L serves s.21 Notice to help T obtain rehousing

Collapse
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

  • Paul Gibbs
    replied
    Sorry for the slight delay in replying, I have been a bit snowed recently. I have also looked into the issue of whether possession proceedings can be commenced before the notice has expired.

    I agree with NL that if a landlord was able to commence proceedings before the notice expired then the landlord is unlikely to recover costs.

    The best case I have found on the point is Lower Street Properties Ltd V Jones (1996) 28 H.L.R. 877

    In this case the landlord served a S21 notice and commenced proceedings a day before expiry. The Court of Appeal deal with this issue and below is what I think is the relevant extract from the judgment: -

    "I come, therefore, to the final point in relation to the notice. Mr James submits, with some force, that if a landlord cannot start proceedings to obtain possession until after the date specified in the notice given pursuant to section 21 (4) the tenant will in fact enjoy an extra period of grace before the case can be listed for hearing. Why should the landlord not, he asks rhetorically, start proceedings and then if the tenant surrenders possession as required by the notice the landlord will simply discontinue and pay his own costs. But if the tenant does not surrender by the time the matter goes before the judge the statutory requirements will be fulfilled and the judge will be able to make a possession order. I have considerable misgivings about such a course of action. In the first place, from the point of view of the tenant, I regard it as objectionable that having been given a period in which to leave, legal proceedings to obtain possession should be instituted against him or her before that period has expired. It is easy to envisage quite serious and wholly unwarranted damage being done to the tenant's credit rating as a result. Of course, he might at first not discover that proceedings had been commenced, but if he did discover before the date specified in the notice he might ask the court to set the proceedings aside as an abuse of process and if he were to do that an application might well succeed. Secondly, from the point of view of the court, it is I believe highly undesirable to add to overburdened lists contingent litigation.

    In the present case there is, I believe, an even more compelling reason for saying that the notice served on the June 16, 1994 could not be used to support proceedings commenced on the August 26, 1994 and that is that the notice itself said: “The landlord cannot apply for such an order ( i.e. an order for possession) before the notice has run out”.

    It may be that if the notice had been differently worded the landlord could, without offending against any of the County Court Rules , have started proceedings when they did and in due course obtain a possession order but this notice, worded as it is, could not in my judgment be used in proceedings begun on August 26, because those proceedings were themselves in breach of the assurance given in the notice."

    I think it is arguable that proceedings can commence before expiry unless the notice says that proceedings will not commence until after expiry.

    Leave a comment:


  • thesaint
    replied
    Originally posted by Kirst1406 View Post
    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.
    Is she getting housing benefit/Local Housing allowance?

    Leave a comment:


  • westminster
    replied
    Originally posted by Paul Gibbs View Post
    I agree with Jerrrey and Lawcruncher - the case is Gloucestershire HA v Phelps.
    Quote below from the landlordlaw blog, amidst a long discussion on the subject which occurred in tandem with the debate on here last month. It's only a county court judgment and it seems to support the argument that one cannot apply for possession before expiry of the fixed term (no-one is disputing the fact that an order cannot be operative before expiry of the fixed term).

    Gloucestershire HA v Phelps
    10 February 200 , Gloucester County Court
    Possession cannot be ordered under s21 within a fixed term (in absence of break clause)

    The claimant granted the defendant an assured shorthold tenancy on 4 February 2002 for a fixed term of 12 months. It was described as a ‘Starter Tenancy’ and included a clause that it would cease to be an assured shorthold after 12 months conditional on no possession proceedings having been brought.

    On 4 September 2002, the claimant served a s21 notice but cited rent arrears and anti-social behaviour, although no such behaviour was specified. The claimant brought a possession claim under the accelerated possession procedure. A possession order was made by a district judge without a hearing on 11 December 2002.

    The tenant appealed successfully because the possession order had become effective before the 12-month fixed-term tenancy had ended. HHJ Hutton stated that s21 specifically provides that possession may be granted only if the assured shorthold tenancy has actually come to an end at the time of the order. In this case it had not come to an end. The application and the possession order were premature. Although anti-social behaviour was raised in the claim, this was irrelevant because this action was not commenced under Housing Act 1988 s8.
    From: Housing Law Casebook, 4th edition by Nic Madge and Claire Sephton

    I'd also be interested to hear your views on NL's comment (Nearly Legal blog lawyer) on 7th Jan|11.50pm, towards the bottom of the comments.

    http://www.landlordlawblog.co.uk/201...t-your-tenant/

    Leave a comment:


  • Paul Gibbs
    replied
    I agree with Jerrrey and Lawcruncher - the case is Gloucestershire HA v Phelps.

    In any event the notice expires at midnight on 10 April 2011. Possession proceedings cannot be brought until the notice has expired, and therefore that would be the next day.

    If the notice had said I require possession on 10 April then that would be wrong, however, in this case it simply says that the notice expires on that day.

    Leave a comment:


  • jeffrey
    replied
    Originally posted by westminster View Post
    Yes, I know that, but as Snorkerz says, it expires before the end of the fixed term, so my question was about whether you agree with Jeffrey/lawcruncher, who both maintain that, based on a strict reading of the statute, a s.21(1)(b) notice may expire before the end of the fixed term, and possession proceedings may be started before the end of the fixed term, (but an order for possession cannot be made before the end of the fixed term).
    That summarises my views, except that the final ten words
    cannot be made before the end of the fixed term
    might better read
    if made during the fixed term cannot award possession operative before the end of the fixed term.
    It's the operative date, not the making of the Order, that must [by s.21] be no earlier than the term expiry date.

    Leave a comment:


  • westminster
    replied
    Originally posted by Paul Gibbs View Post
    This is a notice within the fixed term. There is no requirement for it to end on a term of the tenancy
    Yes, I know that, but as Snorkerz says, it expires before the end of the fixed term, so my question was about whether you agree with Jeffrey/lawcruncher, who both maintain that, based on a strict reading of the statute, a s.21(1)(b) notice may expire before the end of the fixed term, and possession proceedings may be started before the end of the fixed term, (but an order for possession cannot be made before the end of the fixed term).

    Leave a comment:


  • Snorkerz
    replied
    Originally posted by Paul Gibbs View Post
    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.

    Leave a comment:


  • Paul Gibbs
    replied
    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.
    Last edited by Paul Gibbs; 15-02-2011, 16:29 PM. Reason: because I am not concentrating

    Leave a comment:


  • Kirst1406
    replied
    Thank you Snorkerz.

    Leave a comment:


  • westminster
    replied
    Originally posted by Kirst1406 View Post
    Date Of Expiry of this Notice: 10th April 2011
    Originally posted by Paul Gibbs View Post
    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?

    Leave a comment:


  • Snorkerz
    replied
    Originally posted by Kirst1406 View Post
    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.

    Leave a comment:


  • Kirst1406
    replied
    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.

    Leave a comment:


  • midlandslandlord
    replied
    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

    Leave a comment:


  • Paul Gibbs
    replied
    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.

    Leave a comment:


  • fletchj
    replied
    Originally posted by mariner View Post
    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.

    Leave a comment:

Latest Activity

Collapse

Working...
X