Section 21 notice advise

[T3RBO]

I have been renting my property for over two years and only had a short hold agreement for the first year so it then went to rolling (periodic).

 

I have made no breaches to my initial agreement but was verbally told on the phone that the landlord wants to move back in, which is basically giving me two months to vacate the property.

 

I have e mailed the letting agency to inform them that I am seriously ill at them moment and under the hospital, plus all my savings have gone due to my wage being cut from being off work, so due to medical and financial detriment could they extend the notice for a few months allowing me time to get over the worse of this illness and save up some money to move.

 

This was ignored and no idea where I stand, so now forced to flat hunt.

 

If I manage to find somewhere (rather get this over and done with swiftly if it must happen) do I have to give them any notice if I find another place before the two months is up?

 

Any help/advise much appreciated

Edited July 10, 2010 by T3RBO

[Steve__M]

You would have to give your own (1 rental month's) notice if you wanted to move earlier. You could try negotiating a bit of flexibility in this if the landlord really is keen to move in.

 

Is your deposit protected. If it is not, the S21 notice has no effect.

 

The normal post is adequate for serving S21 notices.

[T3RBO]

Thanks for info... deposit is with DPS

[lawdoctor]

It is very likely that the s21 notice is not valid.

 

READ THIS;

How is the notice to be ‘given’? There is an urban myth that notices in connection with tenancies may always be served by putting them through the letter-box of the property. That is correct if there is a clause to that effect in the agreement, but not otherwise – Wandsworth LBC v Atwell (1995) The Times, 22 April. In a judgment which has not received the attention it deserves, Lord Justice Glidewell observed that section 196(5) of the Law of Property Act 1925 (which allows service by delivery to the property) applied to notices ‘required to be served by any instrument’, but the tenancy agreement did not ‘require’ the service of the notice, and the Protection from Eviction Act 1977, which did require it, was not an ‘instrument’.

An even more optimistic urban myth holds that posting the notice is good service. Again, this requires a clause to that effect in the agreement; and if the clause stipulates service by recorded delivery, do bear in mind that the use of ordinary first-class post will be ineffective.

District Judge Neil Hickman sits at Milton Keynes County Court and is joint general editor of Jordans’ Civil Court Service

 

LAWDOCTOR.

[Steve__M]

Interesting comment about the "posting" of notices.

 

The fact is, though, that you have admitted that you have successfully been "given" the notice, which is what is required by the Housing Act 1988. Therefore you might have to lie to have a chance of avoiding it.

 

Might be useful if you absolutely need to stay in the property, but I wouldn't personally bank on it.

[lawdoctor]

It matters not as to if the notice is admitted to having been served or not. The legal fact is that it would have been served in breach of a contractual term and as such would be legally ineffective.

 

It is highly likely the notice in this case would be fatally flawed for other reasons.

 

By way of case in point, when was the deemed date (which is very important) of service ?

 

I submit it could not be when the notice was served in breach contract.

 

After all if as says Judge Hicks you can not post a notice by hand in the letter box or presumably by definition even by pinning it to the tenants door, then why should it matter whether or not you admit to having received the defective notice at all!!

 

LAWDOCTOR.

[Steve__M]

Possibly because in the case he refers to, the tenant claimed he had not received the notice?

 

The case he describes hangs on the fact that the notice was not among those notices for which the 1925 law said that hand-delivery was sufficient. Therefore it was legitimate for the tenant to claim that since the notice was not served by a *sufficient* means, he was entitled to point out that he had not received it.

 

In this case ignorance of the notice *is* an excuse if the notice had not been served according to the law and contract *and* if the tenant had not received the notice.

 

But that does not mean that the tenant can lawfully ignore a notice he *has* received, because the 1988 law only requires that the landlord has to give it to the tenant.

 

The date of service is the date he received it. But on balance of probabilities it may be related to the date on the notice.

 

T3RBO: Please excuse us while we discuss these pin-dancing angels

Edited July 2, 2010 by Steve__M

[lawdoctor]

The case to which you refer (Wandsworth LBC -V- Attwell) required no notice and is not relevant to a shorthold private tenancy agreement where the terms are agreed by signed contract.

 

I reproduce Judge Hickman's full article as taken from the The Law Gazette.

 

Accelerated – or not

 

 

Thursday 18 January 2007

 

Getting the shorthold provisions wrong can be embarrassing and costly, warns Neil Hickman

If your landlord client has let his property on a shorthold tenancy, recovering possession should be straightforward. Yet it is surprising how often landlords and their advisers get it wrong, resulting in wasted fees and months of delay.

You can use the accelerated procedure, under parts 55.11 to 55.19 of the Civil Procedure Rules (CPR) and part II of the part 55 practice direction, where you have a shorthold tenancy granted in writing and you are seeking possession relying solely on the provisions of section 21 of the Housing Act 1988. If the tenant is in arrears with the rent, this may be worth mentioning in paragraph 8 of form N5B, as the court may take it into account in deciding whether to allow the tenant longer than 14 days to give up possession, but you cannot seek possession on the ground of rent arrears, or seek judgment for rent arrears, using the accelerated procedure.

Consider which part of section 21 is relevant. If you are dealing with a fixed-term tenancy which has not come to an end, section 21(1) applies. You simply need to give the tenant ‘not less than two months’ notice in writing’, stating that possession is required. No particular form of notice is required. The notice can be given before, or on, the day on which the fixed term comes to an end (section 21(2)).

Quite often, a section 21(1) notice is given to the tenant immediately after the tenancy agreement is signed. There is nothing wrong with doing that – but beware of giving the notice before the tenancy agreement is signed. In Turpitt v Elizabeth (unreported) August 1998, Judge Tibber in Edmonton County Court held that a notice given in those circumstances was bad because there was no relationship of landlord and tenant when it was served.

Commonly, your tenancy will be a periodic tenancy, either granted as such or a statutory periodic tenancy arising on the ending of a fixed-term tenancy. In this case, you are concerned with section 21(4), which requires that the landlord gives the tenant notice in writing, stating that ‘after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession… is required by virtue of this section’.

It is a remarkable feat of drafting to cram so many traps into so few innocuous-seeming words. ‘Specified in the notice’ means only that the date can be worked out by reading the notice. ‘At the end of your period of tenancy which will end next after the expiration of two months from the service upon you of this notice’ is a valid form of words (Lower Street Properties v Jones [1996] 28 HLR 877). However, beware of writing ‘on [date] or at the end of your period of tenancy...’ – this is ambiguous and cannot be rescued by adding ‘whichever is the later’, because that may mean that the notice expires on a date which will

make it invalid.

The Court of Appeal in McDonald v Fernandez [2003] EWCA Civ 1219 held that a notice which required possession on 4 January, rather than after the end of the period of the tenancy on 3 January, was defective. Whether the disappointed landlord in that case, who found that his notice was wholly bad because it gave the tenant a day too much notice, will have agreed with Lady Justice Hale’s cheery assessment that ‘this is not a case where the consequences of failure to comply are particularly serious for landlords’, may be debated.

So what is the last day of a period of the tenancy? In the simple case of a periodic tenancy with the rent payable on a Monday, the notice needs to expire on a Sunday. A trap into which it is easy to fall involves the statutory tenancy arising at the end of a fixed-term tenancy where the tenancy began on, say, the 15th of the month but the rent is payable on the 1st. The notice in such a case must expire on the last day of the month, not the 14th.

Do remember, by the way, that for a weekly or monthly tenancy, the notice needs to be at least two months, not eight weeks.

An interesting point arose in Church Commissioners for England v Meya [2006] EWCA Civ 821, where the fixed-term tenancy was for a year less a day, with an annual rent expressed to be payable by quarterly instalments. Was the periodic tenancy which followed it a quarterly tenancy (requiring a quarter’s notice by reason of section 21(4)(b)) or a yearly tenancy (requiring half a year’s notice)? The Court of Appeal said that one should consider the last payment of rent the tenant was obliged to make, and then ascertain the period covered by it. The last payment was payable in advance for the September quarter. So the period was a quarter and the periodic tenancy was quarterly.

How is the notice to be ‘given’? There is an urban myth that notices in connection with tenancies may always be served by putting them through the letter-box of the property. That is correct if there is a clause to that effect in the agreement, but not otherwise – Wandsworth LBC v Atwell (1995) The Times, 22 April. In a judgment which has not received the attention it deserves, Lord Justice Glidewell observed that section 196(5) of the Law of Property Act 1925 (which allows service by delivery to the property) applied to notices ‘required to be served by any instrument’, but the tenancy agreement did not ‘require’ the service of the notice, and the Protection from Eviction Act 1977, which did require it, was not an ‘instrument’.

An even more optimistic urban myth holds that posting the notice is good service. Again, this requires a clause to that effect in the agreement; and if the clause stipulates service by recorded delivery, do bear in mind that the use of ordinary first-class post will be ineffective.

District Judge Neil Hickman sits at Milton Keynes County Court and is joint general editor of Jordans’ Civil Court Service.

 

LAWDOCTOR.

[T3RBO]

Just to clarify.... I contacted the agency after the initial 'you have two months to leave' phone call.

 

Liking the 'ignorance is bliss' train of thought

Edited July 10, 2010 by T3RBO

[lawdoctor]

Sometime last year when I visited this forum using a different pseudonym I was in the round, as I still am today, in praise of the good work and value that the forum had for many. However, I was very aware that there was a small element of member 'experts' who were portraying their limited legal knowledge way beyond the true level of its value as I viewed it.

 

I realised then that if I left the spell checker off and deliberately paid no regard to grammer or layout etc the forums groupie experts would engage me with their legal knowledge of the law which was often portrayed as fact. When I replied to posts using my normal acquired style and addressed the law with which I have had a love affair for over 30 years both professionally and these days as a hobby I found that these same experts were reluctant to engage in debate.

 

This I personally found to be rather sad as when I was cutting my legal teeth if a day went by when my then mentor did not turn my face red I felt that it was a day when I had advanced very little.

 

You state that forum members are sometimes just retelling other peoples reported experiences, this of course is fine and one of the many things that makes it such a great site. However, as I have witnessed some of this 'retelling' is often regurgitated and portrayed as legal fact. This of course could be dangerous to the very many who just view this site to perhaps gain some knowledge to assist in their own circumstances. Although the site team do a good job they cannot monitor some of the downright misleading legal statements portrayed as fact and not opinion.

 

For my part I am merely passing through and would be unlikely to visit again for some time.

 

So when I was choosing a new name for this current fleeting visit I could not resist the name "Lawdoctor" from where I was sitting some of the legal statements being bandied about as legal fact to me appeared to be legally unwell and in need of some legal medicine from the visiting locum - "Lawdoctor".

 

I may not be a legal surgeon but I hope that I have, in my forthright approach, lent something to this forum, if I have then I am glad - if I have not then the person who says so can expect a cyber writ from me as I consider cyber liable to be actionable!!

 

LAWDOCTOR.

Edited July 5, 2010 by lawdoctor

[lawdoctor]

Possibly because in the case he refers to, the tenant claimed he had not received the notice?

 

T3RBO: Please excuse us while we discuss these pin-dancing angels

 

I thought we were going to discuss "these pin dancing angels"?

 

Would you not care to give your opinion as to why judge Hickman

is wrong. Your views and opiniopn's should come with a legal health WARNING.

 

It ia a morally bankrupt man who cannot admit when he is wrong

 

Lawdoctor.

Edited July 5, 2010 by lawdoctor

[Steve__M]

I didn't say the article was wrong, I said that in the Atwell case the tenant claimed not to have received the notice and in the current case the tenant admits to receiving the notice.

 

I expect a legal expert would understand the difference between something being wrong and something being irrelevant, but since there are no legal experts here...

 

As it happens, the Atwell case does not involve either an AST or a Section 21 notice. I'm surprised you didn't point that out.

[lawdoctor]

TWIST AND TURN SPRINGS TO MIND!!

 

Lawdoctor.

[Steve__M]

Yes. I twisted

 

"Possibly because in the case he refers to, the tenant claimed he had not received the notice?"

 

into

 

"in the Atwell case the tenant claimed not to have received the notice and in the current case the tenant admits to receiving the notice."

 

The point about the Section 21 notice is that it shows up the fact that you have claimed that:

 

It is very likely that the s21 notice is not valid.

 

(my bold)

 

based on an article on the tinternet about a case that you appear not to have read. If you had read and understood the Atwell case, you could have told me whether or not it was relevant that it was not about a Section 21 notice.

 

Under discussion is whether someone is going to get evicted or not. So your certainty that is apparently based on internet lore is totally at counter to your recent patronising warning notices.

[lawdoctor]

Under discussion was is the sec. 21 notice valid it is not you were clearly wrong go on be a man admit it.

 

This is what I said on a post in march of this year.

 

"I was wrong you did not post on that thread,silly me.

 

I must need reprograming"!!!

 

See a true man says when he is wrong

 

Lawdoctor

[Steve__M]

You are a bit like that computer in Star Trek whose grammar goes all wrong when it gets confused by difficult logical problems.

 

The solution to the conundrum you not so subtly pose is that you are not a true man.

[lawdoctor]

How very sad.

 

LAWDOCTOR.

[xoAmyox]

Now now children. This site is meant to be constructive, either agree to disagree or work toward making your differences in opinion helpful to guide the OP.

 

Personally I believe that whether the case involves notices, AST's or whatever, the Judges comments should be taken lightly as they are again only his opinion, and although they may set president, aren't the law as such and may change from court to court.

[lawdoctor]

Hi xoAmyox

 

Do you know who Judge Hickman is? I quote your statement above "...again only his opinion...", Judge Hickman is the joint editor of Jordan's Civil Court Service (the professionals version of the 'white book' ie. the CPR [Civil Procedure Rules]) as such I do not believe that these 'opinions' should be "taken lightly" as you state.

 

They are clearly a definitive view as to what the law is and can be cited in any Court including the highest Court in the land. Rarely if ever should that legal opinion be challenged, least of all by an on-line forum groupie whose claim to fame would appear to be to have a seven day a week mission to direct the less fortunate and legally ill-equipped in 'his view' of what the law is!!

 

I quote for your reference who are the joint authors of this highly recognised legal 'bible';

 

The Right Hon Lord Saville of Newdigate, District Judge Neil Hickman, The Right Hon Lord Justice Laws

 

Lawdoctor.

[xoAmyox]

However eminent he may be, does not make what he says gospel. Now please stop interfering with people simply looking for guidance and assistance with their problems. If you are looking for a debate of legality, legislation and precedent, then please turn elsewhere. The PainSmith Forums may be more appropriate, but at this moment in time all you are is a stubborn person, causing nuisance for those here requiring a little help. You've had these same arguments in the past, and clearly i'm not the only one here that believes you are more of a disruption than anything else.

[labrat]

as above