Claim for possession of property struck out

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    Claim for possession of property struck out

    My possession claim was struck out because the S21 notice required possession ON and not AFTER the last day of a period of the tenancy.

    The wording of the Section 21 notice is:

    I give notice that I end the tenancy and require possession of the Property on 2/5/08 or (if this notice would otherwise be ineffective I require possession on the first date which:

    if the tenancy is a periodic tenancy, is the last day of a period of the tenancy and is no earlier than the date on which the tenancy could lawfully be ended by a notice to quit.

    Is it possible to appeal against this decision pointing out Lower Street Properties V Jones (1966) or is the judge correct?


    The tenancy agreement is dated from 3/5/04 for a period of 6 months
    Last edited by android; 19-05-2008, 11:50 AM. Reason: more info

    #2
    Oh dear! I was sorry to read this post. The judge is correct.

    Issue a fresh s21 notice (well before 3 June) requiring possession AFTER 2 August 2008.

    Comment


      #3
      Originally posted by android View Post
      Is it possible to appeal against this decision pointing out Lower Street Properties V Jones (1966) or is the judge correct?
      If you did, the Judge might refer you to www.selbornechambers.co.uk/documents/Newsletter9_Nov2006.pdf On page 7 it has (my underlining):
      However, unlike a common law notice to quit, a notice under s.21(4) cannot validly require possession on the last day of the relevant period of the tenancy, only after it. The validity of a notice on this very point was considered by the Court of Appeal in Notting Hill Housing Trust v Roomus [2006] 1 WLR 1375, in which judgement was given on 29 March 2006. The s.21(4) notice in that case required possession “at the end of the period of your tenancy…”, and the tenant’s contention was that this was not the same as ‘after’ the end of the period of the tenancy. Fortunately for the landlord, the Court of Appeal held that ‘at the end of’ meant ‘after the end of’, and was accordingly in compliance with s.21(4), pointing out that a request to an audience that they should remove all their belongings ‘at the end of the concert’ is not asking them to do something at the split second when the last note is played, but only after the concert has ended.
      On some things I am very knowledgeable, on other things I am stupid. Trouble is, sometimes I discover that the former is the latter or vice versa, and I don't know this until later - maybe even much later. Because of the number of posts I have done, I am now a Senior Member. However, read anything I write with the above in mind.

      Comment


        #4
        Originally posted by android View Post
        My possession claim was struck out because the S21 notice required possession ON and not AFTER the last day of a period of the tenancy.

        The wording of the Section 21 notice is:

        I give notice that I end the tenancy and require possession of the Property on 2/5/08 or (if this notice would otherwise be ineffective I require possession on the first date which:

        if the tenancy is a periodic tenancy, is the last day of a period of the tenancy and is no earlier than the date on which the tenancy could lawfully be ended by a notice to quit.

        Is it possible to appeal against this decision pointing out Lower Street Properties V Jones (1966) or is the judge correct?


        The tenancy agreement is dated from 3/5/04 for a period of 6 months
        It's frustrating to find that your accidental use of "on" instead of "after" can have such expensive and time-wasting consequences.

        On first reading I concluded that the catch-all follow-up sentence beginning "or if this notice would be otherwise ineffective, I require possession on the first date --- etc.", should validate your notice and you should be able to appeal against the Judges decision.

        The alternative provision should come into play because with your requirement for possession ON the last day of a tenancy period, your notice is indeed ineffective.

        However the alternative apparently also requires possession ON (rather than AFTER) the last day of a period of the tenancy. I find this hard to understand. Is it possible that you have made an error in reproducing the wording of your section 21 notice?

        Comment


          #5
          This was simply a pre formed section 21 notice that i bought along with the tenancy agreement from whs smiths

          Comment


            #6
            OK, you say you've quoted correctly, but I'm sure that the intention of the "OR" provision on the Section 21 form is to say that if for any reason the date of my notice is unacceptable then substitute the earliest legally acceptable date.
            However, it appears that the OR provision on the standard WHS form requires "possession on the first date which ---is the last day of a period of the tenancy"
            Surely the sentence should read "possession AFTER -- etc." It can never be correct to ask for possession ON the last day of a tenancy period, as you have found to your cost.
            If the word AFTER had been used, your notice date for possession would have moved to the third of May and would have been valid.
            Does anyone else think the WHS S21 form is wrongly worded?

            Comment


              #7
              Originally posted by android View Post
              This was simply a pre formed section 21 notice that i bought along with the tenancy agreement from whs smiths
              Why don't you write to WHS and say their Notice was flawed and as a result were unable to get possession? A solicitor might be able to help you get a decent result and would have a bit more clout if they sent the letter!
              The advice I give should not be construed as a definitive answer, and is without prejudice or liability. You are advised to consult a specialist solicitor or other person of equal legal standing.

              Comment


                #8
                I think the notice is invalid as it says "possession is required...on the first date which is the last day of a period of the tenancy"

                As Esio Trot has posted, there has been a case (Roomus) where a "saving clause" such as the one in the WHS notice has been held to comply with s.21(4)(a), but in that case, the wording used was "at the end of" rather than "on" as in your notice. Whilst the courts may be willing to manipulate language to interpret a notice to comply with the section, judges just seem to have a huge problem with s.21 notices that use the word "on" because there is no way the word "on" can ever mean "after".

                Unless possession is required very urgently I wouldn't bother appealing to a Circuit Judge because, firstly I think you would lose, secondly, appeals are expensive and thirdly, even if you won, your tenant might appeal that decision and so on.

                It might be worth your while pursuing WHS though.....
                Health Warning


                I try my best to be accurate, but please bear in mind that some posts are written in a matter of seconds and often cannot be edited later on.

                All information contained in my posts is given without any assumption of responsibility on my part. This means that if you rely on my advice but it turns out to be wrong and you suffer losses (of any kind) as a result, then you cannot sue me.

                Comment


                  #9
                  sorry to hear your plight, I have recently issued a Section 21, the wording on this now has me worried, with regard to dates it simply states:

                  ' Date of Expiry: 31st July 2008'

                  The date of issue is 22-5-08 so I have given at least the 2 months I believe until the end of he second rental period after issue. Thinking I am being generous.
                  Does 'Date of Expiry' rather than 'Require Posession After' put me in jeopardy at all.

                  Comment


                    #10
                    Originally posted by k300 View Post
                    sorry to hear your plight, I have recently issued a Section 21, the wording on this now has me worried, with regard to dates it simply states:

                    ' Date of Expiry: 31st July 2008'

                    The date of issue is 22-5-08 so I have given at least the 2 months I believe until the end of he second rental period after issue. Thinking I am being generous.
                    Does 'Date of Expiry' rather than 'Require Posession After' put me in jeopardy at all.
                    Don't get confused here.

                    My publisher's s.21(1)(b) Notice does have a line reading "..an Assured Shorthold Tenancy which expires [on date]". That's the AST expiry date, of course, not the Notice expiry date- which itself does not appear at all.

                    The form goes on to state that "Such application will be made [on date][at the expiration of two months from the date of service of this Notice upon you] unless you have by that date quit the said premises." The first insert would be the day after the AST's fixed term expires; the second insert, as an alternative, is the 'all-purpose-saver' wording.
                    JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                    1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                    2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                    3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                    4. *- Contact info: click on my name (blue-highlight link).

                    Comment


                      #11
                      Hi Jeffrey,
                      so I may have got this wrong then,

                      That's the AST expiry date, of course, not the Notice expiry date- which itself does not appear at all.
                      I issued and dated the S21(1)(b) on 22-5-08.
                      The expiry of the AST was 23-5-08.
                      'Date of expiry' on the S21 I put in as 31-07-08 giving 2 clear months.

                      From what you are saying should it have had 23-5-08 in the 'Date of expiry' box.
                      What are the implications if I have sc****ed up.

                      Thanks,
                      Stuart.

                      Comment


                        #12
                        Originally posted by k300 View Post
                        Hi Jeffrey,
                        so I may have got this wrong then,



                        I issued and dated the S21(1)(b) on 22-5-08.
                        The expiry of the AST was 23-5-08.
                        'Date of expiry' on the S21 I put in as 31-07-08 giving 2 clear months.

                        From what you are saying should it have had 23-5-08 in the 'Date of expiry' box.
                        What are the implications if I have sc****ed up.
                        Your Notice was issued during the fixed term. Two months from service, you could begin proceedings (if Notice correct).
                        BUT if you showed 31 July as AST expiry date, that's clearly wrong. Please state precise line of text in which you inserted "31 July" date.
                        JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                        1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                        2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                        3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                        4. *- Contact info: click on my name (blue-highlight link).

                        Comment


                          #13
                          Hi Jeffrey,
                          http://goldnuts.co.uk/images/tempora...21-blurred.pdf

                          Comment


                            #14
                            Looks fine to me but I'd blur the tenants name from your scanned image.

                            I trust any deposit you took was protected and that you have proof of good service
                            ****************************************

                            If you are unsure about what to do seek professional Legal advice.

                            Comment


                              #15
                              Hi House,
                              oops, name sorted, thanks, deposit is with DPS.

                              What do you mean by 'proof of good service', sorry if it's a dumb question.

                              Cheers.

                              Comment

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