Section 21b help in filling in

[Irina]

Good evening. I have to fill in Section 21b notice and want to be sure that it's not thrown out of the court on technicalities (neither do I want to pay to fill it in because it's not a rocket science). How to fill Sections 8 and 21 was brilliantly explained on a previous forum by Grampa (I think) but there's no access to documents anymore. So, if you could answer a few questions, it'll be much appreciated. Thank you in advance.

1. Our tenant moved in on 25/03/2011, so has been renting 3 month in 6months' AST. So, his last day of AST will be 24/09/11. Please correct me if I'm wrong. Is this the date I need to put in "this notice expires after..." ?

2. We are joint landlord. Do we have to put both of ournames or one will do?

3. The form says: To.........................(Tenant), then landlord details, and "give you notice that I require possession of the house known as.................................Do I have to put full adress of the flat in both places where the dots are?

4. Just for future, I know that minimum two months are required. If we receive a weekly rent, is it still 2 months or 8 weeks, provided it's after the last day of AST?

5. Finally, I want to make sure that the Section 21b notice I use is the right one, but I dont' know how to attach the file. The packet was bought from an estate agency, but I want to be sure that it'll be accepted by the court. Is there any way to attach a file? Don't see how insert image will help unless I upload it to Photobucket.

[Grampa]

The requirements for a s21(1)( are:

1 The notice must be at least 2 months. (plus at least 2 working days if posting)

2 It can expire at any time as long as it is not any earlier than the last day of the fixed term.

3 Any deposit taken must be protected correctly before serving any s21

So to answer your questions

1 Serve now and enter the last day of the tenancy.

2 If both landlords are on the tenancy agreement it would be best to put both on the s21

3 Enter full address, post codes and full names and titles of of all parties

Generally yes but certain wording left off a contract if 6 months rent taken in advance could change that. and you could find your self in a position of having to give 6 or even 12 months notice.

[LLAW96]

Hello.

There are two types of s.21 notices, one is served during the fixed term of the tenancy (s.21 1 the other is used once the fixed term of the tenany has expired. (s.21 4a), you are serving your notice during the fixed term period of the tenancy so you are quite correct in using the s.21 1b notice. To assist I will answer your questions point for point;

1. you will be entering the last date of the period of the tenancy you have correctly identified this as 24/09/11

2. S.21 provides that where there are joint landlords either landlord can serve the notice ending the tenancy, I have set out the section of the 1988 act dealing with your question below;

,

S. 21 Recovery of possession on expiry or termination of assured shorthold tenancy.(1)Without prejudice to any right of the landlord under an assured shorthold tenancy to recover possession of the dwelling-house let on the tenancy in accordance with Chapter I above, on or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy, a court shall make an order for possession of the dwelling-house if it is satisfied—

(a)that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than an assured shorthold periodic tenancy (whether statutory or not)]; and

(b)the landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than two months’ notice [in writing] stating that he requires possession of the dwelling-house.

3. You do insert the address twice once showing the name and address of the tenant and then again to show the address of the property you are seeking to recover possession of.

4. The minimum notice period is 2 months even if the rent is paid every week.

5. The form will quite clearly state that it is being served under s.21 (1)( Housing Act 1988 at the top of the notice usually in bold. Sounds to me that you have the correct form.

Grampa is quiet right if you have taken a deposit it needs to be protected before you serve your notice otherwise it will be invalid. Please note service of the notice is also extremely important, serve it in person if possible. Posting it through the door in person will suffice. Keep a note of the date and time the notice was served.

I hope the above assists

[Grampa]

You do need to read your contract regarding the serving of notices and how they can be served. A good contract will state something like "Notices are sufficiently served on the tenant if left at the tenancy address" . Though I always find posting 2 copies (1 by recorded & 1 with proof of postage) is accepted by the courts and makes it easier when filling out the court papers as you don't have to write out a witness statement and get your witness to either.

I wasnt aware that only one of the joint landlords could give the notice as stated above by LAW

(b)the landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than two months’ notice [in writing] stating that he requires possession of the dwelling-house.

But consider this, what if the tenant puts in a defense and you have to attend a hearing and the one landlord named on the s21 can not attend for some reason the other would have to and although the judge may accept the other landlord (i don't know one way of the other) he may not. I know the judges don't need much of an excuse to strike out and even if you appeal it just adds more time and expense to getting possession.

So I would advise putting both landlords on the contract on the s21.

On another point never be tempted to write your own s21 notice. I went to a landlord/agent forum not so long ago and a rep fro the RLA was doing a talk stated you could as long as put the correct dates on it. He wasn't too impressed when i pointed out to him he was wrong because there is certain prescribed information that is supposed to be on a s21. He also stated you could put on it that it wont be enforced if say the arrears are paid.

S21 are unconditional so if you put conditions on it that will make it invalid.

[LLAW96]

Although first class post and recorded delivery (see s.196 Law Property Act 1925) can give good service, such methods of service can be rebutted. Rogue tenants will quiet often not sign for recorded delivery items, and you will be amazed how many items get lost in the post. If this is raised by the tenant then you are going have to prove service, therefore you can't beat service by hand. There is no need to prepare a detailed statement when you issue your claim, a simple certificate of service will suffice (form n.215 available off the courts website).

If the tenant lodges a defence, either landlord can give evidence regardless of who has served the notice as they have an interest in the land, the issue of service can be dealt with as set out above. You can put both on if you want, but there is really no need

[Grampa]

Thats why i always send 2 copies to each tenant. I have never had it questioned by a judge and i know half the times i have obtained a possession order the tenants didnt accept the recorded copy because royal mail sent it back to me but it never became a issue at the hearing even when it was defended.

I supposed its horses for courses and it works for me and all i have to do is send a photocopy of the recorded delivery and proof of postage with the court papers..

[Irina]

Thank you so much for your replies. Yes, deposit has been protected within first 14 days of tenancy (with DPS). What proof can be presented to the court? It has been done online and the only acknowledment we have is an e-mail from DPS.

Yes, we intend to post S21 by first class letter from two different locations (tenant avoids us and is pretty much uncontactable, except occassional text messages) and keep certificate of postage. Do we need to photocopy filled in forms as well?

The tenant may well lodge the defence because, though (below) average intellegence, he seems to be well versed in Housing Law and knows how to play harassment card (so we decided to never contact him again, other than by letter). On what grounds can he lodge a defence? He is currently employed full time and judging by his payslips, can afford the rent no problem. He won't let us into the flat to inspect it but neighbours say that he cohabits with a lady, which he denies. She's not in the AST.

I will need your help in the future quite a few times with this tenant - documents and costs for the court, possible defence, bailifs if he fails to vacate the property, possible damages to the flat and claiming the "attachment of Earnings" or other ways to get it back. Is it all right if I address all my questions on this forum?

[Grampa]

There is no defense to a correctly served section 21 notice.

As long as all the paperwork is correct is doesn't matter what defense they put in.

[Carryon Regardless]

If a S21 is completed correctly and served correctly there is no defence. That isn't to say that the 'rogue' won't try to raise issue.

As above I won't use 'signed for' delivery, but send 'proof of post', also I send one 1st class. If possible I hand deliver and will ask the T to sign at the bottom of the copy I retain. A signature isn't a legal requirement but if I can catch them on the hop the proof of service is provided. I see this won't work on this occasion.

Consider a saving clause on the S21 as standard. This serves to allow a judge to decide on the correct date should issue ever be raised on the validity of the expiry date entered. Therefore if a judge agrees that the date is incorrect then the next valid date may be used instead of starting again and losing 2 months (min) notice.

The words I use are "After the expiry of this notice. Or the last day of a periodof the tenancy next occurring following expiry of this notice."

Whichever be sure your notice can't be stated to be ambiguous or confusing 'to a reasonably minded person'. To that end be sure the description of dates aren't confusing.

I have seen the date and signature layout in such a way it could be argued that it's ambiguous.

Following the 'saving clause' I lay mine out as,

This notice expires AFTER: _________________

Landlord Signature: ____________________________

Notice creation date: _________________

[LLAW96]

I do not agree that there is no defence to a s.21 claim, increasingly tenants are loding defences based on Article 8 and proportionality, however this may beyond the scope of this forum. If you have not come across this before it will only be a matter of time before you do.

[Grampa]

Do you know of any case law where a tenant has been successful using Article 8 in a s21 possession hearing? I normally try to keep up with resent housing law cases that may effect me,but I cant say I have come across that YET.

Though the first s21 court hearing I attended the tenant did try to defend themselves using Article 8 and the judge dismissed it out of hand which did bring a smile to my face as the tenant was a bit of a serial litigator. She brought about 5 big fat law books to the hearing and the judge cut her dead as soon as she started spouting off.

A good judge you may think but a few months later she strikes out a S21(1)( possession hearing because the last day of the 2 months notice fell outside the the fixed period and not on the last day of a rent period. I had to appeal and it sailed through.

This is a judge who sits on possession hearings every week so that why I said in my earlier post about adding all landlords on the AST on the s21. I like to cover all the bases and don't want give them the slightest excuse to strike out

[LLAW96]

The reason there is nothing out there at the moment is due to the fact that in the cases where tenants have appealed district judges orders they have done so with the benefit of a legal aid certificate. At this point the landlord backs down not having the will or resources to challenge the decision futher. At some point someone will take it all the way to the Supreme Court. The Article 8 argument already applies to local authorities and social landlord, the supreme court has left the door open for private landlords to suffer the same fate (see Manchester City -v-Pinnock et al)

[Carryon Regardless]

LAW I'm always open to correction, it's more important that those in need can get useful guidance rather than misguided well intentioned guidance.

I've just read a brief explanation of the case you refer to, in honesty so far it goes over my head anyway. I'll be reading a couple more times to digest better.

Previously (an other thread) I mentioned a T who is unmanageable, well I've serve a S21 this week (well 2 to be sure to be sure). I can appreciate that she may not have a full set of fully functioning brain cells so could end up with Shelter raising this defence. I can see the sense in being prepared.

[Grampa]

Very interesting reading thanks for that, we will have to wait and see.

Here is a link to a summery of the case if anyone's interested.

http://www.shoosmiths.co.uk/news/3291.asp

[LLAW96]

I am glad you can see the potential for mischief here. Private landlord several properties -v- single parent with 3 kids, no arrears of rent, landlord wants property back, do you really think that the court is going to find it proportionate for the property to be handed back to the landlord. Dont forget district judge decisions are not binding it will not be until this is decided in the higher courts will we know where its going. All we need is a private landlord with say 50k to spare to find out. Potentially this is rent act protection by the back door.

At this point there is little you can do. However if you have 1 property to let then it would in my opinion be vital to include Ground 1 as a ground for recovery. Although article 8 still applies i believe it gives you more of a level playing field. There is also a potential argument under Protocol 1, but its too complex to set out here.

[Carryon Regardless]

Cheers Grampa that report is far more explanatory than the one I read earlier.

LAW I can see that you have superior knowledge and understanding but,

The case referred to deals with a secure tenancy not an AST,

the points were made that the decision does not affect private LL's.

I understand your concerns around the private LL losing effective control of his tenancies as has been desired by some do gooders for some time. The knock on effect of removing such control from us could be massively negative for the industry.

While those with housing stock are effectively trapped, for some time at least, in that they can't sell overnight in response to such measures, newbies and those expanding their portfolio would be near zero.

Imagine the effect when people realize that as LL you will be stuck with high risk, poor paying, anti social gits because the court (legislation) says so.

Common sense (sometimes we see this) should recognise that LL's aren't in the business of repossessing but renting they are. Each repossession represents an already negative business experience at least.

So far I don't see cause for great concern.

[LLAW96]

If you read the whole of the judgment you will see that the Supreme Court has left the door open for the issue to be raised in respect of a private tenant, later cases have clearly hinted at this position and European jurispudence clearly supports a tenants rights to occupy. Where the current law falls foul is that as drafted it takes away the courts discretion this in theory makes it imcompatible with art 6 and 8. As stated before I am aware of cases where a landlord has back down rather than press on through the High Court/Court of Appeal. It will come to a head at some point and the implications as you have rightly pointed out could be massive, however where there are rent arrears and anti social behaviour you would still have grounds for possession albeit proportionality would still have to be applied to ground 8 claims. Whether you agree or not, it is out there, in any event you have a heads up on the position. Hopefully you will not encounter a tenant with a legal aid certificate in one hand and a housing lawyer in the other.

[Irina]

- Interesting read. Though, even after reading the article in the link, I failed to understand what Article 8 entails. At least, he's not a vulnerable occupier. Will he be if he loses his job?

- If anyone could answer a following question. Deposit has been protected within first 14 days of tenancy (with DPS). What proof can be presented to the court? It has been done online and the only acknowledment we have is an e-mail from DPS.

Thank you.

[LLAW96]

When you complete your claim for possession form n5b there is a section that asks you whether you have taken a deposit and whether the deposit is protected. There is no requirement to file any evidence confirming protection. Having said this you could print off a copy of your email confirmation confirming the date of protection and include it with you claim form marked as exhibit 'D'.

[Grampa]

The proof you need for the court hearing is the deposit certificate which you must be able to download from the DPS site. (if not call them) Also the correct prescribed information which was given to the tenant at the start of the tenancy or when the deposit was protected.

[Grampa]

I think the points LAW has raised give food for thought. But I am not convinced we have too much to worry about at the moment. I cant see Judges who sit on possession hearings week in and week out taking much notice of a clever dick tenant. unless they get new direction from above.

But i could be wrong.

[Irina]

I haven't found Deposit Certificate mentioned anywhere on DPS site. I'll give them a ring, or just print out "view my deposits" page.

As for Prescribed Information, it may be difficult. We did protect deposit straightway but didn't let the T sign Prescribed Info, neither could we do it then or now because he refuses to meet us or to even talk to us or open the door. The only way he communicates with us is through text messages and only when and if he wants. So, as he needs to sign it, I'm not sure what to do. Could you advise?

Also, as he pays (or supposed to pay) weekly, we provided him with Tenancy Book but never had a chance to write in it (except initial payment made in cash) . We don't even know if he still has it. All rent we received was into our account (his wish) and we didn't have a chance to record the rent in Tenancy Book. Will it affect us in any way?

Thank you.

[Carryon Regardless]

We can't force T's to sign if they don't want to.

If you can show you made reasonable effort to provide the info there is no more you can do.

The deposit reference and repayment ID should be enough to show the deposit is with the DPS, after all we don't expect the T to claim you haven't protected so there shouldn't be issue.

Create a statement of payments due and payment made, send to T and submit with the claim. It is for the T to dispute your statement, having the bank statement readily available with payments highlighted should suffice as evidence if disputed.

Any T could say they paid £10,000 CASH on a given day, being able to show regular payments into the bank would show this to be unlikely.

Edit- With the S21 there is no concern of monies due anyway, you just want your property back, no reasons are required.

[Irina]

Thank you, good people. You have been briilliant. As my father says, do take a pie from the oven.

[LLAW96]

Nothing to worry about? As I said defended s.21 proceedings are out there as a private landlord what would you do if you were hit with this;

4. The Defendant contends that she is entitled to defend this claim on the basis that section 21 Housing Act 1988 and section 89 Housing Act 1980 are incompatible with the Convention rights contained in schedule 1 Human Rights Act 1998 in that:

(1) Section 21 deprives the court of the ability to consider the proportionality of the making of an order for possession, something the European Court has repeatedly said it should do in all cases (and see Manchester CC v Pinnock [2010] 3 WLR 1441 paras 30-44 where the cases are set out).

(2) Section 21 Housing Act 1988 requires the court to make a possession order without being informed of the reason why possession is sought (other than that a notice under s21 has been served, which notice is not itself required to contain reasons). The availability of reasons is a requirement for the court to act compatibly: see Powell v Hounslow LBC and others [2011] 2 WLR 287 at para 115.

(3) Section 89 Housing Act 1980 limits the period of postponement which a court can order when proceeding under section 21 Housing Act 1988 to a maximum of six weeks, and then only when the defendant can show exceptional hardship.

5. The Defendant accordingly seeks a declaration of incompatibility and –so far as the county court is concerned- an adjournment of the claim pending the seeking of such declaration.

6. Further or alternatively, the Defendant contends that she is entitled to defend this claim on the basis that the court –which is a public authority and required to act compatibly – is required to consider the proportionality of making an order for possession:

(1) Whether the Convention rights contained in schedule 1 Human Rights Act 1998 apply as between private individuals has not been definitively decided: see Manchester CC v Pinnock [2010] 3 WLR 1441 para 50;

(2) In Zehentner v Austria (Application No. 20082/02, decision 16.10.2009) the European Court considered that the court dealing with an application for judicial sale (in the UK, an order for sale) was still required to consider the proportionality of the eviction under article 8: see para 59. The case in the Austria domestic court was between private individuals.

(3) Even where mandatory words are present in a statute, the court is still required to act within the four corners of compatibility, so that –as with demoted tenancies in Pinnock- a court must still consider the proportionality of making an order under s21.

(4) No reasons are required or have been given for the claimant’s claim for possession under section 21 and, were the court to make an order for possession without knowing the reason why, that would be incompatible and therefore unlawful: Powell at para 115.

(5) The Defendant has her two sons living with her, one adult, one under 18 and all would lose their home were an order for possession to be made.

I will not set out the rest of the defence as the above makes the point adequately, ignore at your peril!