section 21 - contract lost/unsigned help

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    section 21 - contract lost/unsigned help

    Please advise. I have a tenant who I wish to evict under section 21. There is a contract however it remains unsigned and expires on 3/12/2012. Can I use a fixed term section 21 or as the contract is unsigned does that mean the tenant could appeal meaning I would have to issue a periodic section 21. As the contract is unsigned(at least by me. Tenant was a friend) is she classed as an ast? Can I serve both fixed term and periodic at the same time as I'm not sure how the tenancy is classed(unsigned ast) also.she has hardly ever paid full rent so could I issue section 8? Again complicated as how can I prove no rent has been paid. The little she has paid was cash. I'm at my witts end as I can't afford the mortgage and she who was meant to be my friend refuses to leave and can't/won't pay. Any help appreciated

    #2
    It is an AST - you say unsigned by you - is there a copy with the Ts signature?

    Section 21 - it is possible to produce a section 21 notice that complies with both s21(1)(b) and s21(4)(a).
    Unfortunately, without an actual tenancy agreement, the notice is going to need to be around three months and you'll not be able to use the accellerated process. That fact means that if you can, you'd be quicker using . .

    Section 8 - you can use this process, you would just need to convince the judge what rent was due, and state what has been recieved. If tenant disagrees with the latter, they will have to prove they have paid more.

    www.tenancyservices.co.uk/

    Comment


      #3
      Thank you for your advice. It's my fault she was a friend and I was stupid. there are a few complications. Ok there are two ast's the first is signed by both parties and expired a while back she has it but I do not. The second expires on 3/12/12. I did not.sign this so I guess she could sign her copy.at any time. Basically I possess no.signed.agreements. my fear is if I serve a fixed term section 21 she could produce the old expired AST which she has a signed copy of meaning I would have served the wrong notice. If I serve a periodic section 21 she could produce the new AST? I doubt with section 8 she would prove she paid as she hasn't but could she argue that I have neglected my resposibilities as their are some mould and damp issues? The situation is complicated further as I rashly served a section 21 by hand with.the wrong date expiring before the end of the fixed term. If I serve another correctly and get postage receipts as I have read I should do what's to stop her pulling out the wrong one and saying that's the one I sent?. I'm guessing u will advise the section 8 route? No deposit was taken nor does it say anything about deposit in either ast. Can I serve both forms of section 21 and a section 8 to cover all basis. I know I could do with a solicitor but I cannot afford the fees. Thanks for any advice once again. The AST is simple and I purchased this from lawdepot.co.UK. I can email a.copy if needed. It says rent is due on or before the 1st of each month. Arghhhhh ill never rent again.

      Comment


        #4
        I agree with Snorkerz - S21 and S8.
        Even if you have iffy paperwork you still have an agreement. Write her a final letter (you can find examples on the internet)saying you understand people sometimes have difficulty paying the rent and that you've tried to be sympathetic to her situation but that the arrears are now compromising your financial situation, ask her to pay her arrears of .....£ in full before .... (date 2 weeks from letter)after which time you will have no choice other than to seek possession and rent arrears through the courts. She will be liable for arrears, interest from the start of the arrears, court fees, legal costs and your expenses (You might or might not get these awarded to you court). Put in bold that her tenancy is at risk if the arrears are not cleared and that if a court orders a ccj it might affect her ability to get credit or housing in the future. Say that if she needs help or advice she should contact ...... (CAB, Housing Benefits etc and give contact details). Should the matter go to court you can show that you have done the best for your tenant.

        Complete both forms and ask a solicitor if you can have 15 minutes free to discuss the case. As you only have the one property you can get advice from CAB.

        Send all your paperwork to the courts (I think it's 4 copies), with the correct fee, outlining clearly what you have put in this thread. Get somebody to proof-read it. Tip - leave your paperwork for two days if you can before you send it off just incase you've missed anything off or want to rewrite part of it.
        You will hear from the court about 2-3 weeks after you post your papers. They will give you a court date which will be in around 6-8 weeks. (Therefore adding another 2 months for your tenant to get her act together or get into more arrears). They will send a copy of the paperwork (so be professional in what you write) and the court date to the tenant.
        I have found that at this point the tenant realises you mean business and might offer to pay in installments. If not, then you will need to attend a court hearing where you should stay calm and state your case. The judge will make a decision.
        In theory it isn't difficult to take somebody to court - it's just a new thing to learn to do and you have to be hard about a matter that involves money and a friend. Don't let it put you off letting your house again. Just be more careful. I've made loads of mistakes too !

        Comment


          #5
          Thanks again. I will serve section 8 and section 21 along with a letter to the tenant regarding the rent arrears. However I am still unsure which type of section 21 to serve. The unsigned contract expires on 3/12/12. The contract states the rent is due on 1st of each month. If I serve a combined section 21 as advised above I am unsure which expiry date to use. Can I serve both types of section 21 seperatley at the same time along with the section 8 so 3 types of notice all in all? Thanks

          Comment


            #6
            I would say the first TA signed by both of you is the one where the fixed term was defined and since then you have had a monthly periodic tenancy. You state when the "fixed" term expires but you haven't stated when it began. If a TA remains unsigned by you then the tenant has no copy to use as evidence of a further fixed term.

            As the tenant holds the only copy of the original fixed term then you have no evidence of a fixed term tenancy, although a court might be able to ask her to produce it.

            How much is the arrears and you need to relate to the amout due each week/month as again you only have given minimal detail and to obtain a good answer you need to give us more information? We can't guess.
            The advice I give should not be construed as a definitive answer, and is without prejudice or liability. You are advised to consult a specialist solicitor or other person of equal legal standing.

            Comment


              #7
              Originally posted by leematthew61979 View Post
              there are two ast's the first is signed by both parties and expired a while back she has it but I do not. The second expires on 3/12/12. I did not.sign this so I guess she could sign her copy.at any time.
              Her signing it now would be unlikely to create a new fixed term contract. See this thread
              http://www.landlordzone.co.uk/forums...d-by-one-party

              Basically I possess no.signed.agreements. my fear is if I serve a fixed term section 21 she could produce the old expired AST which she has a signed copy of meaning I would have served the wrong notice. If I serve a periodic section 21 she could produce the new AST?
              The solution is very simple. You serve a notice headed 'Notice under Section 21 Housing Act 1988'. After the usual bits about LL/T name, and address of the dwelling, you say that you, the LL, require possession "at the end of the period of your tenancy which will end after the expiry of two months from the service upon you of this notice". These exact words, which were ruled as valid in a binding judgment in Lower Street Properties v Jones [1996] 28 HLR 877.

              The point is, you don't put a specific date - the Lower Street wording is a 'catch all' formula. You just have to wait a bit longer before applying for possession, so that whichever way the T argues, the expiry date has passed.

              Serve the notice by hand, through the T's letterbox, with a witness present. Keep a copy of the notice.

              I doubt with section 8 she would prove she paid as she hasn't but could she argue that I have neglected my resposibilities as their are some mould and damp issues?
              A s.8 application is a potential can of worms with a problem tenant and a known potential for a disrepair counterclaim (even if the mould is due to the T's lifestyle, and not due to structural disrepair). Also, as a novice LL you could easily struggle with arguing your claim/defence. Personally, I'd stick with s.21 as it's a guaranteed route to possession.

              The situation is complicated further as I rashly served a section 21 by hand with.the wrong date expiring before the end of the fixed term. If I serve another correctly and get postage receipts as I have read I should do what's to stop her pulling out the wrong one and saying that's the one I sent?.
              Nothing to stop her, but it wouldn't get her anywhere when you'd be applying for possession under a new s.21 notice. The old invalid notice is completely irrelevant.

              Comment


                #8
                Hi

                Thanks to Westminser for for taking the time to give such an excellent reply.

                This is exactly what I wanted to hear as section 8 seemed really complicated. I really appreciate this advice I am very grateful.

                The original AST agreement began on 30/11/2011 and was for 6 months so would expire on 30/05/2011. I have just read it as I have a blank unsigned copy and the signing date was 02/12/12(probably because I amended the dates but left the signing date the same). This is the copy of which I believe the tenant possesses a fully signed copy of.

                The revised AST agreement commenced on 3/12/12 for a period of 12 months. This is the copy whereby neither I nor the tenant has signed copies. The signing date for this contract however unsigned was put as 2/12/2012.
                On both agreements the rent should be paid on or before the 1st of each month and is £800

                Would I be right then to assume that I could service this notice with a two month period on or after 4/10/12. I have read that with a periodic Section 21 the tenants rent date plays a part. Is this the case with what you are suggesting with the lower street wording?

                Please see section 21 template I amended below. Do I need to delete the "(1)(b)" part from the notice? Along with the heading “Fixed term”

                Thanks so much everyone who has replied to my post

                Are the sections at the bottom under NOTES and INFORMATION TO TENANTS necessary?

                HOUSING ACT 1988, Section 21(1)(b)
                as amended by the HOUSING ACT 1996

                Assured Shorthold Tenancy: Fixed Term

                NOTICE REQUIRING POSSESSION

                To:
                Ms Bloggs of
                Old Kent Road, London,

                From:
                Mr Smith of
                Bond Street, London,


                ADDRESS OF DWELLING
                I give you notice that I require possession of the dwelling house known as Oxford Street, London.

                DATE OF EXPIRY
                I the landlord Mr Smith require possession at the end of the period of your tenancy which will end after the expiry of two months from the service upon you of this notice.


                Signed: ______________________
                Dated: 4th October 2012


                NOTES

                On or after coming to an end of a fixed term assured shorthold tenancy, a court must make an order for possession if the landlord has given a notice in writing.
                Where there are joint landlords, at least one of them must give this notice.
                The length of the notice must be at least two months, and the notice must be given before or on the day on which the fixed term comes to an end.
                INFORMATION FOR TENANTS

                If the tenant or licensee does not leave the dwelling, the landlord or licensor must get an order for possession from the court before the tenant or licensee can lawfully be evicted. The landlord or licensor cannot apply for such an order before the notice to quit or notice to determine has run out.
                A tenant or licensee who does not know if he/she has any right to remain in possession after a notice to quit or a notice to determine runs out can obtain advice from a solicitor. Help with all or part of the cost of legal advice and assistance may be available under the Legal Aid Scheme. He/she should also be able to obtain information from a Citizen's Advice Bureau, a Housing Aid Centre or a rent officer.
                ©2002-2012 LawDepot.co.uk™

                Comment


                  #9
                  Sorry the dates I quoted for the tenancy agreements were the wrong year please assume signing dates and tenancy start dates as 2011 not 2012. As long as I don't make an error like that when I serve notice. Whoops

                  Comment


                    #10
                    I will reply in full tomorrow but am about to go to bed - meanwhile, please, if you can, edit your post to delete the names and the address in your s.21 draft notice. It may be too late, as there is a time limit for editing posts - but if you're still able to do so you will see an 'edit' button in the bottom right hand corner of your post.

                    Comment


                      #11
                      Hi. Sorry I tried to edit but it says the administrator allows only 60 minutes for editing.

                      Comment


                        #12
                        Originally posted by leematthew61979 View Post
                        The original AST agreement began on 30/11/2011 and was for 6 months so would expire on 30/05/2012. I have just read it as I have a blank unsigned copy and the signing date was 02/12/11(probably because I amended the dates but left the signing date the same). This is the copy of which I believe the tenant possesses a fully signed copy of.
                        A six month term commencing 30th November 2011 would expire 29th May 2012, unless the contract specified otherwise. This is important, so please clarify.

                        The revised AST agreement commenced on 3/12/11 for a period of 12 months. This is the copy whereby neither I nor the tenant has signed copies. The signing date for this contract however unsigned was put as 2/12/2011.
                        So the first contract was signed by both of you on 30th November 2011 (or 2nd December 2011). But it would appear that you also sent a revised contract, with a 12 month instead of 6 month term, on 2nd December - why did you do that? Did you send it with a covering letter, or have a discussion with the tenant about it before sending it?

                        Would I be right then to assume that I could service this notice with a two month period on or after 4/10/12.
                        No. A s.21 notice may be given at any time after the tenancy has commenced. It just has to give the T at least two months notice and expire either after the end of the fixed term (if the notice is given during the fixed term), or at the end of a tenancy period (if the tenancy is periodic).

                        I have read that with a periodic Section 21 the tenants rent date plays a part.
                        The frequency with which rent is payable determines the length of the tenancy periods in a statutory periodic tenancy, not the date on which rent is payable.

                        As I said, it is unlikely that the unsigned, second agreement replaced the first, signed contract. In which case, the tenancy is now periodic with periods running 30th - 29th of the month (assuming the contract did not specify that the last day of the term was 30th May 2012).

                        If the second contract did replace the first, then the fixed term would expire on 2nd December 2012 (assuming the contract did not specify that the last day of the term is 3rd December 2012), and if a periodic tenancy then arose the periods would run 3rd - 2nd of the month, as from 3rd December 2012.

                        Are the sections at the bottom under NOTES and INFORMATION TO TENANTS necessary?
                        No.

                        HOUSING ACT 1988, Section 21
                        as amended by the HOUSING ACT 1996

                        Assured Shorthold Tenancy

                        NOTICE REQUIRING POSSESSION

                        Tenant:
                        xxxx

                        Landlord:
                        xxxx

                        I give you notice under s.21 Housing Act 1988 that I require possession of the dwelling house known as xxxx

                        I require possession at the end of the period of your tenancy which will end after the expiry of two months from the service upon you of this notice.


                        Signed: ______________________ (Landlord)
                        Don't date the signature. The date of service is ascertained from the evidence of service, not any date on the notice.

                        We're working on the assumption that the tenancy is periodic. Therefore, a notice given today, 26th September, would expire 29th November. Or, a notice given next week on 3rd October would expire 29th December.

                        I think it's unlikely, since the s.21 does not specify (and does not need to specify) whether the notice is under s.21(1)(b) [fixed] or s.21(4)(a) [periodic], but if the tenant were to argue that the second contract is in place, you argue that the contract was not concluded. It's nevertheless possible that the court might agree with the tenant, but if you gave notice today, then you can argue that the period of the tenancy is the fixed term itself, so the notice would expire at the end of the purported fixed term, i.e. 2nd December 2012.

                        Ideally you should serve the notice this week by Friday 28th September, by hand, with a witness present. If you do this then the notice will expire either on 29th November, or 2nd December (depending on whether the tenancy's periodic or not). So 3rd December would then be the safest earliest date on which you could apply for possession. (N.B. I repeat that I am assuming the contract(s) did not specify an 'end' date, but simply said that the x month term commenced on x date).

                        I note that Snorkerz mentions a dual-purpose s.21 in post #2. He may be referring to something other than the Lower Street formula, so I would wait for him to comment as he may have a better suggestion.

                        Comment


                          #13
                          Thanks for the reply. You are correct to assume that the contracts did not specify an end date. I will use the above template as posted without any dates. With regard to service if I post it through the letter box and go with a friend as a witness does this class as service by hand? As no date will be specified on the section 21 what proof of date of service will I have? The tenancy agreements state that the tenancy will commence on 12 noon on (dates as above) so do I need to serve before 12 noon friday? Then apply for possession on 3rd December. Also just out of interest if this is valid what would stop a landlord posting a section 21 through the tenants letterbox without a date on it and then applying to the court for possession claiming it was served by hand two months ago and have a witness back up their claim? Many thanks.

                          Comment


                            #14
                            Originally posted by leematthew61979 View Post
                            With regard to service if I post it through the letter box and go with a friend as a witness does this class as service by hand?
                            Yes.

                            As no date will be specified on the section 21 what proof of date of service will I have?
                            Witness statements from both yourself and your friend, and a copy of the notice.

                            The tenancy agreements state that the tenancy will commence on 12 noon on (dates as above) so do I need to serve before 12 noon friday?
                            No.

                            Also just out of interest if this is valid what would stop a landlord posting a section 21 through the tenants letterbox without a date on it and then applying to the court for possession claiming it was served by hand two months ago and have a witness back up their claim? Many thanks.
                            The court assumes that a statement signed by a witness with a statement of truth is the truth, unless there is other evidence to the contrary.

                            As I said before, wait for Snorkerz to comment in case he has anything further to add or suggest.

                            Comment


                              #15
                              Thank you I will wait for snookerz. Just one more question. Is your draft 21 valid as you posted obviously including dwelling addresss and names.

                              Comment

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