Section 21 Issued

mrsbunntobe

Hi,
Im posting this on behalf of a family member. They have been renting privately through a large local letting agent who manages the property. They have been renting the said property for around 4 years now without any issues. The majority of the rental amount is made up from HB contributions, and they make up the difference themselves. From the start of the tenancy they were never issued with an inventory and the landlord has failed to carry out small minor repairs upon moving into the property.

That aside, today they were issued with a Section 21 order, stating that the property must be vacated by November. They have been given just under 3 months notice to leave, however the tenant is most upset and annoyed at the situation. They have just had a baby that turns 1 in November, and currently recovering from a long-term illness and slowly sorting their lives out.

What is the situation in regards to the S21? Can it be disputed? I have done some brief research, which leads me to believe that the S21 isn't enforceable unless the bond has been secured correctly and documentation provided to prove this. I believe this isn't the case, however will call them to discuss this once a few users have given me some advice.

Sorry for the long post, just wanting to help them out as much as possible, because the strain and hassle of having to re-home let alone the costs involved in hiring transportation for the move, is something they really cannot undergo at this moment in time.

Thanks

Hump

Assuming the tenancy is in England and a deposit was paid after April 2007, then check if it's protected - see http://england.shelter.org.uk/get_advice/paying_for_a_home/tenancy_deposits/deposit_protection_and_tenancy_deposit_schemes

mrsbunntobe

Oh and forgot to add, the property is advertised on the letting agents website as vacant from the 10/11/12. Is this morally correct to advertise a property where the tenant is still currently housed in?

Yorkie1

Nothing wrong with advertising it, albeit a little presumptuous.

I doubt anyone would want to take it now anyway - I think most people wait until they want a house in the next month.

As others have said:
1. Is the property in England / Wales?
2. Was a deposit paid?
3. If so, has it been registered and the prescribed scheme information provided to the tenant by the LL (or their agent, the LA)?
(Can check registration online with each of the deposit schemes TDS, DPS, mydeposits - but the provision of the relevant information is a crucial element of the correct s.21 procedure).
4. Are they now in a fixed term tenancy or is it a rolling tenancy (month to month etc)?
5. When is (was) the last day of the fixed term tenancy?
6. What expiry date is given on the s.21 notice?

Edit, if the rules have been complied with then there's not much that can be done to prevent the LL getting access eventually.

A s.21 notice does not of itself bring the tenancy to an end; if the T stays put after its expiry then the LL has to go to court, in order to obtain an order for repossession. This often takes a few more weeks or even a few months depending on how busy the court is.

If the T still refuses to move out, then the LL has to get a bailiffs order to forcibly evict the T.

But as the s.21 is a no fault provision, ultimately the T will have to leave, and will be saddled with extra court costs and a duff reference if they choose to stay as long as the law permits / choose to make the LL go through the entire court process.

Hump

Lettings Agents are essentially unregulated and whilst some are fantastic there are always others with questionable practices. A s21 is a notice of the landlord's intention to seek possession of the property after a certain date - it's not a 'notice to quit'. If your relative stays after the expiry date - which is their right - then the landlord will have to enter a legal process via the county court that can take several months or longer - meaning the 'vacant from' date is a little premature. However if they do stay and the landlord makes a court application your relative risks being landed with court fees and reasonable legal costs incurred by the landlord (assuming he remembers to ask the judge to order the tenant to pay these)

tbs624

mrsbunntobe wrote: »

Hi,
Im posting this on behalf of a family member. They have been renting privately through a large local letting agent who manages the property. They have been renting the said property for around 4 years now without any issues. The majority of the rental amount is made up from HB contributions, and they make up the difference themselves. From the start of the tenancy they were never issued with an inventory and the landlord has failed to carry out small minor repairs upon moving into the property.

That aside, today they were issued with a Section 21 order, stating that the property must be vacated by November. They have been given just under 3 months notice to leave, however the tenant is most upset and annoyed at the situation.

As other posters have said the s21 notice does not say "you must vacate by x date", it is a notice that the LL intends to seek repossession of the property at some point *after* x date. LL will need a court order to formally bring the tenancy to an end if the Ts choose to stay put.

mrsbunntobe wrote: »

They have just had a baby that turns 1 in November, and currently recovering from a long-term illness and slowly sorting their lives out.

Unfortunately Ts on ASTs have very little security of tenure and the Ts personal crises are unlikely to make any difference if a LL decides that they want/need their property back.

Have there been any delays in rent payment? It matters because your family member will obviously need references for a new property.

Is the LL wanting to ask an increased rent that your family members are unable to meet ( you've seen the ads)?

It seems strange to me that a LL would want to kick out a fairly long established T simply to re-advertise the property and run the risk of a void, if that T has always paid on time and takes care of the property.

What is the situation in regards to the S21? Can it be disputed? I have done some brief research, which leads me to believe that the S21 isn't enforceable unless the bond has been secured correctly and documentation provided to prove this. I believe this isn't the case, however will call them to discuss this once a few users have given me some advice.

It's not that its simply unenforcable per se - all that can be hoped for is a time delay as the LL merely has to sort out late scheme registration ( can be done online) & provision of appropriate documentation out and then re-serve the s21.
NB - edited: I failed to also mention the necessity for the late- registered deposit to be returned to the T/deductions agreed to enable a new valid s21 to be served. Please see Franklee's important clarification post below, re the Localism Act and also this from the TDS:

"If a landlord fails to meet the initial requirement to protect the deposit, no Section 21 Notice can be served until either the landlord returns the deposit to the tenant in full or with such deductions as the tenant agrees; or if the tenant has taken proceedings against the landlord for non-protection and those proceedings have been concluded, withdrawn or settled (for example, by the court awarding damages being the return of the deposit or a fine not more than three times the value of the deposit)."

Unfortunately, your family members *will* need to start seeking out a new home. If they are on a low income then they want to consider asking the Council about Bond Guarantees for private sector tenants so tha they don't have to find a tenancy deposit.

They should also ask the Council for a list of accredited private sector LLs and ask the local LL association ( google or use Yellow Pages /Thomsons) for contact info for private LLs who self manage their properties. It means that they will avoid the huge charges levied by LAs - most self managing LLs only charge the actual cost of the 3rd party referencing check.

If they can't afford removal firms then they could check out "man and a van places" or see if there is a local charity group who have a van and may be able to help ( maybe try via the local Round Table/Rotary etc)

franklee

tbs624 wrote: »

It's not that its simply unenforcable per se - all that can be hoped for is a time delay as the LL merely has to sort out late scheme registration ( can be done online) & provision of appropriate documentation out and then re-serve the s21.

That's interesting, I thought the Localism Act 2011 had changed things so that landlords have 30 days from taking the tenant’s deposit to register it and provide the tenant with the prescribed information. I thought they cannot serve a Section 21 even if they register the deposit and/or serve prescribed information out of time unless they repay the deposit to the tenant agreeing any damage deductions with the tenant or the the tenant has completed a claim for compensation for the Landlord’s failure to register the deposit. Unless the 6 April 2012 changes have already been watered down?

jamie11

franklee wrote: »

That's interesting, I thought the Localism Act 2011 had changed things so that landlords have 30 days from taking the tenant’s deposit to register it and provide the tenant with the prescribed information. I thought they cannot serve a Section 21 even if they register the deposit and/or serve prescribed information out of time unless they repay the deposit to the tenant agreeing any damage deductions with the tenant or the the tenant has completed a claim for compensation for the Landlord’s failure to register the deposit. Unless the 6 April 2012 changes have already been watered down?

That's my understanding of it as well, also even if the deposit is returned in full to enable a S21 to be served the tenant can still sue for non compliance.

Hump

The DCLG fact sheet says:

What happens if a deposit has not been protected?

• If a landlord fails to protect the deposit, the landlord cannot serve notice to regain possession of the property using the ‘notice only’ grounds under Section 21 of the Housing Act 1988 until either the landlord returns the deposit to the tenant in full or with such deductions as the tenant agrees; or, if the tenant has taken proceedings against the landlord for non-protection and those proceedings have been concluded, withdrawn or settled.

• If a landlord fails to provide Prescribed Information the landlord cannot serve a Section 21 Notice until the Prescribed Information has been provided.

• The tenant may initiate legal action through the county court. If the court finds that the landlord has not complied with the legislation the court must order the landlord to pay the applicant a sum of money between one and three times the amount of the deposit.

see http://www.communities.gov.uk/documents/housing/pdf/2124898.pdf

Hence it appears that if the deposit has been protected but the prescribed information not given to the tenant, then providing that information re-instates the landlord's ability to serve a s21

franklee

Thanks Hump. So pretty much a let off if the deposit is protected in time but the prescribed information wasn't served as it can just be served late. Can the tenant take any action against the landlord in that case?

silvercar

I would suggest speaking to the landlord. There must be a reason why he wants long standing decent tenants out and still wants to let the property. If it is because he wants a rent they can't afford then they could negotiate, but it may be the landlord is happy for them to stay and a letting agent wants fees!