Help please - is my Section 21 notice ok?

[Snorkerz]

I would certainly ask the original solicitor which statute states this - there is o such demand anywhere in section 21.

The practicality is you will rely on whichever notice you believe complies with the statutes requirements. When applying to the court you will include a copy of that section 21 notice and all references in the paperwork (usually form n5b) will be to the same notice.

[westminster]

Thank you everyone for your advice. I have spoken to a 2 different solicitors who have given me conflicting information and was wondering if anyone could comment on this from their knowledge.

Were these solicitors both specialists in landlord & tenant law? Or just average 'high street' solicitors?

One solicitor has informed me that you cannot serve two section 21 notices within the same two month period

Statute does not support this assertion; in other words, he's making it up. If you remain in doubt, ask this solicitor to show you the statute (or case law) which backs up what he's told you. The fact is that s.21 says only that the court must be satisfied that the T has been given not less than two months notice, and nothing about how many notices may be served.

...and the judge will look at this dimly and especially when both notices are different i.e one served by my agent by recorded delivery on 28th October 2011, being a section 21.4a heading (although everything else is correct on the notice such as dates and reference notes referring to the fixed tenancy at the bottom) and the other served by me on 29th October, by hand through letter box which is a section 21(1)a heading.

Nevertheless, you don't apply for possession based on more than one notice. In your situation, you choose the one most likely to be valid and correctly served. If the notice delivered by you (or by your mother, according to post #4) on 29th October was delivered in the presence of a witness, I would go with that one.

Another solicitor said you can serve 2 section 21 notices in the same 2 month period but it depends on what the dates of service/deemed service were. He said you do not have to wait for the first notice to expire before you can serve a second notice.

This solicitor sounds nearer the mark and I suspect you may be presenting a garbled version of what he told you. You can serve more than one s.21 notice in the same two month period full stop; you can serve any number of s.21 notices after the tenancy commences. The validity of each notice will depend on the date of deemed service/expiry date (and other factors). Each notice is either valid or invalid on a stand-alone basis, and its validity is unaffected by any other notice served.

[Edit: I have quoted s.21 below so you can see with your own eyes what the requirements are, and that there's nothing about serving more than one notice].

[westminster]

s.21 Housing Act 1988

21 Recovery of possession on expiry or termination of assured shorthold tenancy.
(1) Without prejudice to any right of the landlord under an assured shorthold tenancy to recover possession of the dwelling-house let on the tenancy in accordance with Chapter I above, on or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy, a court shall make an order for possession of the dwelling-house if it is satisfied—

(a) that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than an assured shorthold periodic tenancy (whether statutory or not); and
(b) the landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than two months’ notice in writing stating that he requires possession of the dwelling-house.

(2) A notice under paragraph (b) of subsection (1) above may be given before or on the day on which the tenancy comes to an end; and that subsection shall have effect notwithstanding that on the coming to an end of the fixed term tenancy a statutory periodic tenancy arises.

(3) Where a court makes an order for possession of a dwelling-house by virtue of subsection (1) above, any statutory periodic tenancy which has arisen on the coming to an end of the assured shorthold tenancy shall end (without further notice and regardless of the period) in accordance with section 5(1A).

(4) Without prejudice to any such right as is referred to in subsection (1) above, a court shall make an order for possession of a dwelling-house let on an assured shorthold tenancy which is a periodic tenancy if the court is satisfied—

(a) that the landlord or, in the case of joint landlords, at least one of them has given to the tenant a notice in writing stating that, after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the dwelling-house is required by virtue of this section; and
(b) that the date specified in the notice under paragraph (a) above is not earlier than the earliest day on which, apart from section 5(1) above, the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the notice under paragraph (a) above.

(4A) Where a court makes an order for possession of a dwelling-house by virtue of subsection (4) above, the assured shorthold tenancy shall end in accordance with section 5(1A).

(5) Where an order for possession under subsection (1) or (4) above is made in relation to a dwelling-house let on a tenancy to which section 19A above applies, the order may not be made so as to take effect earlier than—

(a)in the case of a tenancy which is not a replacement tenancy, six months after the beginning of the tenancy, and
(b)in the case of a replacement tenancy, six months after the beginning of the original tenancy.

(5A) Subsection (5) above does not apply to an assured shorthold tenancy to which section 20B (demoted assured shorthold tenancies) applies.

(6) In subsection (5)(b) above, the reference to the original tenancy is—

(a)where the replacement tenancy came into being on the coming to an end of a tenancy which was not a replacement tenancy, to the immediately preceding tenancy, and
(b)where there have been successive replacement tenancies, to the tenancy immediately preceding the first in the succession of replacement tenancies.

(7) For the purposes of this section, a replacement tenancy is a tenancy—

(a)which comes into being on the coming to an end of an assured shorthold tenancy, and
(b)under which, on its coming into being—

(i)the landlord and tenant are the same as under the earlier tenancy as at its coming to an end, and
(ii)the premises let are the same or substantially the same as those let under the earlier tenancy as at that time.

[sam45]

Thank you so much for all your detailed and enlightening responses.

Yes, the solicitors are from renowned specialist tenant eviction companies.

The second solicitor also said there may be a problem if a defense is raised and T are the sort to deny receipt of anything. He also said as you have, that there are a variety of factors to take into consideration namely service dates on the notices and when they were delivered as it would more than likely be the notice that supercedes the other i.e the final one. If both
of the notices had same service date and deemed served day then maybe it would be a problem.

So what does he mean by supercede? As both my notices (even though service dates different) are deemed served on the 31st are they?

Thanks

[westminster]

Yes, the solicitors are from renowned specialist tenant eviction companies.

Lol, I'm not aware of any of those companies being 'renowned'.

The second solicitor also said there may be a problem if a defense is raised and T are the sort to deny receipt of anything.

That is why one obtains evidence of service (e.g. proof of posting, or a witness to hand delivery). The onus is, in fact, on the T to prove non-receipt if he uses that defence.

He also said as you have, that there are a variety of factors to take into consideration namely service dates on the notices and when they were delivered as it would more than likely be the notice that supercedes the other i.e the final one. If both of the notices had same service date and deemed served day then maybe it would be a problem.

So what does he mean by supercede?

As I said before, any s.21 notice served is either valid or invalid on a stand-alone basis. A s.21 notice served after a previous [valid] notice will not supercede or invalidate the previously served notice.

And I repeat, you would only base the application for possession on ONE notice; all that is relevant is whether that particular notice was valid and correctly served or not.

As both my notices (even though service dates different) are deemed served on the 31st are they?

A notice posted on Friday 28th October 2011 by first class post would usually be deemed served two business days later i.e. Tuesday 1st November 2011. However, the agent used a signed-for service, so if the notice was signed for on, say, Thursday 3rd November, then T might have a case to argue that that was the date of service (hence why it is inadvisable to use a signed-for service).

The notice delivered by hand on Saturday 29th October 2011 would be deemed served on the next business day, i.e. Monday 31st October.

[sam45]

I understand and thanks.

I am doing the N5b form myself (as I have read that you can diy) and just needed to check a couple of things.

a) Number 2 says 'On the ........,the claimant entered into a written tenancy agreement with the defendants.A copy of it markd A is attached to this claim The tenancy did not immediately follow an assured tenancy which was not an assured shorthold tenancy. One or more subsequent written tenancy agreements have been entered into. A copy of the most recent one, made on ........ marked A1 is also attached to the claim form.

WHat do I put in here as I have 2 tenancy agreements - the first 16 Dec 2009 to 15 Dec 2010 (signed 16th Dec 2009. The second 2 January 2011 to 1 Januaury 2012 (dated 17 November 2010).Is it the dates of the contracts or when contract commenced and ended?

b) Number 5 where it asks for the date of the notice, I presume means the date on 21(1)b and
not when I deemed it served (ie next day or 2 days in post , etc). Also if hand delivered through letter box with witness then is this 'delivered in person' or what do I write here?

c) What other things do I need - N115, N215 certificate of service and witness statement(are latter 2 same thing)?

Thanks

[sam45]

Hello,

Can anyone help please with my last post at all?

Just to clarify on a) the tenant has been living in house for 2 years.

Thanks