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tahmur
08-03-2007, 08:33 AM
My letting agent issued the incorrect s21 notice. They issued a s21(1) instead of a 21(4).

As a result the court did not automatically issue a possession order after I submitted the accelerated procedure forms and have now called a court hearing.

My question is, is the judge going to throw the case out on technical grounds, and if so what's the point of the hearing?

No defence is being filed as the tenant wants a council house.

Can I sue my letting agent for anything?

jeffrey
08-03-2007, 09:38 AM
My letting agent issued the incorrect s21 notice. They issued a s21(1) instead of a 21(4).

As a result the court did not automatically issue a possession order after I submitted the accelerated procedure forms and have now called a court hearing.

My question is, is the judge going to throw the case out on technical grounds, and if so what's the point of the hearing?

No defence is being filed as the tenant wants a council house.

Can I sue my letting agent for anything?

Possibly agent is:
i. negligent; and/or
ii. in breach of contract- failure to use proper procedure.

P.Pilcher
08-03-2007, 10:17 AM
It is totally up to the judge. There is no requirement to use the correct form to use the s21 procedure, just that at least two months notice be served (ending on a rent day in the case of a statutory periodic tenancy.)
If you get a judge who is empowered with common sense and you have got your dates right, then he will probably grant the possession order. If the judge is a tenant friendly one, like so many are, he will use every excuse he can not to kick the poor tenant out. At least your judge has not refused your application out of hand and has called a hearing to gain some clarification (or to tell you that you've used the wrong form.) If at the hearing, you politely point out to him that whether the section of the act is correct or not, you have given the correct amount of notice, in writing, and this is, you believe all the law requires.

Let us know how you get on.

P.P.

tahmur
08-03-2007, 10:35 AM
The problem is it had become a statutory periodic tenancy, so the 2 months did not end on a rent day.

So strictly the correct notice had not been given.

By the time of the hearing however, the tenant would have had about 6 months notice!

Is the fact the tenant is not defending it help my case?

Worldlife
08-03-2007, 10:56 AM
Wonder if this situation would have been avoided if the excellent Lawpack Section 21 Notice had been used? This notice is the same for all Section 21 actions.


Expiry date After ............................

or (if this notice would otherwise be invalid) I require possession on the first date after:-
at least two months after the service upon you of this notice, and
(if your tenancy is for a fixed period) a date not earlier than the end of the fixed period. or
(if your tenancy is a periodic tenancy) the last date of a period of your tenancy but no earlier thant the date on which your tenancy could lawfully be ended by a notice to quit


Note that the date specified is not a rent due day but referenced as after the preceding day.

johnboy
09-03-2007, 07:27 AM
Allthough the the s21 doesnt expire on a rent day i beleive it only has to if the start of the 2 months notice is in the periodic period as well.

So if it was a 6 month ast and notice given on month 5 and expires on month 7 it is ok.

But if it is already in periodic when s21 issued it should expire the day before rent due/start day of month

tahmur
09-03-2007, 07:33 AM
It already was in periodic, that's the problem.

It's up to the judge now.

My court case is on 22 March, and I have already issued the correct notice, on a without prejudice basis, which expires in April.

So if the judge throws it out, I can start again in a couple of weeks.

johnboy
10-03-2007, 12:54 PM
let us know how you get on

good luck

PaulF
11-03-2007, 23:20 PM
I have posted this before but there is an article in the Solicitor's Journal in the October or November 2005 Edition by Gary Webber & Daniel Dovar stating that if the incorrect S.21 (1)(b) Notice had been served instead of a (4)(a) during a periodic tenancy then it is not necessarily void, and that a judge should accept it. If you can source a copy of the article you could use it in court if necessary. It might even be on this site already so look in the home page under "articles" funnily enough!

Worldlife
11-03-2007, 23:28 PM
I have posted this before but there is an article in the Solicitor's Journal in the October or November 2005 Edition by Gary Webber & Daniel Dovar stating that if the incorrect S.21 (1)(b) Notice had been served instead of a (4)(a) during a periodic tenancy then it is not necessarily void, and that a judge should accept it. If you can source a copy of the article you could use it in court if necessary. It might even be on this site already so look in the home page under "articles" funnily enough!

Agree Paul's post is a key to resolving the OP's problems but these difficulties can be avoided.

In my view the Lawpack S21 notice, that does not stipulate which subsection it is using and has "(if this notice would otherwise be invalid)" proviso, is probably less liable to errors than those designed around the subsections.

tahmur
12-03-2007, 08:10 AM
Has anyone got a copy of this article in Solicitor's journal? You have to be a subscriber to download it.

jeffrey
12-03-2007, 08:45 AM
Has anyone got a copy of this article in Solicitor's journal? You have to be a subscriber to download it.

Try your local business library or even local law society in nearest town.

tahmur
12-03-2007, 13:02 PM
Just had it faxed from publidher for £17. A rip off, I know!

johnboy
12-03-2007, 16:09 PM
Would it be too much to ask now that you have it to put a copy on the forum????

cheeky i know

tahmur
13-03-2007, 08:03 AM
After spending my hard earned cash I just found a free link to the same article on another website.

http://www.innovativesoftware.net/assuredshortholds21notices.html

Enjoy!

tahmur
13-03-2007, 15:24 PM
Anyone heard of anyone winning their case using the argument in this article?

Poppy
13-03-2007, 15:49 PM
After spending my hard earned cash I just found a free link to the same article on another website.
Doh! There's a lesson learned in web research. Glad you found what you're after.

tahmur
26-03-2007, 10:43 AM
Judge just threw my case out as wrong notice issued.

He was not interested in the article.

He said he had seen article before, but he was only interested in case law.

I will now have to start the whole process again.

Take note - ALWAYS ISSUE THE RIGHT NOTICE!!! AND DON'T RELY ON THE LETTING AGENT - DO IT YOURSELF!!!

P.Pilcher
26-03-2007, 11:28 AM
Sorry to hear it. Of course the appeal court would appear to take a more pragmatic view of such a case and would possibly find that as the tenant has had far in excess of the minimum notice required by law, the court should issue the possession order forthwith, but as I am sure Jeffrey and his colleagues will tell you, noting in law is certain! The cost of appealing is also a significant factor.

I suppose that if you had been represented in the court by a barrister, and a senior one at that, the judge might have listened, but the cost!!

Oh well, better luck next time and a lesson for us all.

P.P.