Cautionary tale re poss'n application failure

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    Cautionary tale re poss'n application failure

    Hi, had an experience at court today which I want to share as a cautionary tale!

    Sep 05 i let a property to a colleague, as i thought i could trust the person, didn't get them to sign an AST (first mistake!).

    Throught the remained of 05 numerous small problems re payments, noise and damage occurred so early in 06 decided that action was needed and served a section 8 notice, i also sent a tenancy agreement to clarify the terms entered into at the start of the tenancy, at this point tenant claimed to be seriously i'll (cancer) so witheld taking court action (second mistake).

    Aug 06 it came to light that this was a lie. at this point i chose that i nolonger wanted this person as a tenant. 1st Sep 06 served a section 21 notice to expire on 3rd Nov, two calender months plus a couple of days to make sure it was over the statutory requirement (third mistake).

    Notice expired and tenant didn't move out, applied to court early November and as there was no signed tenancy applied for a possession hearing rather than using the accelerated possession procedure (fourth mistake).

    Today the judge dismissed the hearing declaring the notice invaild as it was too long. He ruled that the tenancy is not an AST but a periodic tenancy and therfore the notice needed to end within a rent payment period, in this case the last day of October. He had a little rant about how it was wasting court time and should have been dealt with through accelerated possession. He also went on to mention that the notice would have stood if he had deemed the tenancy to be an AST as the requirement is a minimum of two months.

    The ironic thing is that the tenant and tenants represenative had no issue with the notice and had reached an amicable agreement with myself in the court waiting room of possession on suspended terms yet we never even got chance to discuss this in front of the judge.

    From this i've learnt the following:
    1. Never rent to collegues, friends or family.
    2. Always do a written tenancy, no matter how well you know someone.
    3. Be extremely wary of any sob story a tenant gives.
    4. Don't think that by giving more notice than actually required you are doing the right thing.
    5. Even if there are potential issues, if going the s21 route, always use accelerated possession procedures, the judge will decide if he want a hearing.
    6. Expect the judge to the pedantic over minor technical issues.
    7. If using periodic tenancies ensure the notice concides with the rent period.
    8. When at court, even if you are sure you have got it right, something can always go wrong!

    i've been a landlord for years and should have known better on some of these things but i hope anyone new to letting can learn from this experience.

    Regards all
    Pete

    #2
    The Judge had a duty to reject a legally flawed application for a Possession Order.

    The warning you may have given seems a little unfair.

    "Expect the judge to the pedantic over minor technical issues."
    In a case we had against tenants the judge was absolutely fair and helped determine the facts of the case finding most points against the tenant but pointing out a few deficiencies in our case too.

    Whilst a tenancy without a written agreement is determined to be an AST I understood from the guidance notes with the application forms for a Possession Order that the landlord could only apply for Accelerated Possession if a written tenancy agreement could be provided in the application. If I have got this wrong I stand to be corrected.

    It will be interesting to see if people have had different experiences in different Courts.

    Thanks for posting - it's so important to get the dates right when serving notices and ,when they are served at last moment, allow for non-working days!!!
    Vic - wicked landlord
    Any advice or suggestions given in my posts are intended for guidance only and not a substitute for completing full searches on this forum, having regard to the advice of others, or seeking appropriate professional opinion.
    Without Plain English Codes of Practice and easy to complete Prescribed Forms the current law is too complex and is thus neither fair to good tenants nor good landlords.

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      #3
      I'd be inclined to question if the judge is actually correct. I'm surprise you can be penalised for covering yourself and giving a couple of days extra on the notice period.

      Did you put something along the lines of "possession will be required after..."?

      Comment


        #4
        Originally posted by RichieP View Post
        I'd be inclined to question if the judge is actually correct. I'm surprise you can be penalised for covering yourself and giving a couple of days extra on the notice period.

        Did you put something along the lines of "possession will be required after..."?
        As it was periodic, s.21 Notice had to expire at end of tenancy period (as well as being at least two months' notice), hence Judge's comments re end of October. Presumably 3rd November was three days into tenancy period, if rent due on 1st of each month in advance.
        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).

        Comment


          #5
          Originally posted by RichieP View Post
          I'd be inclined to question if the judge is actually correct.
          We only have the original posters version of what the judge allegedly concluded. There could be additional factors that the judge considered in giving his decision. It's sometimes difficult in the Courtroom to record exactly what was said with complete accuracy.

          If you are required to give a clear two months notice BEFORE a specific date then one cannot give a shorter period of notice but extend the date after that specific date.

          e.g. during the fixed term if the end of a rental period was March 4th and the intention was to give a two month notice gaining possession on March 5th you would need to serve a notice before January 4th. Serving a notice on January 7th to expire on March 7th would not be a valid notice

          Notices are intended to come into the effect the day following the date specified on the notice. That's the reason one puts "after" the specified date.
          Vic - wicked landlord
          Any advice or suggestions given in my posts are intended for guidance only and not a substitute for completing full searches on this forum, having regard to the advice of others, or seeking appropriate professional opinion.
          Without Plain English Codes of Practice and easy to complete Prescribed Forms the current law is too complex and is thus neither fair to good tenants nor good landlords.

          Comment


            #6
            I acknowledge the error with my notice and will learn from it, the judge was correct. my comment regarding expecting the judge to be pedantic of technical issues was purely to warn anyone who might think they won't look at these details, its right and proper that he ensures the notice is valid.

            the exact wording on my notice was 'you are required to leave the property by the 3rd of November 2006'. As far as i'm aware there is no prescribed set wording or format for a notice, purely that there must be certain information included. However if someone could put me right please do so.

            The judge was very instant that as it was a section 21 notice, despite no signed tenancy, it should have gone down the accelerated possession procedure, he made it quite clear that if was up to them to decide if a hearing was necessary. As it not something that comes up much I doubt there is consistent aproach between courts, The court staff couldn't advise me either way so I did what I thought best and in the instance of my local court, or possibly that particular judge, I made the wrong call.

            Chaulk it up to expereince, life gets boring if you stop learning!

            Pete

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