Landlord is serving an Accelerated Possession on s 21 after has withdraw a s 8 claim

HB58

If the OP had put as much effort into finding somewhere else to live as she has on defeating the S21, she could have been settled into somewhere else by now...

DRP

Flashmanchop wrote: »

I have read the thread - but why do you feel the solicitor has a conflict of interest.

If the LL has proof of postage (which you are stating he has given to the court) he must be pretty damn certain he has correct proof of postage/delivery.

I would really like to know the answer to this question

G_M

God what a mess of a thread! How the story changes....!

Let's get straight then:
* you are no longer interested in the HMO issue (even though it could invaldate the S21)? Though I understand you might wish to pursue this - just not here since the LLisreading......

* So you are only interested in the dates of the S21 and cheque. Right:
a) you said these both came 1st class? Therefore they were not 'signed for'. (recorded delivery).
b) therefore what matters is how the law deals with 'serving' of notices sent 1t class. It is irrelevant what date they actually arrived. What matters is when they were sent.
c) Both letters were sent on 25th. Therefor the law says they were deemed (assumed) served 2 business days later. ie together.
d) Just to be clear, it does not matter that you happened to receive the S21 the day before the cheque. They were sent together, so are deemed delivered/served together ('together' = same day not same envelope!)
e) unless as you say "the landlord has given to the court as proof a 'certifcate of service' on 27 March 2013".
i) what exactly is this? If RM tracked delivery the envelope would have been marked for tracking. Was it?
ii) or does this mean the LL gave 'proof of posting' (25th) which is deemed served on 27th?
f) next... if deposit is returned on same day as S21 is served, is S21 valid? Your solicitor said yes. Most people here, myself included, think ...
g) it is legally uncertain! So far as we know there has been no test of this in court, certainly not at a Higher Court that would bind lower courts - so it is up to a judge to decide. It could go either way.

As for the solicitor
A) I still doubt a solicitor would knowingly advise a client where there was a conflict of interest
drip feeding informationto your solicitor is unhelpful (same on this thread!). But why not go back with ALL the relevant info/evidence?
C) or if you really fear a C of I, take all info/evidence to another solicitor.

Bestof all, why not try again to reach an out ofcourt settlement? You and the LL both seem to want the tenancy to end, it is just a question of when. Which comes first: the court date or the end of your studies? Can't be much in it so why not just agree you'll move out on x date...?

Amanda3

G_M wrote: »

a) you said these both came 1st class? Therefore they were not 'signed for'. (recorded delivery).
b) therefore what matters is how the law deals with 'serving' of notices sent 1t class. It is irrelevant what date they actually arrived. What matters is when they were sent.
c) Both letters were sent on 25th. Therefor the law says they were deemed (assumed) served 2 business days later. ie together.
d) Just to be clear, it does not matter that you happened to receive the S21 the day before the cheque. They were sent together, so are deemed delivered/served together ('together' = same day not same envelope!)
e) unless as you say "the landlord has given to the court as proof a 'certifcate of service' on 27 March 2013".
i) what exactly is this? If RM tracked delivery the envelope would have been marked for tracking. Was it?
ii) or does this mean the LL gave 'proof of posting' (25th) which is deemed served on 27th?
f) next... if deposit is returned on same day as S21 is served, is S21 valid? Your solicitor said yes. Most people here, myself included, think ...
g) it is legally uncertain! So far as we know there has been no test of this in court, certainly not at a Higher Court that would bind lower courts - so it is up to a judge to decide. It could go either way.

a) Yes. This is right.
b) The fact that is a cheque that has been sent is equally a matter (I have never asked for a cheque).
e) "unless as you say "the landlord has given to the court as proof a 'certifcate of service' on 27 March 2013". " I do not understand what you mean. Unless...? Please detail.
i) Because I do not understand exactly what is a 'Certificate of service' and if it is accurate.
ii) "or does this mean the LL gave 'proof of posting' (25th) which is deemed served on 27th?" do not understand what you mean equally.
f) "next... if deposit is returned on same day as S21 is served, is S21 valid? Your solicitor said yes. Most people here, myself included, think"
Not for a cheque (especially since I did not ask for a cheque and gave the deposit in cash to landlord).

G_M wrote: »

As for the solicitor
A) I still doubt a solicitor would knowingly advise a client where there was a conflict of interest
drip feeding informationto your solicitor is unhelpful (same on this thread!). But why not go back with ALL the relevant info/evidence?
C) or if you really fear a C of I, take all info/evidence to another solicitor.

Bestof all, why not try again to reach an out ofcourt settlement? You and the LL both seem to want the tenancy to end, it is just a question of when. Which comes first: the court date or the end of your studies? Can't be much in it so why not just agree you'll move out on x date...?

Do not have enough money for another solicitor : I will fill and send the the defence form by myself. Landlord does not want any compromise and trust me I am already having a lot difficulties to focus on my exams and trainee that will follow.

However, in the worst case I do not know yet how I will dealt with it but I will try to improvise.

Ps : In addition landlord said in the defence form that the property is not an HMO while it is (even if licence is not required).

JuicyJesus

I'm really confused as to why OP feels the solicitor has a conflict of interest. They seem to believe that because the solicitor does not agree with them or their contentions vis a vis the S21 they must therefore be being paid by the landlord. That is ludicrous and nonsensical.

In accordance with JuicyJesus' law, I'm sure the OP is genuine and not a troll, but if they aren't a troll they're pursuing this to an almost vexatious degree and doing things that make absolutely no logical sense.

Also, OP: whether or not you asked for a cheque, a cheque is legally a binding form of payment. Thus by sending it to you the landlord is deemed as paying it to you and, as such, your deposit was returned, regardless of how you would have preferred to receive it.

keyser666

!!!!!! it has been mentioned many a time but to reiterate the most important points 1-3.

1. The current S21 may be invalid a Judge will decide.
2. Now the landlord is reading the forums he will issue another S21 so no point in wasting your time trying to fight it.
3. Get the !!!! out of there, if this scenario is doing my head this much and I have no emotional involvement I dread to think how you are coping.
4. Possibly put in a claim for the non protection etc of your depoist
5. Ring the council and tell them he is running a HMO.

G_M

Next time please use a different colour to seperate your replies from the Qs!

Amanda3 wrote: »

a) Yes. This is right.

b) The fact that is a cheque that has been sent is equally a matter (I have never asked for a cheque).
irrlevant. And anyway thepoint I wasmaking (b above) was about the timing of the two letters. Not the method of repayment.
e) "unless as you say "the landlord has given to the court as proof a 'certifcate of service' on 27 March 2013". " I do not understand what you mean. Unless...? Please detail.
It was YOU,in a previous post, who said the LL had given the courst 'certificate of service'. And I don't understand what you meant! Please explain what YOU meant by this!
i) Because I do not understand exactly what is a 'Certificate of service' and if it is accurate. Well, you brought it up! Why? What did you mean? See your posts 41 & 47 above.
ii) "or does this mean the LL gave 'proof of posting' (25th) which is deemed served on 27th?" do not understand what you mean equally.I mean: did the LL go to the post office, post his letter, and receive from the post office a certificate called "proof of posting"? Is this what you mean in posts 41/47 by 'certificate of service'?
f) "next... if deposit is returned on same day as S21 is served, is S21 valid? Your solicitor said yes. Most people here, myself included, think"
Not for a cheque (especially since I did not ask for a cheque and gave the deposit in cash to landlord).
as I said in g) "it is legally uncertain"; "it is up to a judge to decide" No one, either here, or on landlordzon, or a solicitor, can say for sure what a judge will decide.

franklee

Amanda3 wrote: »

There were two different envelopes stamped at the same dates but the notice one arrived a day earlier. I believe that one was sent on 25 March 2013 before 2 pm and the second the one later.

My guess is that if the cheque and section 21 were posted first class on the same day then they are deemed served on the same day. Therefore I'm stuck how the landlord can prove the S21 was first - I'd expect them deemed served at the same time so neither is first. So I'd guess - and it's is a guess - this more likely to go in the tenant's favour as the onus of complying with the deposit regulations is on the landlord and the deposit should be returned before the S21 is served.

You may want to read this and the comments as both touch on cheques:
https://www.landlordsguild.com/tenancy-deposits-and-serving-a-section-21-notice/

Comment from Adrian suggests allowing 7 days after giving the cheque:
"I had obviously planned for the scenario and I share your view that as long as a landlord can show the cheque was served on the tenant (a little like showing a notice was served), then, that will be sufficient for the purpose of “returning the deposit in full” to the tenant. I would allow at least 7 days after service just to give plenty of time.

The reason I think this will work is because of the law of cheques as confirmed in Coltrane v Day [2003] EWCA Civ 342 whereby payment by cheque is deemed to be on the day the cheque was received and NOT the day it cleared (assuming it clears on first presentation)."

franklee

Also see comments here:

http://www.landlordlawblog.co.uk/2013/04/09/my-landlord-has-returned-my-unprotected-deposit-can-i-still-claim/

Comment by Industry Observer:
"Tessa I agree with all you say except in one respect I am not so sure that return of deposit and dating of s21 notice on same day is right it feels wrong to me."

Reply by Tessa:
"@Industry Observer You may be right about the time of service of the s21 notice – Susan you may be able to defend a possession claim based on s21 by putting her to proof that the deposit money was refunded to you BEFORE the s21 notice was served.

Which she may find difficult to do if everything was put through the letter box at the same time."

Amanda3

G_M wrote: »

Next time please use a different colour to seperate your replies from the Qs!

I better understand the cheque issue.

The certificate of service is exactly a document like at http://wbus.westlaw.co.uk/forms/pdf/cpf09478.pdf

They have filled it as described below:

On what day did you serve? 25/03/2013
The date of service is 27/03/2013

What documents did you serve : Section 21
And they have checked :
- "by first class post or other service which provides for delivery on the next business day".
- Being the defence
- usual residence

It has been signed by the landlord agent [but he has forgotten to put the date below his signature (this last maybe irrelevant)].

There is no "proof of posting" (at least to me) provided with the claim.