When your S.21 might be invalid

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    When your S.21 might be invalid

    I'm not sure if anyone else posted this but if you serve the S.21 at the beginning of the AST and have not yet protected the deposit within one of the schemes (if you have taken one) even though you might still do so within the 14 days window, then your S.21 Notice will be invalid and will need to be re-served. Delicata v Sandberg. Central London County Court 2 June 2009
    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.

    #2
    As a county court, this can't really be taken in absolute terms as a precedent as far as I know.
    But then issuing S21 at the start of the tenancy is fairly commonly argued as a bad idea anyway.
    If I am offering advice, I am doing so purely because I think I know the answer and would like to help, but... and its a big but, I do occasionally get things wrong, as anyone does.

    So please don't sue.

    Comment


      #3
      Originally posted by NoMoreFaith View Post
      As a county court, this can't really be taken in absolute terms as a precedent as far as I know.
      But then issuing S21 at the start of the tenancy is fairly commonly argued as a bad idea anyway.
      'Early' service of s.21(1)(b) Notice is valid, however, as long as:
      a. it's served after the AST has started; and
      b. on the day that it's served, any protectable deposit has already been protected.
      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).

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        #4
        Originally posted by jeffrey View Post
        'Early' service of s.21(1)(b) Notice is valid, however, as long as:
        a. it's served after the AST has started; and
        b. on the day that it's served, any protectable deposit has already been protected.
        Yes.

        Thats the definition alright.

        Not an idea I agree with, whether legally and properly done or not.
        If I am offering advice, I am doing so purely because I think I know the answer and would like to help, but... and its a big but, I do occasionally get things wrong, as anyone does.

        So please don't sue.

        Comment


          #5
          But then issuing S21 at the start of the tenancy is fairly commonly argued as a bad idea anyway.

          Not that I'm aware of. I think its a great idea provided you follow the advice given in the other posts.

          Comment


            #6
            Originally posted by subjecttocontract View Post
            Not that I'm aware of. I think its a great idea provided you follow the advice given in the other posts.
            Agree.* I personally know of a few HB/LHA LL's who serve s.21's after AST is signed as a matter of course; it's explained to T's that as long as rent is paid and property is looked after, they have nothing to worry about, and can stay as long as they like.

            * There may be some who diagree with this practise, but then they may not have been burn't under the 'LHA system'
            The information in my posts is provided 'as is'. This is not intended to be legal advice. Legal or other professional advice should be sought before acting or relying on this information or any part of it. I will not be held responsible for loss or damage arising from errors in the information or the way in which a person uses the information on this . For more information on your query use the '' link at the top of this page. Agreements, Forms & Notices can be found .

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              #7
              I always serve S21 at the start of a tenancy - saves having to do it at the end when the tenant may not be contactable (possible absconders) or may refuse to be served the notice (even if its recorded delivery) or indeed deny they've recieved the notice (after I gave it to them in their hand).

              The S21 notice is part of our AST agreement

              Comment


                #8
                Originally posted by TopNotch View Post
                The S21 notice is part of our AST agreement
                Then it is invalid.

                A section 21 notice has to be served by a landlord on a tenant. If the tenancy has not begun there is no landlord or tenant.

                Comment


                  #9
                  If AST and s.21* are separate documents:
                  (1) AST signed (and dated/timed) by T & LL.
                  (2) s.21 signed as (1), but timed as 1 hour later.
                  This will be valid. However, dating (2) as the next day is preferable.

                  * for an AST in E&W where any protectable deposit is protected.
                  The information in my posts is provided 'as is'. This is not intended to be legal advice. Legal or other professional advice should be sought before acting or relying on this information or any part of it. I will not be held responsible for loss or damage arising from errors in the information or the way in which a person uses the information on this . For more information on your query use the '' link at the top of this page. Agreements, Forms & Notices can be found .

                  Comment


                    #10
                    Originally posted by tom999 View Post
                    If AST and s.21* are separate documents:
                    (1) AST signed (and dated/timed) by T & LL.
                    (2) s.21 signed as (1), but timed as 1 hour later.
                    This will be valid. However, dating (2) as the next day is preferable.

                    * for an AST in E&W where any protectable deposit is protected.
                    The key thing is that the notice must be given after the landlord and tenant relationship has arisen. It does not arise on the signing of the tenancy agreement, but on the tenant going into possession. A tenancy agreement is an executory agreement only.

                    Accordingly, if you want to serve a "Sword of Damocles" notice you must satisfy yourself that the tenant is in occupation before you serve it. Remember there is no immediate need to serve the notice.

                    Comment


                      #11
                      Post #9 (1) would be done as part of Tenant check-in, which would also include hand over of keys, and signing of inventory by T & LL.
                      The information in my posts is provided 'as is'. This is not intended to be legal advice. Legal or other professional advice should be sought before acting or relying on this information or any part of it. I will not be held responsible for loss or damage arising from errors in the information or the way in which a person uses the information on this . For more information on your query use the '' link at the top of this page. Agreements, Forms & Notices can be found .

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                        #12
                        If a tenant is fighting to remain in your property, these little details will become very important to the LL. Mistakes will be costly.
                        All posts in good faith, but do not rely on them

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                          #13
                          The tendency of the courts is to insist that section 21 notices are correct and correctly served. If in doubt they will come down on the side of the tenant because a landlord can always serve another notice.

                          Comment


                            #14
                            IMHO rightly so, as any subsequent Court Order will result in T losing their home.

                            Many s.21's have been thrown out by Judges, due to being invalid.
                            "The Chairman of the London Association of District Judges says 7 out of 10 of these notices are being thrown out of court because they are wrong."

                            Any reasonable LL would only serve/enforce an s.21 as a last resort, when all other means of resolving matters with T had been exhausted.
                            The information in my posts is provided 'as is'. This is not intended to be legal advice. Legal or other professional advice should be sought before acting or relying on this information or any part of it. I will not be held responsible for loss or damage arising from errors in the information or the way in which a person uses the information on this . For more information on your query use the '' link at the top of this page. Agreements, Forms & Notices can be found .

                            Comment


                              #15
                              Many s.21's

                              If you follow the advice set out on the above page you may end up serving an invalid notice.

                              Comment

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