Sword of Damocles- section 21 Notices

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    Sword of Damocles- section 21 Notices

    I've been thinking about the Sword of Damocles method of serving S21 notices and how it interacts with these new fangled tenancy deposit schemes.

    One of the penalties is: http://www.depositprotection.com/Public/FAQs.aspx

    "What happens if a deposit has not been protected?

    a) Unable to use 'notice only' Currently, a landlord can regain possession of the property after the first six months of an AST, providing any fixed term has expired and the tenant has been given at least two months' written notice (under Section 21 of the Housing Act 1988). This right to repossession using the usual 'notice only grounds' will be lost if the deposit has not been safeguarded in an authorised scheme and the prescribed information passed onto the tenant within 14 days."


    I wonder how this works in detail? For example is it meaning that the LL cannot action the S21 until the deposit stuff is done? Or is it that he can't serve the S21? Or that if he has served one it becomes invalid if the deposit stuff isn't complied with in 14 days? Or is it that if the 14 day deadline is missed a S21 can never be used?

    So if the LL served the S21 on day 1 and hands over the deposit info on day 10 is the existing S21 valid? What if the deposit info is handed over late, say on day 18, is the S21 served on day 1 now valid? Can the LL just serve another S21 after the deposit stuff is complied with and it doesn't matter that the 14 day deadline was missed?

    Are these tenancy deposit schemes the end of the Sword of Damocles S21 notices served on day one of the tenancy?
    ~~~~~

    #2
    It means just as the wording states - in other words you probably have an Assured tenant rather then an Assured Shorthold tenant so repossession is going to prove difficult.
    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


      #3
      Rely on text of Act, not official announcements.
      Section 215(2) of Housing Act 2004 states that no s.21 Notice may be given until s.213(6)(a) is complied with, i.e. until L gives prescribed information to T. It is the actual service of a s.21 Notice that is prohibited, not merely beginnining proceedings or getting a Court Order.
      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


        #4
        Originally posted by jeffrey View Post
        Rely on text of Act, not official announcements.
        Section 215(2) of Housing Act 2004 states that no s.21 Notice may be given until s.213(6)(a) is complied with, i.e. until L gives prescribed information to T. It is the actual service of a s.21 Notice that is prohibited, not merely beginnining proceedings or getting a Court Order.
        jeffrey,

        Just so we understand:

        1/ tenant moves in.
        2/ on day one the diabolical SoD s21 is served.
        3/ on day seven s213 notice is received by tenant.

        Does this mean that the s21 is not valid?
        Now signature free.

        Comment


          #5
          Originally posted by lorenzo View Post
          jeffrey,

          Just so we understand:

          1/ tenant moves in.
          2/ on day one the diabolical SoD s21 is served.
          3/ on day seven s213 notice is received by tenant.

          Does this mean that the s21 is not valid?
          (sigh) A section 21 Notice CAN NOT BE SERVED unless and until L has complied with s.213.
          In your example, therefore, the s.21 Notice (day 1) will not be valid unless L served (also on day 1) the form containing s.213 information.
          Finally, it could be argued that s.213 compliance is when T receives the information. The Act does not say so, however.
          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


            #6
            Thank you Paul and jeffrey.

            Originally posted by jeffrey View Post
            Section 215(2) of Housing Act 2004 states that no s.21 Notice may be given until s.213(6)(a) is complied with, i.e. until L gives prescribed information to T. It is the actual service of a s.21 Notice that is prohibited, not merely beginnining proceedings or getting a Court Order.
            How does the 14 day deadline fit with that, if the landlord gives the prescribed information to T later than 14 days can he then serve the S21?
            ~~~~~

            Comment


              #7
              Originally posted by Ruth Less View Post
              Thank you Paul and jeffrey.



              How does the 14 day deadline fit with that, if the landlord gives the prescribed information to T later than 14 days can he then serve the S21?
              The fourteen-day requirements are in:
              a. s.213(3) [L must lodge deposit under an authorised scheme]; and
              b. s.213(6)(b) [L must give s.213 info].
              In each case, L has fourteen days beginning on day when deposit received.
              A s.21 Notice cannot be served unless and until L has complied with both of them.
              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


                #8
                Originally posted by jeffrey View Post
                The fourteen-day requirements are in:
                a. s.213(3) [L must lodge deposit under an authorised scheme]; and
                b. s.213(6)(b) [L must give s.213 info].
                In each case, L has fourteen days beginning on day when deposit received.
                A s.21 Notice cannot be served unless and until L has complied with both of them.
                Thanks again jeffrey, you are a star. But reading the sections you mention I still can't quite get the import of the deadline. It reads to me that if the 14 day deadline is missed then so long as the landlord, albeit late, serves the prescribed information he can serve the S21. Doesn't this make the 14 day deadline pointless as far as serving S21s goes? Serving the prescribed information late doesn't matter as, according to 215(2), the LL then just has to comply with 213(6)(a) which doesn't mention the deadline...?!

                http://www.opsi.gov.uk/acts/acts2004...pt6-ch4-l1g215

                215 Sanctions for non-compliance

                (2) If section 213(6) is not complied with in relation to a deposit given in connection with a shorthold tenancy, no section 21 notice may be given in relation to the tenancy until such time as section 213(6)(a) is complied with.

                http://www.opsi.gov.uk/acts/acts2004...pt6-ch4-l1g213

                213 Requirements relating to tenancy deposits

                (3) Where a landlord receives a tenancy deposit in connection with a shorthold tenancy, the initial requirements of an authorised scheme must be complied with by the landlord in relation to the deposit within the period of 14 days beginning with the date on which it is received.

                (6) The information required by subsection (5) must be given to the tenant and any relevant person—

                (a) in the prescribed form or in a form substantially to the same effect, and

                (b) within the period of 14 days beginning with the date on which the deposit is received by the landlord.
                ~~~~~

                Comment


                  #9
                  Sword of Damocles-s.21-can T leave without warning?

                  I issued a section 21 to my tenant in September 2008. The tenant has stayed on until the end of last month. Rent has been paid direct to me by council and the SEction 21 not enforced by court proceedings.

                  The tenant has now left and said they do not need to give notice because a section 21 was issued.

                  My question is is this the case or do they still have to abide by the terms of the AST which became a rolling month by month tenancy.

                  Any help greatly appreciated.

                  Phil

                  Comment


                    #10
                    The answer is "no they can't (probably)".

                    Please do a search for a fuller explanation as this subject has been explored in great detail on a number of occasions and as recently as a couple of weeks ago.
                    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


                      #11
                      If I could just add that the useful search to do is to search for Damocles, as in Sword of Damocles (it's a nickname that this goes under). If you just search for Section 21 you will get too much data not all relevant to this specific question.
                      ~~~~~

                      Comment


                        #12
                        Originally posted by Ruth Less View Post
                        If I could just add that the useful search to do is to search for Damocles, as in Sword of Damocles (it's a nickname that this goes under). If you just search for Section 21 you will get too much data not all relevant to this specific question.
                        Yes....but, do the older SoD threads contain the same arguments advanced by Lawcruncher and I?
                        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


                          #13
                          Originally posted by agent46 View Post
                          by Lawcruncher and I?
                          O tempora! O mores!

                          Comment


                            #14
                            Suggestion to Admin:

                            Perhaps:
                            1. One of the s21 threads that contains all accurate and relevant information -
                            2. A new thread outlining the true disposition of s21 rights and obligation -


                            is made into a sticky topic that remains at the top of the relevant forum for all to refer to quickly and easily.

                            Wouldn't that save much of the duplication and irritation of fielding the same question all the time?
                            Now signature free.

                            Comment


                              #15
                              Originally posted by lorenzo View Post
                              Suggestion to Admin:

                              Perhaps:
                              1. One of the s21 threads that contains all accurate and relevant information -
                              2. A new thread outlining the true disposition of s21 rights and obligation -


                              is made into a sticky topic that remains at the top of the relevant forum for all to refer to quickly and easily.

                              Wouldn't that save much of the duplication and irritation of fielding the same question all the time?
                              I've mentioned this suggestion a few times, but those in command have taken no notice. Perhaps they prefer to have the same arguments played out over and over again because it increases the post count of LLZ and leads to entertaining arguments between the members.
                              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

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