Question Time - a bit of a teaser for anyone!

[MrShed]

OK some people here have come from the Landlord Zone forums. Some of the older LLZ members may remember (the legendary!) Paul Fs question times. I thought it might be a bit fun to stretch our knowledge somewhat with a few on here! They really were brainteasers!

 

BTW I am not under any circumstances saying I even know the answers to the questions posed - although some of them I do - they are just for general interest!

 

OK the first one. I am feeling lazy today so I am going to "borrow" a QT that has already been asked elsewhere. No cheating and finding the original now!

 

• The tenant a retired man has been occupying a property in England under an AST since 1994.
  
• The landlord has resided on mainland Europe the entire time.
  
• The first AST was for 12 month fixed term, and when it expired the landlord issued a new monthly periodic tenancy with no fixed term. Since then no new agreement has been drawn up.
  
• The landlord is hoping to repossess the property in mid-February and has sent by e-mail from France a communication saying that he wants to start alterations to the property as soon as the date in February has passed.
  
• The rental period of the tenancy ends on 24th of each month.
  
• No Section 48 Notice has been served at anytime.
  
• The tenancy doesn't have an address for the landlord on it.
  
• The Second tenancy states the landlord will give the tenant "three months" Notice of requiring possession. There is no statement as to how this notice must be served.
  
• There is nothing to tell the tenant how Notices will be served upon him.
  
• The landlord has promised (in writing) to do a particular repair to the ceiling of a lean to in the property for over 5 years yet has failed to do this (it hasn't prevented the tenant having reasonable use of the room).
  
• The landlord's builder has already been instructed to prepare to do work next month.

So what have we here then?

1. What are the implications of no Section 48 Notice having been served?
   
2. Is a letter by e-mail sufficient Notice?
   
3. What are the problems with the dates?
   
4. How might S.196 of the Law of Property Act 1925 apply?
   
5. Does the 3 months Notice clause override the landlord's statutory entitlement to serve only a minimum of 2 months Notice?
   
6. Are there any other implications that are not immediately obvious?

Anyone?

[Joa]

So what have we here then?

1. What are the implications of no Section 48 Notice having been served?
   
2. Is a letter by e-mail sufficient Notice?
   
3. What are the problems with the dates?
   
4. How might S.196 of the Law of Property Act 1925 apply?
   
5. Does the 3 months Notice clause override the landlord's statutory entitlement to serve only a minimum of 2 months Notice?
   
6. Are there any other implications that are not immediately obvious?

 

(1) No section 48= the notice served by the landlord is invalid. I am not sure whether rent continues to be payable.....

(2)As discussed recently- email notices are not appropriate.

(3)Don't understand except that notice (which is invalid anyway) does not seem to be issued within prescribed time limit

(4)section 196 talks about the service of notices and how it should be served.

(5)Yes

 

That's it for now, as the "implications" bit could go on and on...

 

 

and :? how did I do?

[MrShed]

My apologies: date of notice was in early January

 

Also, it can be safely assumed that the tenancy does NOT state how notice should be served. Only the timescale. With that in mind I'm going to let you have another bash at 3, 4 and 6

 

Question 1 is partly right, same with question 2, question 3 absolutely correct, and question 5.

 

Question 4 is a biggy :)

[MrShed]

With regards question 6, let me rephrase the question as to "what should the tenant do, and/or what would the result of various actions by the tenant be" - and, what should the landlord do to rectify the situation and actually evict the tenant

[MrShed]

Obviously something of a lack of interest so I'm going to just answer:

 

1) The tenant cannot be evicted, and rent is not payable, until the notice is served.

2) No as there is nothing stated in the TA. HOWEVER, if email was stated as a form of notice in the TA, yes it would be.

3) Simply not enough notice.

4) As there is no method of serving notice in the TA, S196 means that the landlord must give notice IN PERSON to the tenant.

5) Absolutely does.

6) There are a few points to note here.

 

First of all, from the LL point of view, to do ANYTHING he will have to first get a contact address in England and Wales. His current(non-E&W) address is insufficient. He must then return from his EU country to serve notice on the tenant in person, having served the S48 notice of course!

 

For the tenant, had he been in arrears, he can now leave and not owe any rent!!!!

[Esio Trot]

One other fly in the ointment is the date of occupation, which in post #1 states was in 1994.

 

Unless the owner has isssued a s20 notice and has evidence of service before the tenancy started, it could well be deemed to be an Assured Tenancy (The s20 notice "warns" the tenant that the proposed tenancy is an Assured Shorthold Tenancy).

 

I know of a chap who bought a property for his mum to live in (it was near his home and she lived far away). His lawyer verified the AST and s20 before completion. As soon as it completed, he issued a s48 "Notice of Service" on the tenant, then issued a s21. Both were legally correct.

 

The tenant did not move out, and the court action failed as the Judge at the hearing asked the tenant if they recalled ever seeing the s20 produced at court. The tenant (of course) said "No". The Judge therefore ruled that in the absence of evidence of service, the presumption can only be that the tenant enjoyed an Assured Tenancy.

 

A prime case of Caveat Emptor