n5b completing, help require

[khldbgm]

I recently comeacross with this site,

preparing to file n5b, but checking whetherr my s21 correct or defective.

AST expired on 30th june 2011,
In AST rent payable 1st of every month.

S21(4)a served on 28th october 2011, (got witness statement)
mention date of expiry in s21 as after 3 january 2012,

And also do i need the original Tenancy agreement to send with n5b,

and do i need 3 copies of n5b and 3 copies of every document.

please correct me if i am wrong,
waiting for your kind response.

[westminster]

preparing to file n5b, but checking whetherr my s21 correct or defective.

AST expired on 30th june 2011,
In AST rent payable 1st of every month.

S21(4)a served on 28th october 2011, (got witness statement)
mention date of expiry in s21 as after 3 january 2012,

*If* the last day of the fixed term was 30th June 2011, the periodic tenancy began on 1st July 2011, with tenancy periods running 1st - last day of the month.

A s.21(4)(a) notice must give at least two months but it must also expire at the end of a tenancy period, i.e. in your case, on the last day of a month. So the notice served on 28th October 2011 is defective if it expired "after 3rd January 2012". It should have expired either "after 31st December 2011" or "after 31st January 2012", etc.

[khldbgm]

thank you westminster,

why it is defective, i give 3 more days extra because
1st and 2nd january 2012 is the bank holidays, so i said
after 3rd jan.

[westminster]

It is defective because s.21(4)(a) of Housing Act 1988 says that the notice must expire at the end of a tenancy period - you can't just ignore this and 'add on' a few extra days.

[Snorkerz]

In the eyes of the law, an s21 is about making someone potentially homeless. They regard that as a serious issue and therefore insist that you do everything exactly as it should be done. The law states

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

So, as you see, the date specified must be the last day of a period of the tenancy.

However, if you used a template for the s21(4)(a) notice it may have some saving words on it like this: After 3rd January 2012 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. Following the case of Elias v Spencer [2010] EWCA Civ 246 such wording will be sufficient to validate your s21 BUT you will not be able to commence your claim until the following period end - so your n5b should not be submitted before 1st February.

If it has this exact wording, you can cite Elias v Spencer if there is a query and the judge will have to accept it (so long as no other errors). If you have similar but not identical, then you must surely have a chance, but it would be at the judges discretion.

[oaktree]

Westminsters advice is correct if one takes it that the tenancy actually started on the 1st of the month.

The rent period is determined by the date the tenant moved in, not the start of the periodic term, or even the date the rent is paid. So if the tenant moved into the property on say, the 15th of the month, then the rent period is from the 15th to the 14th of the next month regardless of the date or period they pay their rent. Thus any S21(4)(a) would need to reflect the actual rent period not the period the rent is paid if different.

This is of course all on the assumption that the tenant is actually on a monthly tenancy.

You also say it was served on the 28th October. If the tenancy did start on the 1st of the month this may also be important. The 28th october was a Friday; the saturday and sunday would be excluded from service unless it was actually placed in the tenants hand on the friday and usually before 4.30pm.

In what manner was it served? by hand? by first class post? By 'served' do you mean the day the notice was due to start from or the day it was actually handed to the tenant? If sent by first class post it wouldn't be deemed to be served until two working or business days later; so if you sent it to them on the friday it wouldn't have taken effect until the following Tuesday which would also be a day too late.

You need to go back to square one, read some of the info on here and then try again. If you go to court on a faulty S21, you won't even get a hearing and will be £175 out of pocket.

[Snorkerz]

The rent period is determined by the date the tenant moved in, not the start of the periodic term,

On what basis do you make this statement? If the fixed term was monthly from 21st July to 21st January would you say that each period runs from 21st to 20th? If that is the case, why does the first SPT period (which the agreement states is a month) only run from 22nd to 20th )because 21st is in the fixed term?

[westminster]

Westminsters advice is correct if one takes it that the tenancy actually started on the 1st of the month.

The rent period is determined by the date the tenant moved in, not the start of the periodic term, or even the date the rent is paid. So if the tenant moved into the property on say, the 15th of the month, then the rent period is from the 15th to the 14th of the next month regardless of the date or period they pay their rent. Thus any S21(4)(a) would need to reflect the actual rent period not the period the rent is paid if different.

This is of course all on the assumption that the tenant is actually on a monthly tenancy.

The date the fixed term commenced is irrelevant. What is relevant is the date of fixed term expiry, as the periodic tenancy begins the day after the last day of the fixed term. The tenancy periods are based on the frequency with which rent is payable. OP says that rent is payable on the 1st of the month, therefore the tenancy periods are monthly.

It is confusing to refer to rental periods. A s.21(4)(a) notice must expire at the end of a tenancy period, not a rental period.

"...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"

[khldbgm]

thanks for your kind advices,

so shall i need to issue a new notice or if the same notice i can use after 31 january 2012 to
attach with n5b.

[Snorkerz]

Once invalid, always invalid.

The only way you can use the current s21 is if it has the 'saving words' I described above.

[khldbgm]

n5b completing, help require

I need 3 copies of n5b,

1) is that means fill the firstone and then make two photo copies of that.

or

2) all 3 must b original.

and also do i need to mark A B C on the original evidences or shall i use
pencil to mark it.

thanks

[westminster]

There is no point in applying for possession on the basis of a defective s.21 notice. From what you have told us, the notice is defective, unless it contains the saving clause quoted by Snorkerz in post #5.

[khldbgm]

still i need info for future uuse