S21 Invalid?

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    S21 Invalid?

    I am advised that an S21(1)B that was served on our tenants is invalid so we little chance of success in obtaining a possession order for our property unless we serve a further S21.

    The house is in England, the tenants paid a deposit which is protected in TDS.

    The tenancy is AST and was commenced on 10th May 2015, the deposit was paid and tenancy agreement signed 17th April 2015

    The property is managed by LA, The LA issued a S21(1)b notice of possession on 20th February 2016

    The notice format is outlined below.

    Housig act 1988 section 21 as amended by the housing act 1996 and interpreted in the case of Spencer v Taylor [2013] EWCA Cic 1600

    Assured Shorthold Tenancy ; Fixed term and Satutory periodic
    Notice Requiring Possession

    Name and address of tenant



    Name and address of landlord


    Address of dwelling
    I give you notice that I require possession of
    the dwelling house known as ;





    Date of expiry of this notice will be 2 months from the date of service upon you of this notice.


    Signature

    Dated 20th February 2016



    Name/ address of landlords agent

    Landlords agent

    Guidance notes


    __________________________________________________ ______

    A cover letter was served with the S21 advising the following points, sevice of S21 is in accordance with the housing act 1988, tenants to vacate premises at end of current tenancy, current tenancy expiry/vacating date.

    The tenancy term was for one year less one day so the expiry date was 9th May 2016.

    So is the S21 actually valid or is it liable to be rejected by a judge in court when seeking a possession order.

    #2
    Was deposit protected & PI served within 30 days of payment?? If so should be OK (?).
    I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

    Comment


      #3
      The notice expires within the fixed term so I think it's invalid.
      The notice needs to end on or after 9th May 2016.

      It would be better to specify an actual expiry date with an "on or after xx/xx/xxxx" and probably best to leave the reference to "Section 21" of the Housing Act 1988 at that.
      The more specific you are about the notice, the easier it is to get it wrong.
      When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
      Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

      Comment


        #4
        Firstly, 10 May 2015 to 9 May 2016 is one year, not one-year-less-one-day. One year less one day from 10 May 2015 is 8 May 2016.

        Secondly, can you fill in the questions from this post

        Comment


          #5
          Does the lady's tenancy note there is a deposit?

          Think you need to return deposit - not sure to whom - before any valid s21 may be served.
          I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

          Comment


            #6
            Agree with Jpk. This sec 21 is not valid because it expires within the fixed term the notice the notice should end after the 9th may.
            Any advice I give is my opinion and experience, I am as you also learning.

            Comment


              #7
              Thanks to all who have posted so far, our LA created all of the terms of the tenancy. The deposit was paid at the time of the tenant signing the AST.

              The required answers to the questions post are below,

              Q1 – Where is the rented property located (England / Wales / Scotland / N Ireland)? England

              Q2 – What type of Tenancy Agreement (TA) is this e.g. sole tenant / multiple tenant / room only? Sole tenant (couple)

              Q3 – What date did current TA start dd/mm/yy? 10th May 2015

              Q4 – How long was initial fixed term (6/12/24 months / other)? One year less one day

              Q5 – Does the TA state that rent is due weekly? / 4-weekly? / per calendar month (if so, on what same date each month)?
              Monthly, on the 10th of each month
              Q6 – Did the TA require a tenant damage deposit to be paid? If so, on what date was this paid (dd/mm/yy)?
              Yes, 17th April 2015
              Q7 – If your query relates to a notice for repossession from the landlord (a Section 8 or Section 21 notice) or a tenants's notice to quit to the landlord, please provide the exact date the notice was sent/received (dd/mm/yy).
              Notice sent 20th February 2016

              Q8 – Does the landlord live in the same property as the tenant? No

              Comment


                #8
                Are you sure about the answer to Q4. That would be a stupid length for a tenancy (although I'm not putting it past an agent to suggest it)...would be more likely to be one year (hence running from 10 May to 9 May)

                Comment


                  #9
                  point noted, AST prepared by LA, questions post answered in seperate post below.

                  Many thanks.

                  Comment


                    #10
                    That term is exactly what is stated on the AST agreement. My wife and I moved to France 2 years ago and left the property in the hands of a "reputable" LA, relying on them to get it right.

                    Now we want to sell, the AST has expired and the tenants have announced that they want a council house. I understand that they won't be considered for this until they are evicted and homeless which is what they seem to be aiming for.

                    Comment


                      #11
                      Originally posted by starg8 View Post
                      Now we want to sell, the AST has expired and the tenants have announced that they want a council house. I understand that they won't be considered for this until they are evicted and homeless which is what they seem to be aiming for.
                      The AST hasn't expired, it's become a periodic tenancy, with the same terms, other than the notice periods - which are statutory.
                      You need to reissue the s21.

                      While what you think your tenants are aiming for is a common understanding of the situation (shared even by many housing departments) it isn't correct.
                      Housing departments tend to (against the instructions given to them) wait until a court has decided that a s21 notice is valid and actually being pursued (which makes a lot of sense, as we've seen, many of them aren't) before doing anything.
                      That test costs the tenant hundreds of pounds in court fees, but that doesn't seem to be a consideration.
                      When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                      Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                      Comment


                        #12
                        We know little or nothing about the housing act 1988 and have to place reliance upon the experts (LA) who act on our behalf to get it right. The LA and their legal team insist that their S21 is valid and correct, however our solicitor is of the same opinion as yourself that the first S21 is invalid and we need to issue another S21. He also advises that we are entitled to continue to receive rent each month as long as it is at the same level as previously paid by tenants and until a possession order is granted.

                        It is looking as if we are going to have to follow his and your advice and now wait another two months while a replacement S21 runs its course. We were initially reluctant to go down this route because inevitably it means we will lose our current buyer for the property, a fair amount of the legal work on the conveyance had already been done on both sides before the tenants made their intentions known to the LA.
                        Any way what's the worst that can happen a sudden down turn in the property sales market.

                        Many thanks for your input in this sorry mess.

                        Comment


                          #13
                          It's interesting that the LA are continuing to assert the notice is valid.
                          Are they sufficiently confident to underwrite the legal fee if you go to court and it turns out not to be valid?
                          When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                          Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                          Comment


                            #14
                            Assuming a letting agent is an "expert" in housing law may lead to disappointment and/or worse. No training, no qualifications, no criminal records checks required to be one. In my experience they can have little or no genuine knowledge. But there are good agents: I have one!
                            I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

                            Comment


                              #15
                              Originally posted by jpkeates View Post
                              It's interesting that the LA are continuing to assert the notice is valid.
                              Are they sufficiently confident to underwrite the legal fee if you go to court and it turns out not to be valid?
                              A very interesting point, which will be put to the LA by email at opening of business hours tommorow.

                              Comment

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