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    • Court hearing today. WON on all counts of claim. The win though is not the interesting bit, but the ‘why’ is really useful. We were allocated 90 minutes but it took two hours by telephone . The defense were represented but I failed to note whether by a solicitor, barrister or other advocate.   As soon as the judge finished the introductions and before he had time to pass the time over to me to explain my case, the defense interrupted and asked the claim be struck out. He then spent the next 40 minutes discussing with the judge that I had failed to properly serve my bundle upon which I intended to rely. The judge asked me to explain and I said I had served the bundle to them and the court 3 days before the deadline, by signed for post with a tracking number to the address named in the summons being the Royal Mail Head Office in London. I said it was a bit rich that they were making this request when they had failed to serve me and the court with their bundle within the deadline and that I had only just received it. They quoted a certain principle of law (which I failed to write down) which explained that service of documents must be made to the address which either party may request service to be made. They claimed that six months earlier when they lodged their defense to my summons, the covering letter had been sent from their Sheffield office and it constituted the address for future service of documents. I of course had no idea of such a requirement and said that a simple letter heading on a piece of correspondence was not the same as a formal sentence in a letter requesting such future service. It gave the judge some concern but he decided to park the issue and allow the hearing to continue.   I was able to explain my case for the £50 compensation for the lost parcel using the evidence from the defense bundle referencing the Overseas Post Scheme. It was all straight forward. I explained the facts and let them speak for themselves. I then moved on to the delayed Special Delivery items. This is where the fun began because I had to argue against their terms and conditions. I used the defense bundle referencing the UK Post Scheme. I quoted from various clauses which explained the rules relating to claims. That ALL delay claims must be made within 3 months, then that Special Delivery was actually 14 days so not 3 months after all, then another clause which confirmed the deadline was 3 months for all delay claims. I quoted further that these were “common terms” and that some services (Special Delivery was one) had additional terms which were called “specific terms”. Another clause stated that where a conflict arises between common and specific terms, then specific terms took priority. So I turned to the Special Delivery section to quote the specific terms as these would have priority. There was only one term that referenced claims. It simply said If we do not succeed in attempting to deliver by this time (being the next day) we will refund your postage. I used this single phrase to take priority over the 3 months  or 14 day deadline mentioned in the common terms. I discussed how the various clauses conflicted with themselves as if the clauses themselves did not know what the deadlines were and how ambiguous and confusing it was.   The time was then past to the defense and he started to argue there was no contract nor liability in tort (a substantial portion of their written defense document and bundle discussed this argument). It made me smile because I was ready for that. The judge though was ahead of the game and (especially because 40 minutes had been wasted at the beginning) he did not want to hear of it. After about one minute, he stopped the defense by saying exactly what I was preparing to say. Simply that I was not suing under contract or tort but under the conditions of the various postal schemes for which they were liable. He asked the defense to answer my claims. The defense then prevaricated trying to argue the clause that distinctly mentioned the 14 day time limit within which to make a claim for delay (which of course it did) ( as an aside, most people might accept that deadline and not bother to pursue a claim). He had nothing to add about the lost parcel.   Time had run out, we had no questioning and the judge said he was summing up. He was quite happy I had served my documents sufficiently well and took the view that the defense had fallen foul of the court order so he was cancelling out the question about valid service. He had no difficulty in accepting the claim that the lost parcel was valid and awarded me the £50 compensation. He then spoke at longer length about the delay claims and the conflict in the clauses. (at this point I had no idea which way this bit would go). Then, he spoke of how a business such as Royal Mail should not be accepting clauses in their contracts which were clearly inconsistant. (that’s when I started to relax), (and then the best takeaway of the hearing), He said that common law provides in the event of a standard contract if there is any ambiguity, the interpretation should be judged against the person drafting the contract. He called it Contra Proferendem. (I had no idea of that concept but had effectively explained it anyway). I was awarded the whole claim plus costs. The defense asked for permission to appeal which was refused.    Remember the phrase “Contra Proferendem” . I shall be looking more into it. I am sure it will come in handy against any institution that have drafted contracts that cannot be individually negotiated. And will certainly be useful for a long while yet against Royal Mail et al.
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Just a simple question really: how is a tenant supposed to know that they have to give notice, even though have been sent an S21? There is no information about this amongst the S21 documents, or accompanying letter from the agent.

 

Have researched the net and find plenty of people who say that the tenant must still give notice (if they leave before the date on S21) but cannot find any information for tenants that says one must do this. I now understand that this appears to be the case, but would be helpful if a tenant, worried about having to leave their home, could be given detailed information about what they should do.

 

Thanks for any advice.

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You don't have to give notice if the LL has already given you notice. You are entitled to stay in the property until the date on the notice (and thereafter actually, until the LL obtains a court order for possession). If you choose to move out sooner, you are still liable for the rent until the date on the notice.

 

Are you looking to move out much sooner than the date on the notice? What date is on your notice? What date would you like to leave?

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"You don't have to give notice if the LL has already given you notice."

 

Incorrect IMO s21 is not NTQ only Notice to seek Court Order for repo 'at some time in the future after expiry date'

LL cannot serve a NTQ but T must if T wishes to leave during SPT after fixed term.

Also your research will show many s21s are defective, with no legal force. Even in a hotel, the resident is required to book out by a certain time if he does not want to pay for extra chargeable nights

Otherwise Here lies Anarchy.

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The s21 is a notice requiring possession, the court action is only IF the tenant doesn't leave (a or b depending on AST or periodic). Ergo, if the LL has served notice indicating that they require possession, notice has been served on the tenant and he/she need not serve further notice of intention to leave - there's no need. The LL has already made it clear he/she wants them to leave. My additional questions are to establish if the tenant wants to leave earlier than the notice the LL has given, if there is more than a clear month before the notice expires, then it might be common courtesy to provide a month's notice - but it is not a requirement.

 

No need for me to do any research regarding invalid s21s, I see them in court very regularly.

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Thank you, Lea HTH

 

There has been some history between me and the LL/agent, which I've enquired about on CAG before, so won't bore everyone with all that again.

 

Upshot was, after living v happily in house for 4+ years, I sent some pics of things that required attention (not major work, just some re-decoration inside and out, which I would've done had it been my house) and offered to do all those things myself in return for no rent increase this year. I thought this reasonable, as house had not been seen to for more than 6 years.

 

Agent's response was to send me S21 requiring possession by August 26th. A lot of people have said that S21 is only a notice requiring possession at some point in the future and LL would have to get a court order to get you out. But how would tenants know this? And anyway I am a pensioner, live with my adult son who has mental health probs, and didn't want to hang on until court order (too much stress for us both) and wanted the move to be as smooth as possible, although really didn't want to leave that house.

 

Was lucky to find right, affordable place quite soon. Wrote to agent on July 6th saying that I'd found somewhere else and that a reference would shortly be requested. I did not, unfortunately give date of vacation of the property. I left the property on August 2nd, (the day before that month's rent was due) and took the keys back to the agent, and got a receipt for these.

 

They told me the house was to be sold, so I just thought the sooner I go the sooner it can be on the market. Now agent tells me I have to pay the rent for August. It surely couldn't be the whole of August, as I was required to leave on 26th.

 

So basically, I left 24 days before the time on the S21, and although no date was given by me for the move, they did know I was going. Since then, although they've had the keys back, they haven't even yet done and inventory and say I won't be due anything back because of the rent I still "owe" for August.

 

Sorry this is so long, but this agent has really messed me about since last December, not answering letters or emails, and i just felt I had to get out asap.

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Did you pay a deposit? If yes, was it protected in one of the government schemes and did you receive the relevant paperwork about such from the landlord?

 

I would suggest that if the LL served a valid s21 notice on you, then he/she should have expected you to leave at some point, which you clearly did. The grey area is whether or not you are responsible for the rent up to 26th August.

 

What date did your tenancy start? When was your rent due? What date was the s21 notice served? You mention that you moved out on 2nd August, the day before the rent was due for that month - in which case the s21 notice may well have been invalidly served. Were you in a periodic tenancy?

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Caducea - this thread appears to relate to T referred to in earlier thread at http://www.consumeractiongroup.co.uk/forum/showthread.php?361587-Deposit-return-time-period-for-notification-of-dispute&p=3943230#post3943230

 

The usual etiquette is one thread per Tenancy, even if supp questions posed, to avoid responses without full background. Mods please merge.

 

Lea - I note your profile and Court experience, but duty advisor for whom? LL & T law can vary greatly from mort. lender repo's from owner-occupiers

 

To be pedantic, s21b (fixed term) Notice, can be validly served at any time during fixed term. once any deposit has been protected in an Approved Scheme and LL has provided the T with 'reqd info'. It doesn't require an expiry date and cannot take effect before end of fixed term. Neither LL or T can seek to vacate T during fixed term unless by mutual consent or s8 Court Order for ASTs. Many precautionary s21b's are served during fixed term, to avoid time delays for expiry IF later reqd. It remains active for duration of T. T has option to vacate T, without Notice, only on last day of fixed term.

s21a (SPT notice) and T SPT NTQ periods are governed by Statute, based on T periods & rent payment frequency. Not all rent due dates coincide with start of T period.

In this case I surmise that T NTQ did not conform to reqd stat Notice period and LL is legit claiming rent until Notice of T NTQ Stat expiry. OP did not specify a moving=out date in her Notice, relying on the date specified in s21. I expect LL is entitled to rent until at least expiry of s21 and poss beyond, as most LLs are advised to obtain repo order in cases of app abandnment, to avoid T allegations of unfair eviction. Costs for such action can be applied to T, who remains resp for rent & property until enforced.

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Mariner, are you trying to teach your granny to suck eggs? :)

 

I think it was Lord Denning who said something along the lines of 'God forbid a lawyer who knows all the law...' - but what lawyers should know how to do is find any relevant applicable law and know how to apply that to any given situation.

 

I have ample actual experience of everything I advise on. If you read my post, I have more than adequately covered the issues you raise, I just used less words.See my final paragraph to the OP.

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I am sorry that I didn't apply the usual etiquette. I am frantic with worry at the thought of losing £810, especially after having to borrow the money to pay the deposit + rent on my new house ~ online etiquette is not foremost in my mind.

 

This was a periodic tenancy, which, as I understand it, means it just rolls from month to month? I moved in to the old house on January 3nd 2008, and my rent was due on the 3rd of each subsequent month. The S21 was dated June 26th 2012 and said something like: the LL requires possession of the property "2 months from the service of this notice upon you".

 

Yes, the deposit is protected and I have the documentation about that.

 

Please understand, I am writing as a lay person, a tenant with no detailed knowledge of the law. I know that one shouldn't steal, or try to fiddle your benefits, and things like that. What I did not know, and cannot find any reference to, other than people saying it is so, is whether a tenant is required by law to give a month's notice if they leave before the date on the S21.

 

Can not the experienced lawyers and others with knowledge of LL/T law, who post on here, in most cases very helpfully, understand that when a tenant is served with an S21, their first thought is "I've got to find somewhere else to live asap". Furthermore, having found the new house quicker than I thought, the rental market is such that LLs will not often wait until the best time for a ME to move ~ they understandably want to rent their properties asap. I could not afford to pay rent on both houses, had already been told I must leave the old one. How is a tenant to know the details of the Housing Act?

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Caducea, stop worrying - and you have no need to apologise.

 

The s21 that was served on you appears to have been invalid, given the information you have provided above. However, it is crucial to ascertain whether or not it included other dates on it.

 

With a periodic tenancy, the notice should have indicated it was a s21(4)(a) - did it say that? The notice should have been given to end on the last day of a period of tenancy i.e. if your rent is due on 3rd, the last day on the notice should have been 2nd. Clearly it was dated 26th June (what date did you receive it?), and said 2 months from that date - which you clearly interpreted as 26th August - the question is, did it give an end date? It ought to have specified one.

 

If it was in fact invalid (still to be ascertained pending you answering the above questions) and you relied on it and acted to your own detriment - I'd suggest that if this ended up in court following a claim from the LL, that the case would be struck out.

 

I am afraid, to answer your final paragraph, that ignorance of the law is no defence. It is not unexpected that people do not know every law, even lawyers do not, but there is an expectation that if you don't know, you'll ask someone who does.

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Yes, it was an S21 (4) (a). I cannot remember the exact day I received it but it would have been June 27th or 28th. No, no end date is given ( I have the S21 in front of me).

 

And yes, I know about ignorance of the law being no defence, have quoted it to myself over the last few weeks! But as I saw it, I was a tenant who'd been given notice. They said the house was to be sold. I thought I was being helpful moving out sooner!

 

Many thanks, Lea HTH for your comments. I am considering applying to the Dispute Service for adjudication.

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Applying to the DS for adjudication is an excellent idea. I suspect you will find your deposit returned to you in full.

 

Please ensure that you keep a tight hold of that s21 notice, as it is definitely invalid, and you accepted it and acted to your own detriment by moving out as quickly as you could. It is not unreasonable that you accepted it as being valid, and thought that you had to leave. The LL probably doesn't have a valid claim - and certainly wouldn't have gained possession on the production of that notice. The LL is in an extremely weak position to try to claim further rent from you on the strength of a notice that is invalid. It is debatable whether you should have specified the date you were going to move out, however you did move out at the end of a tenancy period, during the proposed s21 notice period, so I would suggest that you let the DS adjudicator decide.

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Thanks for that. I have trawled both CAG and lots of LL and T sites for this info, and I must admit I did feel that things were not done correctly. But still getting mildly aggressive emails from agent, refusing even to discuss deposit return and making me feel that I'm entirely in the wrong.

 

No wish to offend any legal Caggers but so often I say to myself: this may be legal, but is it just?

 

Thanks to all. Will update when this comes to an end (whatever it may be!)

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Note; the deposit cannot be used to pay off disputed rent owed!

Lea

If it was in fact invalid (still to be ascertained pending you answering the above questions) and you relied on it and acted to your own detriment - I'd suggest that if this ended up in court following a claim from the LL, that the case would be struck out.

Not sure about that; Court may say that T should have queried it! and AST clearly states T has to give one months notice!
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Thanks, raydetinu, that is exactly what the agent is saying ~ that I won't get deposit back because I didn't give notice. Do you mean I cannot use the deposit as the disputed rent or the agent cannot take the deposit in place of rent?

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It is not up to the agent or LL, thats what the sheme is for, to protect it.

Have you cliamed the deposit off the scheme yet? if not do so now and raise a dispute if LL objects to you getting it back.

You can also sue for it back in court if you prefer, but LL may well counter claim for the rent.

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Note; the deposit cannot be used to pay off disputed rent owed!

 

Who said it could?

 

Lea Not sure about that; Court may say that T should have queried it! and AST clearly states T has to give one months notice!

 

I am sure - seen it happen countless times. The point is the LL served notice, the tenant left on the basis of that notice. LL can't then go to court and say 'they left sooner than I wanted them to' and then go on to claim further rent on the basis of an invalid notice.

 

I doubt very much the LL will proceed to court. OP is going to open a dispute with the DS as discussed in later posts, so she'll probably get her deposit back.

 

Do not be misled into thinking that a deposit held in a scheme cannot be released to set off against rent arrears - it can, but only after a court has given a money judgment on outstanding arrears. This hasn't even got that far.

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A s21(4)(a) (which is what the OP received) is a notice requiring possession.

 

Relevant section from the Act...bold element emphasised by me.

 

"...that the landlord or, in the case of joint landlords, at least one of them has given to the tenant a notice [F4in 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 of the dwelling-house is required by virtue of this section; and..."

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I agree, you dont have to shout, ergo if tenant wishes to leave prior to that he SHOULD give the LL notice ( one month )! or is liable for the rent to the repossession date? which brings the contract to an end.

seems we are in agreement really.

We will just have to wait and see how the agent/LL persue it, if at all as you say.

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It is emphasising, not 'shouting', which was necessary given you had repeated something inaccurate.

 

I don't get where you get the 'should' bit from. 'May', 'perhaps' 'could have but didn't'...

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Thank you, anyway. The thing I feel now is that there DOES seem to be a grey area ~ it's not the clear cut case that the agent is saying it is, and maybe I DO have some chance of getting deposit back. The other thing, which I haven't mentioned here because not relevant to my original question, is that I have no "check-in" inventory of any kind. In my new place it was very tight and very specific, with pictures, which we signed, and then after the move we had a form to point out any faults or mistakes we found after we moved in. I gather from the DS site and other places, that this is of the utmost importance.

 

Have begun completing the form online and will update you with the outcome. Many thanks.

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