also seen that thread before. The only real life personal example I recall is Andy Parker's as you mention.

But on the other long thread (I don't think it was a hijack, more a continuation) someone links to another MSE thread where someone else does mention their agent has case law on this. They volunteered to get the examples but haven't yet.

EDIT:
http://www.landlordzone.co.uk/forums/showpost.php?p=33162&postcount=67


(This link is thanks to posters on MoneySavingExpert.com. I'm not sure if I'm allowed to link to the thread, but it's on the renting board and the thread is called "Section 21").

http://forums.moneysavingexpert.com/showpost.html?p=4288979&postcount=145