Section 21(1)(b) is my notice defective?

[twostudents]

Dear Users,

 

I have recently been served a Section 21(1)(b) Notice requiring possession as shown below:

 

"ADDRESS:

 

******

******

******

 

04 January 2012

 

Dear ******* & ********

 

Re: ****************************

 

We have been instructed by the landlord of the above property to serve notice on you to vacate the property on or before 8th March 2012.

 

Should you wish to discuss this matter or the reasons why this has been requested for us to serve you should contact your landlord.

 

Can you please confirm that you have received this by signing and returning the copy letter enclosed.

 

We will deliver this by hand to ensure receipt at the property.

 

yours sincerely

 

*********************

 

Receive notification of notice ___________________________

 

Tenants to sign above. "

 

After some research I am noting some points which might be worth knowing.

 

- We are students at University

 

- I do not know what they are saying about delivering by hand, but this was never given to me in person, in fact we found it on the floor when we arrived after holidays.

 

- We have an Assured Shorthold tenancy agreement: Fixed Term for 12 months from 10th October 2011 to 10th October 2012.

 

-Since October, we have continue to ask the letting agents for a copy of the tenancy agreement, to which up to this date they have failed to provide several times, in fact last time we have been told they cannot find and they don't have and will send it to us when it is located but they didn't.

 

Is there anything wrong about the way this notice has been served? I have read in some cases these notices are defective, but we are unsure.

 

Thank you, I look forward to your responses

 

TwoStudents

[gordies]

Dear Users,

 

I have recently been served a Section 21(1)(b) Notice requiring possession as shown below:

 

"ADDRESS:

 

******

******

******

 

04 January 2012

 

Dear ******* & ********

 

Re: ****************************

 

We have been instructed by the landlord of the above property to serve notice on you to vacate the property on or before 8th March 2012.

 

Should you wish to discuss this matter or the reasons why this has been requested for us to serve you should contact your landlord.

 

Can you please confirm that you have received this by signing and returning the copy letter enclosed.

 

We will deliver this by hand to ensure receipt at the property.

 

yours sincerely

 

*********************

 

Receive notification of notice ___________________________

 

Tenants to sign above. "

 

After some research I am noting some points which might be worth knowing.

 

- We are students at University

 

- I do not know what they are saying about delivering by hand, but this was never given to me in person, in fact we found it on the floor when we arrived after holidays.

 

- We have an Assured Shorthold tenancy agreement: Fixed Term for 12 months from 10th October 2011 to 10th October 2012.

 

-Since October, we have continue to ask the letting agents for a copy of the tenancy agreement, to which up to this date they have failed to provide several times, in fact last time we have been told they cannot find and they don't have and will send it to us when it is located but they didn't.

 

Is there anything wrong about the way this notice has been served? I have read in some cases these notices are defective, but we are unsure.

 

Thank you, I look forward to your responses

 

TwoStudents

 

 

Yes, it is very wrong BUT, you do not have a copy of the Tenancy Agreement so you may have a problem. Does the letter clearly state a Section 21 at the top? A Section 21 is INVALID and cannot be served within the first 6 months of any Tenancy anyway so there is the first error.

 

IF you have an agreement then to break it early you must have broken at least one of the conditions and, even then, it normally needs a Court Order to have you evicted.

 

Without your agreement you really have a difficult situation. Have you got a receipt for your deposit and is it registered in a Deposit Protection scheme?

 

It is obvious that 'they' are trying it on here. Did you all sign the tenancy? Was this place part of any University supply scheme? I would have a word with your University as they will have people on Campus that can help you but, so far, they have made the mistake as the Section 21 is not valid.

 

Good luck and pop back with any further questions.

 

Gordies

[citizenB]

We will deliver this by hand to ensure receipt at the property.

 

 

If you are confirming that this has been put through your letter box, without having gone through the Royal Mail or other postal system.. then they have done as they say and "Delivered by Hand"

 

Their intention was to ensure it arrived at the property.

 

Had they said something that indicated that a "personal service" had been made then I think you might have a point.

 

However, having said that.. are these notices required to be served on you personally.. if so, then just slipping it into the letterbox probably doesnt count.

 

What is concerning is that you have not been given a copy of the tenancy agreement. I will try and find someone with more knowledge of this situation for you.

[twostudents]

Hi Gordies, Thank you for your reply.

 

With regards to the receipt of the deposit, this is our second year at this flat. In the first year we received a certificate of tenancy registration which states clearly the dates of beginning on 11-10-2010 and ending after 10-10-2011, this is register with the DS (Dispute Service). When we asked for a certificate for the second year, we were told the first certificate still applies and the deposit continues to be protected.

 

Regarding the tenancy agreement, we have both signed it. This is not part of a university supply scheme, we are renting from a private landlord and through the agency.

 

@CitizenB

 

Thank you that would be useful

[gordies]

Ahh, that is good to know because, in that case, IF they cannot provide a copy of your 'new' tenancy agreement then legally the old one is still in place on an ongoing basis until such times as correct notice is served OR a new tenancy is provided.

 

Have you done anything to break the tenancy or is your rent always paid on time and do you have a receipt for the payments?

 

You need to ask them why they have served notice - ASK the agent, not the Landlord as that is what the Agent is there for.

 

IF they claim you have broken any of the tenancy agreements then they cannot simply go straight to a Section 21, they must serve a Section 8 first. A section 21 is normally only used to gain possession at the END of an assured tenancy.

 

There is obviously a reason the landlord wants his place back. Do you have anything at all in writing that states until October 2012? Even confirmation that your deposit is protected until October 2012 will help in the absence of a tenancy agreement.

Edited January 6, 2012 by gordies

[twostudents]

Additionally, the letter that I posted here does not state or mention anything about a section 21(1)(b) Notice Require Possession , however the letter came with a separate document (or paper if you like) titled: Notice Requiring Possession clearly stating in the right upper corner Section 21(1)(b).

[gordies]

Ok, it is an invalid notice anyway.

[twostudents]

We have always paid the rent without fail, however we did let a friend stay and he was caught by the brother of the landlord who visited the flat. We have denied for the visit to be made as we were not present and he did not give the 48 hour notice. The friend is now gone. We tried to talk to landlord about this matter but he has ceased contact with us for about 2 weeks and still does not make any effort to contact us. We believe this has caused him to serve the notice on us, but we find this unreasonable as it was not illegal and the flat is in perfect condition.

[gordies]

If you can let us have the answer to the following:-

 

Have you done anything to breach the tenancy? Have you ever been served a Section 8? Do you pay your rent on time and do you have receipts? Do you have written confirmation that your deposit is protected until October 2012? How many of you signed the new tenancy?

 

 

Ok, so letting a friend stay - how long did he stay? Did you sublet to him or did you just let him stay over a few nights? What does the tenancy say about things like that?

[twostudents]

We have not been served Section 8 at all. We pay rent on time and we pay through online banking, so everything is recorded. We do not have any written confirmation that our deposit is protected until October 2012. We are two of us in two bedroom flat using one room only. We have let him stay for couple of weeks and we agreed that it would be helpful if he contributed to the rent, but we didnt gained anything from it. In the old tenancy agreement it states that landlord should give consent first and that it can not be unreasonably withheld. The problem was that the landlord did not know about this as this all happened quickly and our friend needed place to stay. Also landlord always takes really long time to respond to anything, we have never seen him or spoke to him.

[gordies]

Right guys,

 

It is now smelling like the Landlord is seeking possession under a rolling contract claim in the absence of a new tenancy Now, as tenants you have a right to a copy of your 'new' agreement within 28 days of demanding such. Do you have it in writing anywhere that the Agency cannot find your new tenancy agreement?

 

Personally, I would write to the Agency demanding that they supply a copy of the new tenancy agreement that you all signed on xx October 2011 and remind them that they have 28 days in which to comply with this demand.

 

Without a copy of your new tenancy you are going to have a fight I'm afraid. However, the Section 21 notice is still defective and invalid so, legally, you have not been served notice.

 

Gordies

 

OHH, hold on, You were served a Section 21(b) - This is the form for an assured tenancy, not a periodic one so by sending you a 21(b) they are accepting an assured tenancy is in place.

 

I am in the process of writing a sample letter for you to send to the AGENT.

 

back in a bit, Gordies

Edited January 6, 2012 by gordies

[twostudents]

Thank you Gordies, we are preparing this demand now and we will be talking with the university. Please let us know if there is anything else we might have missed out on. We will keep close check on this thread at all times. We will reply once we have found out more information. Thank you again its given us a great start to the day!!

 

TwoStudents

[twostudents]

OHH, hold on, You were served a Section 21(b) - This is the form for an assured tenancy, not a periodic one so by sending you a 21(b) they are accepting an assured tenancy is in place.

 

I am in the process of writing a sample letter for you to send to the AGENT.

 

back in a bit, Gordies

 

thats right, Thanks!

[Steve__M]

- We have an Assured Shorthold tenancy agreement: Fixed Term for 12 months from 10th October 2011 to 10th October 2012.

 

So are you saying you signed a new contract at the end of your first year? But you were not given a copy?

 

Let's look at it from the position where they deny there is a contract or they claim the terms are different:

 

Evidence that you signed a contract would be good. The fact that they have used a Section 21(1)b is good evidence as if you had not signed a new contract, Section 21(4) would be the relevant notice.

 

ASTs are a minimum of 5 months, so if the previous contract ran out in October, the new contract would not reach 6 months till the beginning of April.

 

In essence you could completely ignore this notice and simply fail to move out in March. They would need to get a court order to evict you at which point they would have to produce the contract that you signed, or claim that you didn't sign a contract (at which point you ask why they used Section 21(1)b).

 

Also as a backup plan, what date of the month is your rent due according to the contract? A Section 21(4) notice would need to end at the end of a rental period - you say your contract is from 10th of month, but the notice is for 8th of month.

[gordies]

Dear Sirs,

 

re: Short Assured Tenancy

 

We require you to provide to us, within the statutory 28 days, a copy of our new tenancy agreement signed on XX October 2011.

 

We are aware that the new agreement is for a period of 12 months and is an assured tenancy.

 

We advise you that the Section 21(b) recently delivered by hand is invalid as an assured tenancy, like we have, is for a fixed period and cannot be brought to an end early without a Court Order.

 

We have maintained our rent payments on time and have never been served with a Section 8 notice at any time regarding any failings by us in respect of our tenancy agreement. Therefore a Section 21(b) will only be valid if served in August 2012 a minimum of 2 months before our assured tenancy is due to end.

 

We look forward to receipt of a copy of the new tenancy agreement within 28 days.

 

Yours faithfully,

 

tenant 1 & tenant 2

[Steve__M]

Well done gordies, you got in before me with the Section 21(1) bit.

 

I would repeat however, there is an option to simply ignore the notice. If the letting agent magically conjures up a 6 month agreement they could try to get you out in April. If you simply stay on and refuse to move, the delay due to the need to issue a fresh 2-months' notice can help.

 

Certainly worth not replying till after 10th February.

 

Obviously this tactic leads to issues if they want to show potential new tenants around.

 

Another option is to look for a better place and negotiate an easy, flexible, move based on your strong position. If you do that, get things in writing.

[twostudents]

@Gordies

 

Thank you so much for the letter, this will definitely come in handy. We will edit it so it mentions the request of the tenancy agreement document and the new deposit scheme certificate.

 

@Steve_M

 

We have also been thinking that we do not mind delaying this as we now start our University Spring Term.

 

As a result what we will do is simply not reply to the notice or mention that it is incorrect so as to state that it is invalid when the right time comes.

We will also send an edit of Gordie's letter after february 10th, we see the link between the remaining time.

 

In fact at the end of the day, we do not mind moving out after exams in June, we can delay to our advantage. Our biggest concern then would be

securing the safe return of our deposit.

 

Thanks! Gordies and Steve_M, we will keep you guys updated.

[gordies]

Just make sure at the end of your tenancy you get an inspection done when you are present and get a signed copy of the closing inventory and notification of any things they are unhappy with (if any).

 

good luck with exams when the come around !

 

Gordies

[twostudents]

Thanks Gordie, it's been a lot of help. Really thank you very much

[The Carpet Cleaners]

The notice is also invalid as it should be 9th of whatever month as the original AST was signed on the 10th.

 

As Steve M says I would just ignore it, they do not need any reason whatsoever to issue a section 21 notice. If you were to take this section 21 to the Council they would tell you to ignore it as it is not valid due to the dates. If LL then wants to take you to court, he will have to go through the whole process again properly.

 

This will give you at least 3 -4 months before you will have to go to court properly.

[R J Dearden]

A Section 21 is INVALID and cannot be served within the first 6 months of any Tenancy anyway so there is the first error.

 

 

Not strictly correct - a S21 (1)b can be served on the tenant at any time during their tenancy and even within the 1st six months of a fixed term. The expiry date of the Notice is the key. For instance a Section 21 can be served upon the tenants on the 1st day of their tenancy which requires possession six months later. The Notice requires the landlord to give a MINIMUM of two months notice. It is common practice within a good agency to serve this on the commencement date of the tenancy and it is then superseded if an extension to the tenancy is agreed.

 

I do not think it can be stated that the Notice you have been given is invalid without seeing a copy of it.

 

A Section 8 Notice is something completely different and is a notice of intention to take legal action against a tenant through the courts upon anyone or multiple of 17 Grounds.

[R J Dearden]

Dear Sirs,

 

re: Short Assured Tenancy

 

We require you to provide to us, within the statutory 28 days, a copy of our new tenancy agreement signed on XX October 2011.

 

We are aware that the new agreement is for a period of 12 months and is an assured tenancy.

 

We advise you that the Section 21(b) recently delivered by hand is invalid as an assured tenancy, like we have, is for a fixed period and cannot be brought to an end early without a Court Order.

 

We have maintained our rent payments on time and have never been served with a Section 8 notice at any time regarding any failings by us in respect of our tenancy agreement. Therefore a Section 21(b) will only be valid if served in August 2012 a minimum of 2 months before our assured tenancy is due to end.

 

We look forward to receipt of a copy of the new tenancy agreement within 28 days.

 

Yours faithfully,

 

tenant 1 & tenant 2

 

To the OP - unfortunately the part about Section 21 (1)b here is totally incorrect - see my earlier post. Your tenancy can be brought to an end using the correct notice - as to whether you move out is something completely different and then the landlord would need a court order to evict you - this takes a lot of time even if under the Accelerated Possession Procedure.

[twostudents]

@R J Dearden

 

Does this mean that the notice should have been dated "to vacate the property on or before the 9th" ?

 

What do you personally advice?

[R J Dearden]

As we believe your tenancy is an assured short hold tenancy - these can be arranged either verbally or in writing.

 

I would write to the agent a letter signed by all named tenants stating that a 12 month tenancy was agreed from 10th Oct 2011 to 9 Oct 2012 and signed upon whichever date you were at the agency and the Notice you have been provided is therefore invalid as you have a fixed term contract until 9th October 2012 and there are no break clauses allowing either the landlord nor tenant to serve notice during the fixed term (assuming this is the case). Tell them that if they dispute the that this tenancy exists you will seek legal advice and to acknowledge receipt of your letter in writing. Request again a copy of the fixed term tenancy agreement/extension that you signed.

Edited January 6, 2012 by R J Dearden

[twostudents]

This may sound silly, but i suppose break clauses are the bullet points outlined in the agreement?

 

These are the most relevant with regards to notices:

 

In the agreement it says:

 

The agreement may not be terminated early unless the agreement contains a break clause or written permission is obtained from the landlord.

 

Under General Notes

 

It says:

 

Section 196 of the law of property act 1925 provides that a notice shall be sufficiently served.

 

The agreement also states:

 

The parties agree before the landlord can end this tenancy he shall serve any notice(s) on the Tenant in accordance with provisions of the housing acts. Such notice(s) shall be sufficiently served if served at the last known address of the tenant in accordance with section 196 of the law of property act 1925.