Section 21 - struck out for absence of the word "after"

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    #16
    Originally posted by jghomer View Post
    Just to be clear then are we advised NOT to use the LLZ S21 form?

    And re-issue any that have already been issued? :-(
    Well I've spoken to the court manager today who looked briefly at the paperwork and agreed with me - he advised I put it in writing and he would send it up to the Judge for comment so I will report back in a week or two when I get a response.

    What REALLY annoys me with all this is that I was due to meet the tenant on Monday to get keys in return for cash payment, but I got a text today saying he's not leaving now - obviously due to this judgement and he thinks he can stay another 2 months at least. Luckily I've served section 8 as well although possession claim online are not accepting any of my cards at the moment :-( grrrrrrr.

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      #17
      Originally posted by westminster View Post
      A s.21(4)(a) notice must give T at least two months and expire at the end of a tenancy period (not a rental period).
      After: [date] or,
      if this notice would otherwise be ineffective, after the date being the earliest date not earlier than two months after the date of service of this notice when shall expire a period of the assured shorthold tenancy.

      Just to confirm Westminster, in the case of my tenancy now being periodic the last words above should read "...shall expire a period of the periodic assured shorthold tenancy"?

      Comment


        #18
        Originally posted by Parchester View Post
        Just to confirm Westminster, in the case of my tenancy now being periodic the last words above should read "...shall expire a period of the periodic assured shorthold tenancy"?
        No. I quoted the wording exactly as is. See http://nearlylegal.co.uk/blog/2010/0...ate-of-notice/

        Comment


          #19
          So can I assume that The words "assured shorthold tenancy" is a catch all that includes a periodic? I'm putting this sentence in now for the new notice so want to make sure I've got it correct and in that link it's not clear if the case was for periodic or statutory.
          Thanks
          P

          Comment


            #20
            Originally posted by Parchester View Post
            So can I assume that The words "assured shorthold tenancy" is a catch all that includes a periodic?
            'Assured shorthold tenancy' is the type of tenancy in terms of statutes. Whether it is a fixed term AST is down to agreement between T and LL.

            Comment


              #21
              Originally posted by Parchester View Post
              So can I assume that The words "assured shorthold tenancy" is a catch all that includes a periodic? I'm putting this sentence in now for the new notice so want to make sure I've got it correct and in that link it's not clear if the case was for periodic or statutory.
              An assured shorthold tenancy may be fixed term, contractual periodic (created by contract), or statutory periodic (arising by statute). The link clearly refers to s.21(4)(a), which is the subsection relating to serving notice in a periodic tenancy.

              I said earlier that 'arguably the tenancy periods ran noon 1st - noon 1st of the month, and your notice should have said you required possession "after 12 noon 1st February 2011"'. But it is also arguable that you could not grant half a day's tenancy, i.e. up to noon on 1st May 2008, because the law generally deals only in whole days, in which case the fixed term would expire at midnight of 1st May, with periods running 2nd - 1st of the month.

              The judge's comments are ambiguous. While he says that the term ended "on 1st May 2008" he doesn't explicity say that your expiry date of 31st January 2011 is wrong (albeit he cites that case where the notice expiry date was wrong and also lacking the word 'after'). Personally, I can't see how 31st January could have been right whichever way you calculate the tenancy periods.

              Comment


                #22
                Whilst I hesitate to say anything that undermines confidence in the precedents available on LLZ, I think this thread demonstrates the dangers of using precedents available online. First, the precedent may be faulty and, secondly, it may be perfectly adequate but not the one you want.

                I am all in favour of legal DIY where appropriate, but the problem for any particular layman is knowing when it is appropriate for him to go it alone. Lawyers are expensive and it is therefore understandable if people are tempted to go DIY. Law is bit like medicine. If you go to the doctor he will, hopefully, diagnose your condition correctly and if appropriate prescribe medication that will not only cure you but is not incompatible with any other medicine you may be taking or any other condition you may have. If you engage in self-diagnosis and buy over-the-counter medicine you may buy the wrong thing and/or buy something that you ought not be taking. We often end up going the doctor to be told: "You should have come to see me sooner".

                Notices are very easy to get wrong. Most negligence claims against solicitors involve an error in some procedural matter rather than getting the law wrong. Checking routine documents carefully is part of good practice. Preparing standard notices is something often given to trainee lawyers. They do not always get it right. If someone who has made an intense study of the law can get a notice wrong then you have to concede that there is a greater chance of someone who has not studied the law getting it wrong.

                Section 21 notices are a bit of a special case because whilst the courts have a general policy that they will overlook an error in a notice if the recipient is not prejudiced by it so that the purpose of the notice is clear, they will insist that a section 21 notice complies strictly with the requirements set out in section 21. So, if the correct date to insert in a section 21 (4) notice is 23 July 2011 and you put in 22 July 2011 the notice will be invalid. However, if you put in 22 July 2010 you will probably get away with it because the error is obvious.

                Comment


                  #23
                  Confused now what date to put in! I had just re-written it to say "After 12 noon 1st July" (i.e. now giving a nother 2 months notice period) as previous advice.

                  Should I change this now to "After 1st July" and not specify the time? I guess this would be the safest as if there is judged to be an error it would be in the tenants favour and so probably accepted.

                  Although I can see where confusion lies in having a noon expiry date (first AST I ever used, and never again!), I can also see that expiry "After 31st January" could still be conceived as being correct because "12 noon" is in the following day.

                  Comment


                    #24
                    Originally posted by Parchester View Post
                    Confused now what date to put in! I had just re-written it to say "After 12 noon 1st July" (i.e. now giving a nother 2 months notice period) as previous advice.

                    Should I change this now to "After 1st July" and not specify the time? I guess this would be the safest as if there is judged to be an error it would be in the tenants favour and so probably accepted.
                    I don't know the right answer - but my guess would be "after 1st July".

                    Although I can see where confusion lies in having a noon expiry date (first AST I ever used, and never again!), I can also see that expiry "After 31st January" could still be conceived as being correct because "12 noon" is in the following day.
                    No, s.21(4)(a) specifies "after a date specified in the notice, being the last day of a period of the tenancy".

                    Comment


                      #25
                      Thanks Westminster I think I understand your thinking now - the fact that is says "day" implies a full day and the last day is the 1st morning.
                      Cheers
                      P

                      Comment


                        #26
                        Nothing to stop you serving more than one notice allowing for all possibilities.

                        Comment


                          #27
                          Originally posted by Lawcruncher View Post
                          A section 21 notice is not an "etc". The Regulations apply where "a landlord gives a notice to quit any premises let as a dwelling, or a licensor gives a notice to determine a periodic licence to occupy premises as a dwelling".
                          Yes; and, as westminster frequently notes (e.g. in post #11), a s.21 Notice is not a Notice To Quit.
                          Consequently, those 1988 Regulations do not apply to a s.21 Notice: neither s.21(1)(b) nor s.21(4)(a).
                          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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