Eviction Notice - S21

[bottomburp]

Edit

Edited March 30, 2009 by bottomburp

[TheChancellor]

What does the s.21 Notice say?

 

When was it received?

Edited October 8, 2008 by TheChancellor
adding to

[bottomburp]

Edit

Edited March 30, 2009 by bottomburp
typo

[TheChancellor]

I would say the Notice was invalid : Mr Shed is the man to confirm.

 

If your rental period is the 6th - 5th then they cannot demand possession of the house on the 5th.

 

It has to be a day after the 5th because you are paid up until the 5th (assuming the rent is paid obviously).

 

It's like saying you are going to get fined for your tax disc being up on the 31st.You can't be fined until the following day.

 

Having said that it depends what you're plan of action is?

 

If the above is confirmed then needless to say DONT TELL THEM about the mistake or they will simply re-issue Notice.

 

If you were feeling brave you could tell them in December or even sit tight until it went to court.Depends if you want to stay there or not?

[bottomburp]

Edit

Edited March 30, 2009 by bottomburp

[TheChancellor]

We thought it would be best to say nothing and want to stay put.

 

The one-year anniversary isn't until January so my understanding is that they're plain wrong to try to evict in December - am I correct?

 

 

I'm not sure - cant get my head round the wording yet as it doesn't state which anniversary:

 

Either LL or tenant can issue 3-months notice “with notice being served on or before the anniversary of the tenancy commencement after the first 6-month period”;

[MrShed]

There are much more intricate legalities than meet the eye here - mainly due to the length of the tenancy, and the break clause.

 

What is the monthly rent?

 

Are you able to scan and post the TA in its entirety?

[MrShed]

Strictly speaking, there is nothing wrong with the notice as far as I can see.

 

“with notice being served on or before the anniversary of the tenancy commencement after the first 6-month period"

 

This notice has, indeed, been served before the anniversary of the tenancy.

[TheChancellor]

Strictly speaking, there is nothing wrong with the notice as far as I can see.

 

“with notice being served on or before the anniversary of the tenancy commencement after the first 6-month period"

 

This notice has, indeed, been served before the anniversary of the tenancy.

 

What's your opinion on the date given on the Possession Order Mr S ?

[TheChancellor]

The rent arrears are a red herring as they will have no bearing on a

s.21 route.(It is not an Eviction Notice).

 

The only defence you will have at court is if the paperwork is incorrect.

[MrShed]

The dates seem fine - but it sounds like it might not have the prescribed information. Might be worth scanning the notice in as well.

 

However, it does raise the question - can a break clause be invoked by a S21 notice? I'm not so sure it can.

[TheChancellor]

The dates seem fine - but it sounds like it might not have the prescribed information. Might be worth scanning the notice in as well.

 

However, it does raise the question - can a break clause be invoked by a S21 notice? I'm not so sure it can.

 

Good point Mr S.

 

As a s.21 Notice should not be dated to expire on or before the last date of the tenancy then maybe that is the case?

 

BB what is written after "section 21" does it say s.21(1)(b) or s.21(4)(a)?

 

It would help if we could see it (after covering personal details but please leave dates).

[MrShed]

I must admit, I have never dealt with an "eviction" following a break clause. A break clause is not laid down in statute/law anywhere - it is a contractual agreement.

 

Therefore, I suspect it will have to work in so much that notice is issued as per the CONTRACT to terminate using break clause, and if the tenant does not move out, THEN the landlord will have to issue FURTHER notice via the Section 8 eviction process, under the breach of tenancy grounds.

[Steve__M]

It looks to me that the break clause in the contract allows for 3 months notice to be issued at any time after the first 6 months - it doesn't have to be related to the rental period.

 

If the tenant does not move out, presumably a Section 8 could be issued on the grounds that the obligation of the tenancy has been broken?

 

So the question is as Mr Shed posed it: while the landlord is entitled to give 3 months notice, does the inappropriate reference to Section 21 invalidate the notice? Recently we had a case here where the landlord referenced the wrong subsection of Section 21 and lost.

[MrShed]

My thinking exactly Steve

[bottomburp]

Edit

Edited March 30, 2009 by bottomburp

[Steve__M]

The thinking seems to be that if the landlord had not mentioned Section 21, the notice would definitely be valid.

 

Because the landlord has stated that the notice is being given "by virtue of Section 21", it is possible that it has been invalidated. But I (we) don't know.

[TheChancellor]

NOTES which seem to be instructions on how to complete the form

1. Notice must be served on a tenant of a dwelling house let under an AST before proceedings for possession can be brought under Section 21 of the Housing Act 1988

2. Delete the words in square brackets where the notice relates to a fixed term tenancy and is to be given on or before the day on which tenancy ends: retain the words where notice is given in respect of and during the subsistence of a periodic tenancy

3. The expiry date of the notice cannot be earlier than

a. where notice is given on or before the ending of a fixed term tenancy the date when the fixed term ends or

b. where notice is given during the subsistence of a periodic tenancy, the date which is the last day of a period of the tenancy and is a date upon which (apart from the security provided by Section 5(1) of the Act) the tenancy could be brought to an end by a notice to quit even onthe same date as this notice and

c. in either case not earlier than two months after the date when the notice is given

 

 

Concensus of opinion is that it's a pity the LA didn't read the above instructions as Section 21 & their last day of Notice don't concurr.

 

Have the "words in square brackets" been deleted?

[MrShed]

How was notice served?

[TheChancellor]

How was notice served?

 

"It was hand-delivered on 5th September":wink:

[MrShed]

My personal interpretation of this situation is that the S21 notice WILL stand as invoking the break clause, but a S8 notice will be needed to follow that up.

 

I dont think there is any issue with dates.

[bottomburp]

....

Edited March 30, 2009 by bottomburp

[MrShed]

Because the tenancy does NOT state that the notice has to expire after the anniversary of the tenancy.

 

“with notice being served on or before the anniversary of the tenancy commencement after the first 6-month period”;

 

There probably should have been a "not" between notice and being - but there isnt.

[Steve__M]

Because the tenancy does NOT state that the notice has to expire after the anniversary of the tenancy.

 

“with notice being served on or before the anniversary of the tenancy commencement after the first 6-month period”;

 

There probably should have been a "not" between notice and being - but there isnt.

 

Seems to me that this contract is based on a 1-year contract with a 6 month break clause. They've changed the date range of the contract, but not corrected other details.

 

The wording above would make more sense as a definition of a six month break clause in a 1 year contract, since after 1 year the tenancy would have reverted to periodic, and statutary rules apply.

 

In this contract, the wording has the effect that the break clause only exists between month 6 and 12. After 12 months, there would be no break clause available.

 

So, bb (sorry, can't bring myself to type your full username), I'm in agreement with Mr Shed that the landlord was entitled to issue notice that required you to move out before the first 12 months.

[TheChancellor]

 

So, bb (sorry, can't bring myself to type your full username), I'm in agreement with Mr Shed that the landlord was entitled to issue notice that required you to move out before the first 12 months.

 

..... but he's used the wrong vehicle to do it in the form of a Section 21 route?

 

And a vague one at that if they have not specifically stated s.21(1)(b) is it still valid?