Incorrect section 21 notice issued

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  • Incorrect section 21 notice issued

    My letting agent issued the incorrect s21 notice. They issued a s21(1) instead of a 21(4).

    As a result the court did not automatically issue a possession order after I submitted the accelerated procedure forms and have now called a court hearing.

    My question is, is the judge going to throw the case out on technical grounds, and if so what's the point of the hearing?

    No defence is being filed as the tenant wants a council house.

    Can I sue my letting agent for anything?

  • #2
    Originally posted by tahmur View Post
    My letting agent issued the incorrect s21 notice. They issued a s21(1) instead of a 21(4).

    As a result the court did not automatically issue a possession order after I submitted the accelerated procedure forms and have now called a court hearing.

    My question is, is the judge going to throw the case out on technical grounds, and if so what's the point of the hearing?

    No defence is being filed as the tenant wants a council house.

    Can I sue my letting agent for anything?
    Possibly agent is:
    i. negligent; and/or
    ii. in breach of contract- failure to use proper procedure.
    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


    • #3
      It is totally up to the judge. There is no requirement to use the correct form to use the s21 procedure, just that at least two months notice be served (ending on a rent day in the case of a statutory periodic tenancy.)
      If you get a judge who is empowered with common sense and you have got your dates right, then he will probably grant the possession order. If the judge is a tenant friendly one, like so many are, he will use every excuse he can not to kick the poor tenant out. At least your judge has not refused your application out of hand and has called a hearing to gain some clarification (or to tell you that you've used the wrong form.) If at the hearing, you politely point out to him that whether the section of the act is correct or not, you have given the correct amount of notice, in writing, and this is, you believe all the law requires.

      Let us know how you get on.

      P.P.
      Any information given in this post is based on my personal experience as a landlord, what I have learned from this and other boards and elsewhere. It is not to be relied on. Definitive advice is only available from a Solicitor or other appropriately qualified person.

      Comment


      • #4
        The problem is it had become a statutory periodic tenancy, so the 2 months did not end on a rent day.

        So strictly the correct notice had not been given.

        By the time of the hearing however, the tenant would have had about 6 months notice!

        Is the fact the tenant is not defending it help my case?

        Comment


        • #5
          Wonder if this situation would have been avoided if the excellent Lawpack Section 21 Notice had been used? This notice is the same for all Section 21 actions.

          Expiry date After ............................

          or (if this notice would otherwise be invalid) I require possession on the first date after:-
          • at least two months after the service upon you of this notice, and
          • (if your tenancy is for a fixed period) a date not earlier than the end of the fixed period. or
          • (if your tenancy is a periodic tenancy) the last date of a period of your tenancy but no earlier thant the date on which your tenancy could lawfully be ended by a notice to quit
          Note that the date specified is not a rent due day but referenced as after the preceding day.
          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
            Allthough the the s21 doesnt expire on a rent day i beleive it only has to if the start of the 2 months notice is in the periodic period as well.

            So if it was a 6 month ast and notice given on month 5 and expires on month 7 it is ok.

            But if it is already in periodic when s21 issued it should expire the day before rent due/start day of month

            Comment


            • #7
              It already was in periodic, that's the problem.

              It's up to the judge now.

              My court case is on 22 March, and I have already issued the correct notice, on a without prejudice basis, which expires in April.

              So if the judge throws it out, I can start again in a couple of weeks.
              Last edited by tahmur; 09-03-2007, 07:33 AM. Reason: Spelling correction.

              Comment


              • #8
                let us know how you get on

                good luck

                Comment


                • #9
                  I have posted this before but there is an article in the Solicitor's Journal in the October or November 2005 Edition by Gary Webber & Daniel Dovar stating that if the incorrect S.21 (1)(b) Notice had been served instead of a (4)(a) during a periodic tenancy then it is not necessarily void, and that a judge should accept it. If you can source a copy of the article you could use it in court if necessary. It might even be on this site already so look in the home page under "articles" funnily enough!
                  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


                  • #10
                    Originally posted by Paul_f View Post
                    I have posted this before but there is an article in the Solicitor's Journal in the October or November 2005 Edition by Gary Webber & Daniel Dovar stating that if the incorrect S.21 (1)(b) Notice had been served instead of a (4)(a) during a periodic tenancy then it is not necessarily void, and that a judge should accept it. If you can source a copy of the article you could use it in court if necessary. It might even be on this site already so look in the home page under "articles" funnily enough!
                    Agree Paul's post is a key to resolving the OP's problems but these difficulties can be avoided.

                    In my view the Lawpack S21 notice, that does not stipulate which subsection it is using and has "(if this notice would otherwise be invalid)" proviso, is probably less liable to errors than those designed around the subsections.
                    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


                    • #11
                      Has anyone got a copy of this article in Solicitor's journal? You have to be a subscriber to download it.

                      Comment


                      • #12
                        Originally posted by tahmur View Post
                        Has anyone got a copy of this article in Solicitor's journal? You have to be a subscriber to download it.
                        Try your local business library or even local law society in nearest town.
                        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


                        • #13
                          Just had it faxed from publidher for £17. A rip off, I know!

                          Comment


                          • #14
                            Would it be too much to ask now that you have it to put a copy on the forum????

                            cheeky i know

                            Comment


                            • #15
                              After spending my hard earned cash I just found a free link to the same article on another website.

                              http://www.innovativesoftware.net/as...21notices.html

                              Enjoy!

                              Comment

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