Section 21 What are our options

[Tandy32]

Hi we have been renting a house for the last 6 months but got our two months notice to leave two months ago which expires over the weekend, last Friday we went to sign the rental agreement on our new rented house to find the agency turn us down due to me having a CCJ(due to penalty charges-but thats another issue), I was upfront about it and told the agency right from the beginning and had a guarantor who has a perfect credit rating and all seemed fine they took over £300 admin fees and then at the last minute said the reference agency said no a week before but they just hadnt got around to telling us.

 

Anyway this now has put us in a position, I phoned our present rental agency straight away last friday to ask the landlord if they can give us another couple of months and that we would even be prepared to pay an extra £100 per month for the two months, the agency said they would ask and get back to me, I didnt hear anything so I called both Monday and again twice today but the agency just say they have left messages with the landlord but havent had a reply - they mentioned that we legally had to be out by the end of the week.

 

I dont want to cause problems with the agency or the Landlord but we have nowhere to go and with only a few days left we havent a hope on finding somewhere doing the references etc.

 

The agency did mention also today that they have it on there system that the landlord wants to sell the property, I said we would be happy to keep the house clean and tidy and as my partner is here most days put on a pot of coffee and show anyone around and help sell the property, I also pointed out that three new houses have just gone on sale directly opposite and the house next door which is in much better condition has also just gone up for sale in the last week, so would have thought our offer was fairly fair, I am really at my wits end to know what to do, its seems we have had so much bad luck recently, if anyone can tell me what options we have if any.

 

If we could stay for just two more months we would be in a position to put down the entire six month rental payments on our next house.

[Tandy32]

I dont know if it wakes any difference but we have a two and a half year old and a six week old baby as well.

[Tandy32]

Just been reading some other posts and they state that the section 21 notice has to include certain details to be valid, can someone point me in the direct of this information, at first glance the section 21 notice we were sent has spelled my partners first name wrong and has also missed out the hyphun in her surname - her surname is hyphernated and they have put the two parts as one word - could this be a loophole and would an incorrectly formatted section21 notice result in them having to give us another 2 months notice - or am I clutching at straws??

[MrShed]

- You do not "legally" have to do anything until the landlord has a court order. This will take at least 2 weeks after the expiry of the notice, probably more. Realistically you are probably looking at at least a month after the expiry of the notice before they can forcibly evict you. Bear in mind that at this point you will become liable for court costs.

 

- It makes no difference that you have the children I'm afraid.

 

- A S21 is not a "prescribed" form, which means that the format does not matter as long as the info required is contained. Realistically, I would say a misspelling is a very long long shot. However, potentially worth a try. If you want to post the EXACT text of the S21 notice Ill be happy to look it over for any potential flaws.

[Tandy32]

Damn I thought we would get atleast two months before that happened, Here is what the letter says:

 

HOUSING ACT 1998 AND HOUSING ACT 1996 as amended)

(section 21)(1)(b)

ASSURED SHORTHOLD TENANCY

NOTICE REQUIRING POSSESSION

FIXED TERM TENANCY

 

To: ******* ****** and LYNDSEY BADENPOWEL (SHOULD BE LINDSEY BADEN-POWEL)

Of: **********************************************

We on behalf of your landlord(s):

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

of: **********************************************

HEREBY GIVE YOU NOTICE THAT POSSESSION IS REQUIRED

(by virtue of section 21 Housing Act 1988) by your landlord(s) of the premises

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

which you hold as tenant(s) on the 11th day of February 2007 or at the end of the period of your tenancy which will end next after the expiration of (*) two months from the service upon you of this notice

 

Dated the 12th day of December 2006.

****** Letting Agency

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

Signed Agency:

 

INFORMATION FOR TENANT

 

1. On or after the coming to an end of a fixed term Assured Shorthold tenancy, a court must make an order for possession if the Landlord has given a notice in this form.

2. Where there are joint Landlords, at least one of them must give this notice.

3. The length of the notice must be at least two months and the notice may be given before or on the day on which the fixed term comes to an end.

4 If the tenants do not leave the dwelling, the landlord must get an order for possession from the court before the tenants can lawfully be evicted. The landlord cannot apply for such an order before the notice has run out.

5. A tenant who does not know if he has any right to remain in possession after a notice runs out or is otherwise unsure of his rights, can obtain advice from a solicitor. Help with all or part of the cost of legal advice and assistance may be available under the Legal Aid scheme. He should also be able to obtain information from a Citizens' Advice bureau, a Housing Aid Centre or a Rent Officer.

 

(*) Note: At least two months notice must be given requiring possession of any premises let as an Assured Shorthold Tenancy before it takes effect (Housing Act 1988 S.21)

[Tandy32]

The rental started on 11th August 2006, also we didnt get a copy of the renatl agreement, we were told if we wanted a copy it would cost us £25 - is that legal I thought we had to have a copy as it is covered by the consumer credit act??

[MrShed]

What is your monthly payment date?

[MrShed]

And when did you receive the notice? And in what form? If by post, was it first/second class? Recorded? Think I might have spotted a loophole

 

Have you NEVER had any kind of confirmation or copy of the tenancy agreement? If so I might have just spotted a big loophole.

[Tandy32]

The payment date is the 11th, we received the notice in the first class post (it wasnt recorded) and no there was only one copy of the tenancy agreement and the agency have that we have never received a copy from them, just a letter saying if we want a copy it will cost us £25+vat

[MrShed]

When did you receive the notice? What date?

[Tandy32]

I am pretty sure we received it on the 11th December as I remeber thinking we got it four months to the day that we moved in.

[MrShed]

Fairly sure they have screwed up that notice. Give me half an hour to check, and I will confirm.

[Tandy32]

MrShed I would be for ever in your debt if you can come up with something.

[MrShed]

Two things.

 

- I am 90% positive that the notice would have had to be served, and dated, on or before the TENTH of December. As such, the notice is invalid. I am awaiting a colleague confirming this for me.

 

- The fact that you were never given a copy of the AST has potentially much greater legal implications, on your behalf. This is shakier than above, and again I am awaiting someone to confirm for me.

[Tandy32]

Should I make a bank transfer tomorrow so that the normal monthly rental fee is received by them by the due date?

[MrShed]

Probably better as a cheque. I am now 99% certain that the S21 is invalid, due to reason 1 above. Note that you have NO obligation to point out that their notice is invalid, and so i wouldnt!

[Tandy32]

Thanks a million MrShed, so basically they havent given a full two months notice (by1-2day/s) so the s21 notice is invalid, wouldnt it be better for me to point out that the notice is invalid due to the date error so that they wont take me to court, instead just issue us with a new one giving another two months notice??

[MrShed]

No. Because, they can issue another one immediately. Let them pay to go to court and then realise its wrong! It's up to you I guess, if you only want to stay another 2 months maximum then yes tell them.

 

I am still looking into the legality of them not giving you a copy of the AST. But, it has even greater potential legal benefits for you if it means that they have not been deemed to have served you with Section 20 and/or Section 48 notices(both usually taken to be on the AST). The failure to serve you a S48, IF that is the case, would mean that not only cant they evict you til they DO serve one, but you are also not liable to pay rent until they do. The failure to serve a S20, would mean you have an assured tenancy, not an assured shorthold, which gives you even further rights. However, do not take this as read yet, the fact you have signed it may mean it is legally deemed to have been served. Either way, as far as I can see, you have at least another 2 months in the property.

[MrShed]

The person I know has replied to me with regards not being supplied a copy of the AST. I shall quote him:

 

"An agent can't charge for a copy of the tenancy agremeent, nor refuse to give them one. The tenant would be quite within their rights to state that until they do get one for free, then they do not have to be bound by the agreement's conditions as they do not know what they are!

 

This agent shouldn't really be trading let's face it!"

 

I will not name him, but it should be noted that this person is one of THE leading experts in letting and rental law in the UK.

 

What this means is not quite as extreme as I first believed. But, unless you are given a copy of the AST for free, I do not think you could be evicted using the accelerated procedure anyway - they would have to have a hearing, which lengthens any eviction somewhat. You can also safely ignore ANY terms in the contract.

[Tandy32]

Thanks MrShed, the Agency is a very large local chain where I live but have a reputation for this sort of thing, I dont really want to pee anyone off to much as I will probably need a reference from them for the next house we rent and I do only need another couple of months to get sorted, I was hoping to work something out amicably with them even suggesting that I would increase the rental payments by 10% for the two month extension, but I think the agency are more interested in getting a big sales commission from the sale of the house rather than a probable small commission fee from renting it, I wouldnt be suprised if they hadnt even attempted to contact the landlord to make my request.

 

So I think after getting some brilliant help from yourself I will send them a recorded delivery letter tomorrow explaining the mistake they have made and that the notice is invalid and invite them to issue me a new one giving a further two months notice and make payment for this months rent.

I believe then (correct me if I am wrong) when I come to ask for a reference they legally cant give me a bad one they can only state the truth which would be they made a mistake and I acted within the law.

[Tandy32]

And please thank your friend for me as well!!

[MrShed]

You are very welcome. All I would advise is, after you read my signature , realise that all I am giving is information in my(albeit educated) opinion. I would hate for you to rely on this info and then it turns out I am wrong for whatever reason!!! For this reason, I would advise contacting Shelter for confirmation of what I have said.

 

With regards the reference, you are right, you cannot lie in it. But be aware that a reference is as much about what is NOT said as what is said. It is always possible to phrase a reference so it comes across badly, even if they are not lying.

[Tandy32]

yes of course - thanks again MrShed much appreciated.

[MrShed]

Some information has just come to light worth noting - sorry, makes it all slightly different! The notice is definitely not going to get you evicted in Feb. However, it MAY, due to the wording of it, be valid to begin eviction proceedings on the 10th of March. So it may only buy you another month, rather than two - but as N4B rightly says below, it will take probably at LEAST a month to then evict, if not longer.

[Nightmare4banks]

Tandy32,I would like to also say:

 

1.If an agreement has never been kept by a tenant how can you be legally bound by it?Also,how can a Section 21 notice be served and executed properly(accelerated possession)?I totally agree with Mr.Shed here this would take a while to sort out and need a hearing apart from a proper tick off by the judge for not letting the tenant have a copy of the tenancy agreement without payment of the stated fee.

 

2.It would contravene all rules/laws for you to have to pay for the tenancy agreement.

 

3.Regarding an Assured Tenancy being granted,I totally disagree here Mr.Shed with all respect because the original tenancy was granted in favour of the poster after the latest housing act - (Housing Act 1996 - if I remember correctly) and in saying this all tenancies thereafter would be Assured Shorthold Tenancies automatically unless otherwise mutually agreed by the landlord and the tenant.

 

4.In conclusion,you have plenty of time to sort things out but DO NOT let the landlord/agent know what you do know.If you know what I mean!