Rented flat sold with vacant possession.

Zorz_2

Hi all,


I rent a bedsit in an HMO flat, managed by a LA. The flat was on the market for some time, we (the tenants) knew that and were asked to be at home a few times for viewings, etc. As I wrote in an earlier thread, it was listed at an auction a few months back but wasn't sold. Surprisingly though, a few weeks ago we received emails from the managing agent that the landlord sold the property at an auction with vacant possession and accordingly we would receive S21 notices.


A few key details:
The property is in England
We have 3 separate tenancies, mine is a periodic one. The other tenants are in fixed term ASTs.
My deposit is protected in a scheme. I got the paperwork and checked it online too.
I did not sign or get an inventory when I moved in.

Now, we always assumed that the property would be bought as a BTL and our tenancies would go on as usual, so this came as a surprise! Especially, given the fact that new tenants moved in less than a month before that! So this is where it gets interesting. The LA that manages the property is located in a different area. The viewings were arranged by a local agency. The auction that the property was in in February, was organized by a third estate agency. The next auction of that agency took place in April and this flat wasn't in. Instead it's listed with that agency in their normal “for sale” list, with a note that it has been sold subject to contracts.

Clearly, there is a communications failure between the owner and the managing agent. If the manager knew about, he wouldn't bring in new tenants! He admitted to me that this came to a surprise to him as well. Now, the manager has made mistakes in the past (like giving me a S21 notice right along with signing my tenancy, I now know for a fact that this was invalid) but he is not that incompetent. That's why he eventually sent only me a S21 notice (as I am on a periodic tenancy) and not the others. I know that the owner has the right to ask for possession in my case and that he hasn't for the other tenants during their fixed terms. That's why he offered them a small amount of money to leave early.

I've also been told by one of the other tenants, that the owner admitted to them that he owes money to the managing agent and that effectively the agent doesn't represent him anymore. Unfortunately we don't have that in writing (and it could just as well be wrong or a lie). What I can tell for certain is that the owner tried to sell the flat without informing the LA who manages it. The LA is basically ignoring our requests for repairs. The other tenants have stopped paying rent and they ringfenced the amount on the side, until the situation is resolved. I paid for this month, but I am worried about my liability here. I always pay my rent into the agency's account as instructed at the beginning of the tenancy.

If the landlord and their agent get in a legal fight, can the landlord turn against me claiming that he didn't receive my rent (if the agent keeps it) or am I legally protected? I definitely don't want to pay twice for rent! In the absence of any further written instructions by the LL asking me to do otherwise, am I OK if I keep paying the rent to the agent?

Another issue is the validity of the notice I was served. As it stands now, the notice ends just before the Olympics. For practical and budget reasons I'd prefer to stay put during the games and find a new place afterwards. I've read here that the notice must be served in a very specific manner, otherwise it will be invalid. So, I looked carefully at the notice and I've identified 2 potential errors.

The first is that my name is misspelled and the order of names is inverted, compared to my passport. Is this a minute detail, and -if we reach to a possession hearing- the presiding judge will say “OK, so the agent got a vowel wrong, big deal. You are still the same person, you definitely got served the notice, so let's move on!” or will this render the notice invalid?

The second issue, is the date it was served. Say, my tenancy ends on the 20th of the month. I received the notice by second class mail (skint agent, I hope this turns against them!) on the 20th . All right so far. The notice was posted on the 18thof the month (I kept the envelope with the postmark on it). On the notice itself, it reads “Date this notice is served: 18th May 2012”. Now, I'm not a lawyer but this seems just wrong to me. How it can be considered that I was legally served a notice on the day it was handed to Royal Mail, and while I got it 2 days later?


I searched online and found this:

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_part06a#IDABMU1

PRACTICE DIRECTION 6A – SERVICE WITHIN THE UNITED KINGDOM

10.1

Rule 6.26 contains provisions about deemed service of a document other than a claim form. Examples of how deemed service is calculated are set out below.
10.2

Example 1
Where the document is posted (by first class post) on a Monday (a business day), the day of deemed service is the following Wednesday (a business day).



http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part06#IDA4H1HC


Deemed service

6.14

A claim form served within the United Kingdom in accordance with this Part is deemed to be served on the second business day after completion of the relevant step under rule 7.5(1).


Does this apply to my case? If so, first and foremost, the date indicated on the notice itself is wrong! And this says 2 business days for first class post. I see no mention of second class post, but quite obviously it's reasonable to accept that it takes longer. I think Royal Mail has a 3 business days standard (http://www.royalmail.com/delivery/business-delivery-options-uk/second-class-mail “We aim to deliver your mail within three working days of your sending it. “). That would make the notice to be deemed served on the 21st of the month, hence being invalid. All in all, is this notice correct or will it be dismissed?



Another thing is that the landlord may be in dire financial state and that's why he is desperate to sell. The agreed sale price in the ad is around 20% down from what he bought it nearly 5 years ago! This being London, with it's ever increasing prices tells me something. I also suspect that he may got the place with a residential mortgage, without consent to let, since some mail (like electricity bills) arrives here addressed to the landlord's name.

Finally, the landlord keeps texting and calling one of the other tenants (the one with the longest remaining fixed term) and keeps pressing her to move. She showed me some of his texts and I can understand why she feels being intimidated (although from what I've seen so far he hasn't been downright harassing yet). As a result, she replaced the lock of the property to feel more secure. I have already replaced the lock in my room, I know I can do that, but I'm not so sure we can legally do it in the front door as well (since it is an HMO with different tenants, each renting a part of the property and not its entirety). I told her my concerns, but I didn't object to this. And of course I'm not saying that we will deny the LL or the agent access altogether (for the much needed repairs or inspections) but we don't want them to come in while we are away and steal our belongings or try to forcibly evict us.

This got quite long-winded, I hope you made it this far. I tried to explain things as clearly as possible. For the time being, I really need some answers about my 2 important questions (liability of rent, validity of s21 notice) and I would be really grateful for this.

ruggedtoast

Not sure but here's a bump for you.

I would try the cab or the council housing office ASAP.

maninthestreet

As the property was sold 'a few weeks ago' at auction, completion must be immiment. As the property has been sold 'with vacant possession', the landlord is unlikely to be able to meet his contractual obligation to hand the property over to the purchaser with the said 'vacant possession'. I wonder if the puchaser knows about this situation?

dancingfairy

You could get on to the auctioneers place and let them know that there are people living there and get them to pass the message on.
I'd be on the phone to Shelter (the housing charity) to get advice. Your housemate should not feel bullied/pressurised into leaving but take advice from Shelter as to whether it's best to get out now or whether to stay and fight it out. Legally I believe you are in the right to remain but you need toconsider what's in your best interests.
In terms of the S21 it is a notice that the landlord wants posseession - even if they have served the notice correctly they will have to go to court to enforce it and then they will have to appoint bailiffs - the whole process could take many months. I've also heard that the whole courts process could well be disrupted in London with the Olympics and travel and all that so they could be a lot longer wait than normal.
All in all I'd get on to Shelter for advice.
Oh and keep those text messages for evidence of harrassment in case you need them.
Best of Luck with this horrid situation.
df

theartfullodger

Agree about 'phoning Shelter, but expect a wait from this excellent but overworked charity, 0808 800 4444 see..


http://england.shelter.org.uk/get_advice/how_we_can_help/housing_advice_helpline

Shelter provides a free, national telephone advice line staffed by trained housing advisers. We have helped thousands of people, from finding them a place to sleep to suggesting how to handle mortgage arrears.
Ring 0808 800 4444


8am-8pm Monday-Friday
8am-5pm Saturday-Sunday

Calls are free from UK landlines and main
mobile networks (Virgin, Orange, 3, T-mobile, Vodafone and O2).

Typetalk calls to the helpline are welcome.*

We will answer your call as quickly as we can and treat it confidentially. The helpline gets very busy at times, but please keep trying.

However you have another option: If you don't leave the LL will be in a right mess and it may cost him a lot (a lot - £10's of thousands possibly..). You could all agree to leave, for a LOT (I mean a LOT..) of ££££. If you do get an agreement make sure you do it through a solicitor and the money is safe in his hands before you go...

Your landlord sounds like a right twit & idiot. Both he & the agent may think you "have" to go after S21 expires: You don't, even for a valid one, until court possession order is granted & bailiffs carry you out.

If the sale goes through your existing tenancies continue, exactly as before, but with the new owner as the landlord (but he needs to wrrite & give you various notices before rent is due..). The new owner would probably not be happy about this!! (Tough..)

Zorz_2

Thanks for your replies. I 've been thinking about the completion deadline myself too. The first time the flat was on auction, I checked the auctioneers website, and if I recall correctly, they say that the contracts must be exchanged within 28 days of the auction. I don't know if that's an industry standard, I guess it is.

Now, if the owner really sold it at an auction with vacant possession (I'll explain the “if” part in a moment), then he definitely shot himself in the foot there. Even if all the tenants had periodic tenancies, you still can't kick out legally someone so shortly! Let alone if the tenants have many months left in their fixed terms...

Now, the why “if”. We have been told by the managing agent that the owner sold the property at an auction, both by phone and email, and I got this in writing too, in the cover letter of the s21 notice I was sent. But, looking around, I've only seen this property advertised 3 times. Once at February's auction and twice as a regular ad (at zoopla, mouseprice, etc) by the local agents and by the other firm who did the auction (who by the way, have put a “Sold STC” note in the ad, so I guess the sale is thru them). However, it wasn't sold in February's auction and it wasn't listed at all in April's auction. The managing agent wasn't involved in the sale.

Nevertheless, the owner appears desperate to get us out of here. He offered some money to the other tenants in order to vacate early, but honestly, it's a laughable amount, it barely covers the referencing fees agents ask prospective tenants. Not even moving costs, the new deposit, etc. I haven't been offered anything, probably the owner thinks I'm already packing!

The prospective owner, ought to know that there are sitting tenants in the property. All 3 times it was advertised, this was specifically mentioned, and so the rent income the property currently makes.

Personally, I'm trying to care for my best interest, within the law of course. I don't intent to trash the place as a revenge, or leave with rent arrears or anything. But the way things unfold, I don't see getting a good reference. Which is really unfair, because if anything, I've been an exemplary tenant. I have money on the side for moving and for the deposit of the new place, until I get the current one back. But, being self-employed and a foreigner, I expect that most landlords won't like that and ask for a few months rent upfront. This will make things rather tight for me.

Another issue is that with things as they are now, neither the landlord nor the agent don't care about repairs. The flat has issues with mould caused by leaks on the roof, which have never been dealt with properly. The recent monsoons have made things worse as you can imagine. A couple of weeks ago, I noticed a leaky pipe. I contacted the agent, 3 times so far (by email, so I'll have a proof of that) and still it hasn't been fixed. I warned them that it would cause damage to the property -it already has now- but they don't seem to really care. I expect any day now that the people downstairs will knock our door and complain about damage in their flat as well. I definitely don't want to get in the middle of that too!

So far, I tried to call Shelter but the number is always busy. I guess I should try calling them very early in the morning. I've contacted the local Council, because I've found some information indicating that the property ought to be a licensed HMO, while it isn't. That would have been great news, as it would give us more rights, the s21 notice would have been automatically invalid, etc. Unfortunately, the information was outdated and the property falls out of the mandatory licensing rules. Other issues we can claim as leverage is the state of repairs and overcrowding. I will try to find out about this.

BitterAndTwisted

None of the tenants on fixed-term ASTs can be forced to move out. They have a great deal of leverage to negotiate an early termination of their contracts with a financial consideration for agreeing to do so. You do not as you are on a periodic tenancy.

As has been suggested before, you cannot be compelled to leave without a court-order but this assumes that you have been correctly served with a Section 21 Notice.

Keep paying your rent to the original landlord or their agent until and unless you have been informed in writing of who your new landlord is.

Forget all this auction taking-place-or-not business, as that is not any concern of yours. What is, is the formal documentation you have received and can be proven has been served on you.

The other tenants, by withholding their rent, could be at risk of being legally evicted with a Section 8 Notice, so they should be aware tht they must ensure that they do not owe more than two month's rent. Note that this is two month OWED and not in arrears as rent needs to be paid monthly in advance.

Sit tight, pay your rent and get saving. If the worst comes to the worst you could find a property and become someone's lodger. This may not entail a landlord being interested in getting a reference from your current landlord at all.

G_M

The current owner/LL has a real problem. Auction sales require Completion usually within 30 days, and there is NO WAY any of you can be evicted in 30 days.

His only options are
1) default on selling with vacant possession, which will cost him a LOT or

2) bribe you all (a lot!) to leave voluntarily within the 30 days

Those on Fixed Term tenancies cannot be evicted till the end of their Fixed Term as long as they keep paying their rent.

On a periodic, you must be given the correct notice (more here) as you appear to understand.

The first is that my name is misspelled and the order of names is inverted, compared to my passport. Is this a minute detail, and -if we reach to a possession hearing- the presiding judge will say “OK, so the agent got a vowel wrong, big deal. You are still the same person, you definitely got served the notice, so let's move on!” or will this render the notice invalid?

I suspect this would not render the Notice invalid.

The second issue, is the date it was served. Say, my tenancy ends on the 20th of the month. I received the notice by second class mail (skint agent, I hope this turns against them!) on the 20th . All right so far. The notice was posted on the 18thof the month (I kept the envelope with the postmark on it). On the notice itself, it reads “Date this notice is served: 18th May 2012”. Now, I'm not a lawyer but this seems just wrong to me. How it can be considered that I was legally served a notice on the day it was handed to Royal Mail, and while I got it 2 days later?

Notice is deemed as served 2 working days after posting 1st class. Normal advice to Landlords is to send it at least 2 days ahead of the required service date, first class, with 'proof of posting' from the post office.

If you can prove it was sent 2nd class, I do not believe it was served in time and was therefore invalid. I assume you received it on the 21st...... didn't you......?

G_M

theartfullodger wrote: »

...
Your landlord sounds like a right twit & idiot. Both he & the agent may think you "have" to go after S21 expires: You don't, even for a valid one, until court possession order is granted & bailiffs carry you out.

Agreed.

But to be honest the buyer is a bit of a twit too.....though it won't cost him ££, it'll just be the inconvenience of not getting the property he wants, at the time he wants, with the emptyness he wants.

BitterAndTwisted

Second-class mail does not guarantee that you will receive it in five working days. Just try and get the Royal Mail to accept that an item of mail has been lost in under a month.

OP: that Section 21 Notice has never been safely received by you, has it? It can't have been unless the agent sent two copies from two different post offices on the same day. Do not acknowledge to anyone, not even verbally, that you have received it. They might have proof-of-postage for that Notice but no proof that you got it at all. Items of mail go astray all the time....

DVardysShadow

I don't believe that the property has been sold. You hint that the Olympics figure in this and I incline to agree.

If notice was posted on a Friday, 2nd class, it really could not be served earlier than the Wednesday.

While mis spelling your name might not be enough to invalidate the notice in court, the matter will not get to court for at least 6 weeks after its expiry. So plenty of useful time to suggest that the notice is invalid and to demand that it be served again. After 20 June. This still leaves the date of service to be raised as an argument, if the notice is not served again.

Or was it popped back in the post, "Return To Sender" because it was wrongly addressed? :rotfl::rotfl::rotfl:

If this really is about the Olympics, I think that there is enough to see you past the date - but don't forget that after the date, you will not be tenant of the month with this LL ever again so you need to start looking.

I am surprised that no one learned anything form the Eclipse in 1999. After the event, it was a damp squib for all the landlords who were going to make £1000's for renting their places out for a few nights.