L serves s.21 Notice to help T obtain rehousing

[Kirst1406]

Hi there
I've been trying to find a definitive answer on this subject and getting nowhere fast, please help as it's starting to really stress me out.

I'm a landlord and my tenant's assured shorthold tenancy agreement is up on 10th April. My tenant has said they do not wish to renew as she wants a council house. She is a council tenant and has told me that in order for her to get a council house she has to be made homeless, therefore I need to issue a Section 21 Notice and then a get a Possession Order (the council advised her of this).

The confusing part is understanding which Section 21 Notice I should use and the correct date of the expiry date you put at the bottom of the form. In addition, when it should arrive on my tenants door step, this is where i've had two solicitors telling me different things. I have already sent a (1) Your Fixed-Term Assured Shorthold Tenancy - Housing Act 1988 section 21(1)b Form. I dated the expiry date as 10th April (the last day of her tenancy agreement) and sent it by Registered Post and I have had confirmation from my tenant that she received this section 21 notice on 8th February. So I have therefore given her over 2 months notice.

However, one solicitor has said to me that I should have sent it to arrive on the day of, or the day before she pays rent every month (she pays rent on the 11th of every month). However, after reading various info on the internet, if i'm reading it correctly, that is if my tenant is in a periodic tenancy. However, surely she is in a fixed tenancy if the Assured Shorthold Tenancy desn't end until 10th April? However, the other solicitor says that I can send S21 to arrive at any point, as long as the expiry date gives at least 2 months notice (allowing 3 days for posting), however, she still says I need to send a new one as I shouldn't have put the expirty date as the last day of the tenancy agreement, had I dated it the 11th April it would have been ok. So my question is, do I need to send a new S21, and if so when should it arrive on her doorstep.

Also, once the Section 21 runs out, I'm not clear on exactly what I do next and how I get a posession order (if that is what I must get) and will this cost me a lot of money this whole procedure.

I'm really Sorry ,I know this seems long, but I need to give you all the dates and facts etc as I'm getting nowhere fast. Please help I would appreciate it soooooooo much.

Thank you.

[johnjw]

Presumably your AST started on the 11th day of the month - on the 11th of October, 2010 if it's a 6 month tenancy. The last day of the tenancy would be the 10th of April, 2011 and you should word your notice so that you require possession AFTER the 10th of April. If you have done this (the after bit is important) your notice should be OK. You have given more than 2 months notice and "more" is not a problem.
After the notice has expired and if (as presumably she will) your tenant remains in the property; you will have to apply for a possession order. Your local Court will give you the necessary forms and you will have to pay a fee.

[Kirst1406]

Hi Johnjw

Thanks very much for responding. I know you say the wording of the Section 21 is important, however the Section 21 I downloaded off a property website is below, it doesn't have any wording that says 'after'. Also, if you read the terms and conditions on the second page, the most interesting point is the first bullet point. Does that mean I can have the expiry date as the last day of the lease. As I said the AST runs out on the 10th April.


NOTICE REQUIRING POSSESSION OF A Dwelling House
(England & Wales - Housing Act 1988 as amended by Housing Act 1996 – Section 21 Notice)

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I give you notice that I require possession of this dwelling house by virtue of:



(1) Your Fixed-Term Assured Shorthold Tenancy - Housing Act 1988 section 21(1)b




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To:
Name of Tenant: xxxxx

Address of Tenant: xxxxxx




FROM:
Name of Landlord: xxxx

Address of Landlord: xxxx


Contact number of Landlord: xxxxxx


Landlord Signature: _________________



DATE:

Date Of Expiry of this Notice: 10th April 2011




Date this NOTICE is SERVED:
Tenants and Landlords please note:

• On or after the end of a fixed-term assured shorthold tenancy a court must make an order for possession if the landlord has given notice in writing under the shorthold ground (Section 21)
• The landlord does not need to give any reason for requiring possession.

• Where there are joint landlords, at least one of them or their agent must serve the notice.

• Where there are joint tenants, it is preferable that each tenant be served notice.

• The notice should be served in person or through the letter box or by first class post – keep a copy and record the date and time, who served the notice (any witness), and proof of postage.

• Fixed-term (S21(1)b) The length of the notice must be at least two months, and the notice must be served before or on the day on which the fixed-term comes to an end.

• Periodic Tenancy (S21(4)a) (i.e. where the tenant has stayed-on after the expiry of the fixed term) a notice can be served after the fixed-term has ended specifying a date after which possession is required being the last day of a period of the tenancy (usually the day before a rent payment day) and not earlier than two months after the date the notice was given.

• Periodic Tenants – the landlord requires possession after the date stated in this notice or at the end of the period of your tenancy which will end next after the expiration of 2 months from the service upon you of this notice.

• If you as tenant do not know your rights after you have been served a notice requiring possession see a solicitor, the Citizen’s Advice Bureau or your local authority rent officer. Supplied in good faith – no accuracy guarantee & no liability accepted – use at your own risk

[Kirst1406]

Sorry Johnjw, I mean read the 6th bullet point. It's says before or on the day on which the fixed term comes to an end. I'm probably getting totally confused now. If you would do me a big favour and just read the form I have copied and let me know whether you think I do need to send another Section 21 out. As I said, AST finishes on the 10th April, as you can see I have dated the expiry date on the Section 21 as 10th april and my tenant has emailed me confirmation that she received the Section 21 on 8th February.

[Snorkerz]

Serving an s21 on this tenant is going to cost you money - potentially £245 if you DIY, £1k if you use an eviction company. Are you sure you want to do this so you can lose a tenant?

Your s21 seems to be invalid, as you can not seek possession on the 10th (it is still part of the fixed term). However, you can easily re-issue a s21(1)(b) with the appropriate notice, it doesn't have to end on any specific day. Use the word 'after' in your expiry date, otherwise you will be limiting yourself to seeking possession on that one specific day.

Your tenant may be happy with the current s21 - but once the council see it, they will know it is invalid.

[mariner]

You are willing to evict a T because she asked you and prepared to expend considerable time and money for the privilege!!!!

Ask her to pay your costs & court fees, in the hope she may get a cash-strapped Council to possibly find her, a homeless person by design, a temp B&B hostel & poss walk the streets during the day.

If you can prove the Council's advice (complicity) in this 'fraud', I am sure a local or National newsdesk would be interested.

I fear this could become the next method to blackmail a LL for fear of unpaid rent or trashing the property for failure to play ball.

If you do as requested and evict an otherwise compliant T on HB, poss with children, and the Council renage on their offer of re-housing, who do you think the press will castigate?

If you decline the T's generous offer, she could stop paying rent (so you can get HB paid direct), trashes the property, you sue for damages in SCC & obtain a CCJ for debt which will adversely affect any credit check for her mobile phone contract.

All my refs to T are generic & not intended to apply to any specific ind involved in this case.

[fletchj]

If you can prove the Council's advice (complicity) in this 'fraud', I am sure a local or National newsdesk would be interested.

What is the basis of this statement please? Fraud is a criminal offence and if this statement were true it would be music to the ears of a number of people on this board but I'm afraid it isn't. The council's advice may be annoying but I'm afraid its spot on. They will only rehouse if someone is made involuntarily homeless, so LL must expel tenant one way or the other for T to be rehoused by council - it is insuffcient if the tenant leaves of their own accord.

[Paul Gibbs]

The position of the local authority is not unusual. It is known as gatekeeping. Essentially they have a limited supply of housing stock, and cannot house everyone. They therefore require private landlords to evict tenants, and tell tenants to remain in the property until the last moment. Essentially this saves the local authority putting lots and lots of tenants in B&B at massive cost.

From what you have said above the Section 21 notice appears to be valid. Please confirm whether a deposit was paid, and whether this has been protected in a scheme, and the prescribed information served on T.

Once the notice expires you will need to start court proceedings. You can DIY or do it yourself. If you DIY then it will cost you £100. If you use a solicitor then you will incur fees of somewhere between £500 - 750. Some solicitors will offer a fixed fee. This should cover the work up to and including obtaining a possession order at court.

If T fails to leave at the date provided in the order you will have to instruct bailiffs which will cost a further £95 if you DIY, or £215 + if you use solicitors.

You will get a CCJ against T for the eviction fees but this will be a maximum of £219.50, so if you use solicitors there will be a shortfall. Also note that you would have to enforce against T to try to get T to pay. The reality is that you are unlikely to get this money back.

[midlandslandlord]

On the basic principle discussed, anyone colluding with a tenant to help them become "involuntarily homeless" is playing with fire imo:

1 - It isn't involuntary, so if found out first they will not be rehoused and will stay in the property.
2 - L is aiding and abetting T to obtain council accommodation by deception, and that will come under some variety of benefit fraud or other offence. On discovery, I would think that possible criminal charges and blacklisting would be the next steps. And - at the least - L could become an "unfit person".

If L and T have had the conversation, the problem for L is potential get blowback if T admits asking L to cause 'involuntarily' homelessless to the Council; it may not be in T's interest to say so, what will L say if T does admit it?

What will L say if T threatens to tell them about collusion (what if emails had been exchanged?) unless payments are made. How will L prove that they didn't start it in exchange for a potential favour if that's what T claims?

So options would be:

a - Go through the standard legal Section 21 process - research it on this site; see Paul Gibbs' post.
b - Leave T as is.

The problem with (a) is if T claims collusion out of spite, and just stays not paying the rent; in which case the answer is to complete the process anyway. It might even be worth a pre-emptive confidential conversation with/letter to the LA to spike the possibility of blackmail.

I detest the way Council's use this technique, but collusion is an absolute no no imo.

ML

[Kirst1406]

Thank you everyone for your help. The problem is, she will stop paying the rent and I will have to go through the whole process of evicting her. This is also beside the point as frankly she's been a nightmare tenant, so I wasn't going to renew anyway as one of my family members is moving to London to begin a new job and I would like to rent to her, so want my flat back. I just wanted everyone to know that the T is happy to go.

Paul Gibb, thank you for your help. I believe you are a solicitor is this correct? So from your legal expertise, the Section 21 is valid and I can continue to wait out, until the expiry date ends and then proceed to Possesion Order? As said, the expiry date is the exact same date as the end of the AST Agreement - is this ok? A depost has been protected and I have confirmed that with the Estate agent who found my tenant, they have sent me a Certificate to proove this. Do I need to send this to the Tenant, I presume the Estate Agent has done this when they did all the admin, but I will check with them.

If I were to DIY, am I looking at an Accelerated Possesion Order, where would I get these forms? Are they available on the internet and where. Also are they very difficult to fill out. Thanks so much for your help so far everyone, I really really appreciate it, I'm finding this very stressfull, especially as I have just given birth to our first child.

[Snorkerz]

A depost has been protected and I have confirmed that with the Estate agent who found my tenant, they have sent me a Certificate to proove this. Do I need to send this to the Tenant, I presume the Estate Agent has done this when they did all the admin, but I will check with them.

The deposit must have been protected AND the 'prescribed information' given to the tenant before the service of the s21

If I were to DIY, am I looking at an Accelerated Possesion Order, where would I get these forms? Are they available on the internet and where. Also are they very difficult to fill out.

Form N5b available from the court service website. It is reasonably straightforward, you just need to make sure you read the questions carefully before answering - the members of this site are usually willing to give advice on this.


Don't forget - if LHA tenants stop paying rent, you can get it paid directly to you by the council

If tenant is in breach of her contract - section 8 may be cheaper and quicker than a s21.

[westminster]

Date Of Expiry of this Notice: 10th April 2011

From what you have said above the Section 21 notice appears to be valid.

Are you saying this based on the Jeffrey/lawcruncher interpretation of s.21? i.e. that a s.21(1)(b) notice may expire before the end of the fixed term?

[Kirst1406]

Thank you Snorkerz.

[Paul Gibbs]

This is a notice within the fixed term. There is no requirement for it to end on a term of the tenancy, it simply needs to be for at least 2 months duration. It was posted on 7th February and actually received on 8th February. The expiry date is over 2 months in length so its valid.

The notice states that it expires on 10th April rather than saying possession is required on 10th April.

[Snorkerz]

This is a notice within the fixed term. There is no requirement for it to end on a term of the tenancy, it simply needs to be for at least 2 months duration. It was posted on 7th February and actually received on 8th February. The expiry date is over 2 months in length so its valid.

Yes, but it expires within the fixed term - 10th April. Had it stated 'after 10th April', I would have been happy to agree that it was valid, but s21 says "on or after the coming to an end of an assured shorthold tenancy" and it doesn't come to an end until 23:59:59 on the 10th.