Letting Agent S21 deemed invalid by solicitor due to break clause and wrong wording

[J&A]

I wonder if anyone can help, we have had a horrible time with a tenant and so our letting agent ( we are on a full management package) served our tenant with an S21, to expire on the 22nd April. As the time draws closer our tenant is becoming more and more obstructive and so we have come to the conclusion that they will not be leaving by this date.

We have contacted an eviction solicitor to start the process and have been informed that our section 21 is flawed in several places and have been advised to reissue. The first problem apparently is that we are on a 12 month contract and are relying on a break clause. (The 12 month tenancy finishes in July. ) Our solicitor says that the way how the break clause is worded is unclear and a judge looking at it could argue this point. 

Te second problem is that nowhere in the section 21 does it contain the following wording required by law:

I have reviewed the Notice served and unfortunately have identified a flaw. The Notice does not contain the prescribed wording prescribed by legislation in order to comply with the Protection From Eviction Act 1977. The wording should read as follows:-

 

1.  If the tenant or licensee does not leave the dwelling, the landlord or licensor must get an order for possession from the court before the tenant or licensee can lawfully be evicted. The landlord or licensor cannot apply for such an order before the notice to quit or notice to determine has run out. 

2.  A tenant or licensee who does not know if he has any right to remain in possession after a notice to quit or a to notice determine runs out can obtain advice from a solicitor. Help with all or part of the cost of legal advice and assistance may be available under the Legal Aid Scheme. He should also be able to obtain information from a Citizens' Advice Bureau, a Housing Aid Centre or a rent officer.

 

Apparently this is a problem and again the judge could throw this out based on the lack of this wording.

We have spoken to our letting agent - it should be noted here that they are a very large national company - and they have basically told us that they have been using the section 21 for many years and never had a problem and our solicitor is being "overly picky" verbatum. 

 

We we have gone back to the solicitor and she has said it is up to us, but we need to be made aware of the risks and if there is a problem during the court process, she has advised accordingly.

 

We are at a loss as to what to do. We have no faith in our letting agent as the problems with the tenant have been largely down to their poor systems, however we need to remove our tenant as quickly as we can, so could really do without reissuing our S21

Any advice or help would be much appreciated.

 

 

[Grampa]

Generally speaking there is mainly only 2 way to evict either a section 21 or if the tenant is 2 months in arrears using a section 8 with grounds 8,10 & 11.

If you cant use the section 8 you are left with a section 21.

I dont use break clauses as a rule (so may be wrong on this point) but I am assuming you cant serve another s21 to link in with the break clause date because the date has passed and you are not in the last 2 months  of the tenancy so you have time before you need to serve another one to kick in for the july tenancy end date.

So you could just go with the dodgy s21 and take a gamble and if it fails and gets struck out serve a correct one asap. The down side this does have a cost implication. If you do this make sure you put your agent on notice in advance in writing you will be reclaiming any loss/cost you suffer if it fails due to their faulty paperwork. This to include loss of rent, legal fees and your expenses.

I totally agree with your solicitor the notice does need certain prescribed information and for your agent not to know this verges on the incompetent as this is basic knowledge for an agent.  But saying that and having evicted many tenants via s21 I would say you have a better (not much) than 50/50 chance of getting an possession order and the judge not picking up on it. BUT if the tenant puts in a defense (which are normally rubbish) or gets advice from the council, shelter, CAB or solicitor which most dont they will/should pickup on the faulty notice.

Another thing to consider is it is likely your tenant may stop paying rent with an court hearing and eviction coming up at sometimes soon so as soon as they are 2 months in arrears (= 1 month + 1 day) serve a section 8 notice and court applicication 14 days later online and take that route. You or your solicitor does need to attend court for that route though.

Hope that helps

 

 

 

 

 

[Grampa]

I when to a council meeting a few years ago that was for local landlords and agents and at the end a "expert" rep from the NLA gave talk and advice and tried to say a s21 could be in writing by letter form and didnt need any special wording as long as it has s21 and the correct dates on it.

I took great pleasure it telling him he was incorrect. But to be fair to him he did call me the following day after checking to admitting being wrong.

So my point is this may get past an old duffer of a judge. 

[Carryon Regardless]

My view is that your Solicitor is correct in pointing out the risk of proceeding with the S21.

But you're on a full management contract with the LA, even with disclaimers that may be within the contract they must have responsibility for poor advice. I assume you were charged for the service of the S21, so what do you have for that service so far?. I would consider writing with your concerns to the LA and push for a non ambiguos reply. Often these things sort themselves out without court involvement, but if rejected by a Judge I would be looking for compensation from the LA.

That ignores the stress and renovations that may be ahead though.