Judge Throws Out Section 21 Bizarrely?

by Readers Question

8:37 AM, 1st May 2019
About 3 months ago

Judge Throws Out Section 21 Bizarrely?

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Judge Throws Out Section 21 Bizarrely?

I served Section 21 on 14th September 2018 as I needed possession of the property. The tenant was in Periodic Tenancy as the original tenancy was signed on 15/05/2014 and expired on 14/05/2015. The purpose of highlighting these dates is to exhibit that Tenancy Pre-dates Deregulation Act October 2015.

As the tenancy was signed before aforementioned Act, at the time of signing Tenancy I did not serve EPC nor did I serve How To Rent Guide”. I checked my position with one of leading barristers who specialises in Housing Law who confirmed that there was No requirement to issue above documents due to the fact it pre-dates deregulation Act however as a form of good practice before I lodge claim to Court, I should nonetheless serve both aforementioned documents to tenant. I complied with barrister’s advice.

I then had second opinion from one of renowned Landlord Association who confirmed above and further advised that, I should stipulate on claim form that, the tenancy pre-dates deregulation Act 2015 however I have served both documents to tenant before service of claim to Court.

Tenant filed NO defence. I asked the Judge to make the make order with costs. After months of waiting and chasing I received a letter from Court stating that District Judge is NOT satisfied (NO reason given on letter) and listed the case for hearing for 30/04/2019.

I attended the Court today with David (from Property118 member) who accompanied me as a Mackenzie friend despite the case was listed for hearing for 15 minutes. Upon arrival, Judge said take a seat, confirmed my name and stated that your “Section 21 is invalid” I asked the reason and he responded that EPC and How To Rent Guide should have been served on tenant before Section 21 was served. I recall I made representations that, this Tenancy pre-dates deregulation Act 2015 however he responded, late last year the Law changed which means it applies on all Tenancies regardless of when they started and responded with smirk that I dismiss you case and stamped his file.

I asked whether I can appeal, he responded “I DO NOT GIVE CONSENT TO APPEAL”. I said I will raise a complaint he stated, it was not my decision, it was Circuit Judge’s decision I am only delivering the message and unfortunately, you can not raise a complaint against Circuit Judge” I asked what my options were? He again responded with smirk ” Serve Section 21 and start all over again”

I have now again spoken to Barrister briefly as well as Landlord association and both of them confirmed that Judge reached a wrong decision on 2 counts.

a) Old Tenancies Pre-deregulation October 2015 are not affected by the new Rules.

Even if they are which they do not agree with then the Section 21 was served in September 2018 therefore even if I was subject to New Rules then this would only be possible if I served Section 21 after New Rules came in force October 2018.

Any input will be greatly appreciated.

Simon



Comments

Neil Patterson

8:47 AM, 1st May 2019
About 3 months ago

Hi Simon,

I have Paul Shamplina's (Landlord Action) original reference article on the deregulation act. Please see >> https://www.property118.com/what-does-the-deregulation-act-2015-mean-for-landlords/

From the quote: "These provisions apply to all new assured shorthold tenancies that start on or after 1 October 2015. However, as of 1 October 2018 the provisions will apply to all ASTs in existence at that time." It may be that this now applies to all tenancies, but I am no legal expert and the Section 21 was issued before that date.

"The government also introduced a new standard form that landlords must use when evicting a tenant under the ‘no fault’ (section 21) procedure. This makes it more straightforward for landlords to evict a tenant where it is legitimate to do so.

These provisions apply to all new assured shorthold tenancies that start on or after 1 October 2015. However, as of 1 October 2018 the provisions will apply to all ASTs in existence at that time.

1. Compliance with prescribed legal requirements

A Section 21 notice may not be given if the landlord is in breach of any legislation which relates to any of the below.

The condition of dwelling houses or their common parts
The health and safety of occupiers of dwelling-houses
The energy performance of dwelling-houses.

This means all landlords must provide tenants with an EPC and a Gas Safety Certificate before the tenancy begins. If at a later date the landlord wants to serve a Section 21 notice on a tenant, he will need to prove the tenant has been provided with these two documents. If they don’t do this then the landlord wont be able to use the section 21 notice.

2. Requirement of the landlord to provide Prescribed Information

At the start of each AST, landlords are now required to provide tenants with a copy of the Department for Communities and Local Government’s booklet entitled ‘How to rent: the checklist for renting in England’."

Ian Narbeth

10:26 AM, 1st May 2019
About 3 months ago

Hi Simon
Join the club of landlords who got screwed by a district judge. Yes, you may have grounds for appeal. But the time and cost involved will be disproportionate. Best advice is to start again with section 21. If you can establish a section 8 ground then you might try that instead or in addition. Make sure you have all your paperwork in order. Judges are happy to throw out s21 notices over a trivial point.

David Price

10:49 AM, 1st May 2019
About 3 months ago

As a physicist this reminds me of the three laws of thromodynamics which, paraphrased into the legal profession say:-

1 A landlord cannot win he can only break even
2 He can only break even if the judge agrees
3 the judges decision is final even when the judge is wrong

Chris Daniel

10:51 AM, 1st May 2019
About 3 months ago

Reply to the comment left by Ian Narbeth at 01/05/2019 - 10:26
There are wrong and even ' Perverse decisions behind made by judges. See Perverse Decisions on http://www.PossessionFriend.uk
My complaint is there is No ' complaints ' procedure against judges decisions. All I've been able to do on some occasions, is write to the court manager.
As Ian says, an Appeal is unfortunately a disproportionate outcome ( although it shouldn't be )
I can tell you that from a Possession companies experience, I have seen an increase in ' pickyness ' by judges over Sec 21 cases - almost as if they were - picking up the anti-Sec21 lobby vibes !!!
I can't statistically prove this, but if govt proposals get implemented, there wont be any Sec 21 cases to throw out !

Heather G.

11:08 AM, 1st May 2019
About 3 months ago

This is another reason why we need a dedicated property court, with educated, knowledgeable, unbiased judges (the last one might be hard to get!)

Mike

11:26 AM, 1st May 2019
About 3 months ago

I am speechless!
Gobsmacked
SHOCKING!

terry sullivan

11:52 AM, 1st May 2019
About 3 months ago

Reply to the comment left by Mike at 01/05/2019 - 11:26
and normal!

Simon Hall

9:23 AM, 2nd May 2019
About 3 months ago

Reply to the comment left by Ian Narbeth at 01/05/2019 - 10:26Thank you for your input Ian. Is it true that we can not raise a complaint against Judge? I have contacted the Court yesterday and spoken to Court manager and stated it was courtesy call to let her know that complaint was on its way, in regards to Judge's decision and the way I had been treated. She took my case number and stated that since I shouted at her it will go straight to trash and will not be dealt with" I responded, I have not shouted at all. She stated that I am at receiving end of your call and this is my perception that you have shouted at me and her decision is final and hanged up"
I still sent an email but won't expect a response back. It would appear that third world's dictators would treat their citizens better than we get treated at these courts.

Simon Hall

9:31 AM, 2nd May 2019
About 3 months ago

Reply to the comment left by David Price at 01/05/2019 - 10:49
Thanks David for accompanying me as a Mackenzie friend, since Judge had already made up his mind there is nothing you and I could have done to turn his decision. One thing surprised me as to why I had been invited to Court together with tenant who failed to turn up, when Judge had already concluded that I was not entitled to possession claim under accelerated process?

Luke P

10:02 AM, 2nd May 2019
About 3 months ago

Judicial Conduct Investigations Office, failing that the Judicial Appointments and Conduct Ombudsman?

I don't think any findings of either of those will result in a change to the outcome of the case (they like to exclusively leave that to the appeal process...even if the Judge was entirely wrong), but it's a start and may perhaps lead to someone at one of these organisations getting something done. If nothing else, the failures of these Judges need to be recorded -after all, they could go their whole careers making incorrect after incorrect decision.

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