Claim struck out for section 21 over 12 months old?

by Readers Question

11:01 AM, 2nd September 2015
About 3 years ago

Claim struck out for section 21 over 12 months old?

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Claim struck out for section 21 over 12 months old?

I just received a Court Order which struck out my claim for possession. The reason given was: “Section 21 expired more than 12 months prior to the commencement of proceedings it cannot be relied upon”.expired

I have done many cases with a section 21 notice which was older than 12 months without any problems.

Is this part of the new rules?

Many thanks

Charles



Comments

Mark Lynham

11:23 AM, 2nd September 2015
About 3 years ago

just curious as to why its so old? did you serve it prior to the tenancy commencing or something?

Charles Fonteijn

11:38 AM, 2nd September 2015
About 3 years ago

You cannot serve a section 21 notice prior to the tenancy commencing. A section 21 can only be served after: the signing of the tenancy agreement, the deposit protection and prescribed information. It is best to make the tenants sign that they received everything in the right order to prevent the tenant claiming during repossessions proceedings that section 21 was served first. I do not know when the new rules regarding section 21 are starting that require you to wait 4 months before you can serve section 21.

Paul Franklin

11:39 AM, 2nd September 2015
About 3 years ago

The new provisions in the Deregulation Act that limit a s.21's validity to 6months from date of service don't come into force until 1st October and even then are limited to new tenancies or tenancy renewals created from that date so can't be that as far as I'm aware.

Seems strange, is there any possibility of an appeal? There is case law that shows s21s that are much older than this are still valid, though I can't think off the top of my head of specific examples.

Luke P

11:46 AM, 2nd September 2015
About 3 years ago

I have many older than 12 months and have never had a problem in using one (that figure will run into several hundred successful uses).

Charles Fonteijn

11:50 AM, 2nd September 2015
About 3 years ago

Reply to the comment left by "Paul Franklin" at "02/09/2015 - 11:39":

In order for an appeal to be successful I will probably need case law as evidence.

Ross McColl

12:04 PM, 2nd September 2015
About 3 years ago

I have managed to overturn quite a few judges decision. Section 21 of the housing act 1988. http://www.landlordsguild.com/how-long-does-section-21-notice-last/

Charles Fonteijn

12:54 PM, 2nd September 2015
About 3 years ago

Reply to the comment left by "Ross McColl" at "02/09/2015 - 12:04":

Can you indicate with a percentage in how many cases you were successful in overturning the judge decision. This will help me to evaluate if it is worthwhile to appeal. In the link you mention the pre-action protocol. I thought this was only required of housing associations?

Ross McColl

16:28 PM, 2nd September 2015
About 3 years ago

Reply to the comment left by "Charles Fonteijn" at "02/09/2015 - 12:54":

To be honest I didn't read threw the nuts and bolts of the article but have read lots of things in the past that clearly state there is no expiry date. The amendments to the deregulation bill mean there will be soon, but not just yet. I have challenged 4 decisions for various reasons regarding section 21's in the last 3 years and they have all come back in my favour. It's very easy. All I did was rang the court, told them I didn't agree with the decision for legal reasons, wrote a letter stating my point and matter of law where possible then asked it be put back in front of the judge. Generally took 3-4 weeks to come back with the possession order at Medway Court and Maidstone. Also overturned quite a few defence hearings because they had no validity, so I didn't have to wait for them either. Just my experience, but hopefully it works like that across the board. All the best. Ross

Charles Fonteijn

16:38 PM, 2nd September 2015
About 3 years ago

Thank you for your comments. It seems that it is worthwhile to try to challenge the Court Order.

James Fraser

16:51 PM, 2nd September 2015
About 3 years ago

Reply to the comment left by "Charles Fonteijn" at "02/09/2015 - 16:38":

There is no shelf life to a S21, (the judge is perhaps getting confused with the one year limit on S8). Theoretically, you should be able to use an S21 after any period of time, but we do hear of occasional judges getting sniffy if they're more than two years old as they say it is 'inequitable' for a tenant to be expected to remember it. The NLA's advice would always be to re-serve it wherever possible to avoid this eventuality.

You can apply to court on N244 to get the judge to look at this again, perhaps reminding him of the differences in S8 and S21 regarding 'live' timescales?!

Best of luck.

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