Paul F's Question Time (5)

[PaulF]

A little deviation from the usual brain teasers as this is a real life scenario. If and when there are enough answers I will tell the tenant to have a look at the thread and he can just see what a potential mess the landlord might be in. I will use bullet points for ease of comprehension:

• The tenant a retired man has been occupying a property in England under an AST since 1993.
• The landlord has resided in France all this time.
• The first AST was for 12 months, and when it expired the landlord issued a new monthly periodic tenancy with no fixed term. Since then no new agreement has been drawn up.
• The landlord is hoping to repossess the property in mid-February and has sent by e-mail from France a communication saying that he wants to start alterations to the property as soon as the date in February has passed.
• The rental period of the tenancy ends on 24th of each month.
• No Section 48 Notice seems to have been served at anytime.
• The tenancy doesn't have an address for the landlord anywhere on it.
• The Second tenancy states the landlord will give the tenant "three months" Notice of requiring possession.
• There is nothing to tell the tenant how Notices will be served upon him.
• The landlord has promised (in writing) to do a particular repair to the ceiling of a sun lounge lean-to in the property for over 5 years yet has failed to do this (it hasn't prevented the tenant having reasonable use of the room).
• The landlord's builder has alreay been instructed to prepare to do work next month.

So what have we here then?

1. What are the implications of no Section 48 Notice having been served?
2. Is a letter by e-mail sufficient Notice?
3. What are the problems with the dates?
4. How might S.196 of the Law of Property Act 1925 apply?
5. Does the 3 months Notice clause override the landlord's statutory entitlement to serve only a minimum of 2 months Notice?
6. Are there any other implications that are not immediately obvious?

[MrShed]

Lol come on then Paul you are challenging us again should lead to some interesting discussion! As usual, I shall have an attempt, but fail dismally!

1. What are the implications of no Section 48 Notice having been served?
   
   Any notice of possession is not legally enforcable, and rent is not lawfully payable.
   
2. Is a letter by e-mail sufficient Notice?
   
   
   I'm sure of course that somewhere in law it will say definitively, but my opinion is no, due to the unreliable and unsecure nature of it.
   
3. What are the problems with the dates?
   
   Unsure, apart from you saying mid february, which is obviously not after the 24th. And I am also guessing that it has not been the required length of time anyway.
   
4. How might S.196 of the Law of Property Act 1925 apply?
   
   No idea
   
5. Does the 3 months Notice clause override the landlord's statutory entitlement to serve only a minimum of 2 months Notice?
   
   In my opinion, yes, as it does not restrict the tenants entitlement to two months notice.
   
6. Are there any other implications that are not immediately obvious?
   
   I believe there would be some implication on the landlord based upon his written promise to fix the damage in the room. And probably others but nothing I can see at the moment.
   

Just very basic first thoughts.....just going by opinion rather than research just to see if I'm anywhere close, but probably not!

*EDIT*

Just read Section 196, it appears to rule that the email would not be a valid form of service.

[P.Pilcher]

O.K. here is my miserable attempt:

1). As no section 48 notice was served, I think the tenancy has become an assured one, hence the tenant has security of tenure.
2) Not sure, but Mr. Shed has probably found the correct answer!
3) The date on which the notice was served is not given thus it is not possible to determine whether the required 3 months notice has been given. This is irrelevant anyway as the tenancy has become an assured one.
4) This is the one which specifies how a notice must be served to be legally enforceable. Without stating this in an AST then all notices must be served personally.
5) Yes, but IMHO the tenant has security of tenure anyway.
6). The tenant is not legally required to pay rent as he does not have the address of the landlord.

As usual I look forward to reading the correct answers. Thanks for another interesting quiz Paul.

P.P.

[MrShed]

I love these questions, they always cause such totally different answers!

Also, think I shall change my mind about part 6....dont think there is any comeback on him for putting this in writing, unless he specified a time when the repairs would be done by, which you do not say. However, extrapolating from my answer to question 1, would the tenant be entitled to all rent paid back?? I wouldn't have thought so, but perhaps a possibility?

Oh and shall revise my answer to part 1.....no notice of possession based upon rent arrears is valid.

[PaulF]

Some Pointers

1. I've already stated that it's an AST so don't go down the road of an assured tenancy (A S.20 Notice was served and incorporated within each tenancy).
2. There are no rent arrears.
3. Although not relevant, the landlord did obtain an exemption certificate from FICO (as it then was) for the tenant not to deduct tax.
4. S.196 does indeed relate to the service of Notices, and in the absence of anything within the AST then it must be served personally upon the tenant. The Act clearly states that terms of service of Notices cannot be implied into a tenancy and therefore must be stated. An e-mail would probably have been valid had it stated so within the AST; incidentally the landlord sent it to the tenant on 31 October, and did give three months Notice.
5. Mr Shed has the answer to the first question absolutely correct!

[MrShed]

Wow that would be a first

[MrShed]

OK so my opinion at the moment is that:

The tenant should not vacate the property, as he has had an invalid notice served upon him. The only valid form of notice will be served in person by the landlord, so the landlord will have to come over from France to do so . In the meantime, the tenant should not pay any rent, as he has no obligation to do so, due to the lack of Section 48 notice. A very sticky situation this landlord has got himself into indeed!

So, that deals with questions 1, 2 and 4 for my answers anyway. Only slight clarification is: without a Section 48 the landlord cannot serve a notice due to rent arrears? Or any notice at all? I believe it to be the former, but could be wrong! Moving on...

What are the problems with the dates?

Again with only one date it is difficult to say. My only guess is that again the "mid-February" date is not after the 24th.

Does the 3 months notice override the landlord right to give 2 months notice?

Yes, as it has been offered by the landlord, and agreed to. I think!

Other implications?

Before the landlord can get any rent he is going to have to serve a Section 48 notice. To do this, he is going to need an address in England and Wales...so if he has no family there, he will need to appoint a letting agent to have an address(this would probably be advisable for this particular landlord anyway!). I also wonder about all the rent the tenant has already paid, whether there could be a legitimate claim by the tenant for this back due to the lack of S48....have tried to find out, but my research turns up a blank!

[PaulF]

Mr Shed! Very impressive! You've covered most of the points raised. I know the tenant doesn't have to pay rent but he is continuing to do so as he is an honest man.

[MrShed]

Lol thanks paul....see im not always wrong! What is your opinion on the rent already paid? Could he possibly claim it back or not? Can't find a prior case where it has been attempted. I'm guessing probably not.

Thanks for posting these occasional posers paul....not only very interesting, but also a great way to increase our knowledge on the subject!

[Energise]

What is your opinion on the rent already paid? Could he possibly claim it back or not? Can't find a prior case where it has been attempted. I'm guessing probably not.

Service of S.48 notice makes the rent retrospectively due, so any rent withheld for the failure of serving a S.48 becomes due upon its service.

[PaulF]

Quite right! The only thing is the tenant is not obliged to pay any interest if he had chosen to withhold rent until a S.48 Notice had been served on him.

[Energise]

Just curious Paul f, what if a tenant withheld rent, the tenancy ended and the tenant left before an s.48 was served, I assume you cant serve an s.48 on someone that isn't your tenant?

[MrShed]

Presumably the landlord would just lose the lot lol

[PaulF]

To answer Eneregise's question, no oyu can't serve a S.48 ona n ex-tenant so the landlord would forfeit any rent that had been due.

Anyway, further developments on the case as promised.

The tenant has now recieved a S.21 (4a) Notice of possession to end "after 24 March 2006" sent by recorded delivery by the landlord's solicitor and another copy through the ordinary post. Whilst the date may be correct as far as the end of the rent period is concerned, it's only two months Notice and not three months as stated in the AST, and there's still no sign of any S.48 Notice either, so it's invalid. I suggest the solicitor wasn't given the AST by his client and is therefore carrying out instructions on his behalf that will be a complete waste of time!

[Worldlife]

May I plead that the S48 notice is not a prescribed form and the information required by that notice was contained in the Assured Shorthold Tenancy Agreement?