Why do judges find the need to be pedantic?

by Readers Question

9:51 AM, 3rd August 2016
About 3 years ago

Why do judges find the need to be pedantic?

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Why do judges find the need to be pedantic?

I had to serve notice on a tenant as the landlord was selling. The tenant couldn’t find anywhere to move to because prices have gone up so much so went to the council and they said they’d house him upon receipt of a court order. The landlord wasn’t happy but it is what it is.pedantic

It came to the end of the section 21 so started accelerated possession proceedings and the tenant didn’t appeal anything as he just wanted his court order, but the judge wrote to the landlord with this:

“Clause 12.3 and note 5 of the tenancy agreement provide for service of notices in accordance with section 196 of the Law and Property Act (recorded delivery post). On what basis is it said that sending by ordinary first class post is good service?”

To be fair I normally deliver by hand and have never had a problem. This was by post as the tenant knew it was coming and he also acknowledged receipt. He just wants the council to house him, so as he hasn’t submitted an appeal. I have to ask what on earth the judge thinks he is playing at.

I have got the landlord to reply with the following so will see what happens, but one has to question the judges motives for being so awkward.

“Further to your letter dated 26th July I would advise the following;
1. s196(1) Law of Property Act 1925 requires the notice to be in writing – which it was
2. S196(3) of the Act states the notice is sufficiently served if left at the last known place of abode – which it was so left when delivered by the postman and receipt of the notice has been confirmed by the tenant.
I hope the above answers your question.”

I was also going to mention Civil procedure rules ( page 2 of the n215 certificate of service) provides for service by ordinary post but thought best not.

I will keep you updated

Mark



Comments

Carol Duckfield

10:18 AM, 4th August 2016
About 3 years ago

Reply to the comment left by "Mark Lynham" at "04/08/2016 - 09:12":

You may want to read this as it clarifys things
http://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN06856 the relevant sections are
8.14 With certain exceptions, a person who has been occupying accommodation as a tenant and who has received a valid notice to quit, or notice that the landlord requires possession of the accommodation, would have the right to remain in occupation until a warrant for possession was executed (following the granting of an order for possession by the court). The exceptions are tenants with resident landlords and certain other tenants who do not benefit from the Protection from Eviction Act 1977. However, authorities should note that the fact that a tenant has a right to remain in occupation does not necessarily mean that he or she is not homeless. In assessing whether an applicant is homeless in cases where he or she is a tenant who has a right to remain in occupation pending execution of a warrant for possession, the housing authority will also need to consider whether it would be reasonable for him or her to continue to occupy the accommodation in the circumstances (see paragraphs 8.30-8.32 below).
[…]
8.31. In determining whether it would be reasonable for an applicant to continue to occupy accommodation, the housing authority will need to consider all the factors relevant to the case and decide the weight that individual factors should attract. As well as the factors set out elsewhere in this chapter, other factors which may be relevant include the general cost to the housing authority, the position of the tenant, the position of the landlord, the likelihood that the landlord will actually proceed with possession proceedings, and the burden on the courts of unnecessary proceedings where there is no defence to a possession claim.
8.32. Each case must be decided on its facts, so housing authorities should not adopt a general policy of accepting – or refusing to accept – applicants as homeless or threatened with homelessness when they are threatened with eviction but a court has not yet made an order for possession or issued a warrant of execution. In any case where a housing authority decides that it would be reasonable for an applicant to continue to occupy their accommodation after a valid notice has expired – and therefore decides that he or she is not yet homeless or threatened with homelessness – that decision will need to be based on sound reasons which should be made clear to the applicant in writing. The Secretary of State considers that where a person applies for accommodation or assistance in obtaining accommodation, and:
(a) the person is an assured shorthold tenant who has received proper notice in accordance with s.21 of the Housing Act 1988;
(b) the housing authority is satisfied that the landlord intends to seek possession; and
(c) there would be no defence to an application for a possession order;
then it is unlikely to be reasonable for the applicant to continue to occupy the accommodation beyond the date given in the s.21 notice, unless the housing authority is taking steps to persuade the landlord to withdraw the notice or allow the tenant to continue to occupy the accommodation for a reasonable period to provide an opportunity for alternative accommodation to be found.7

John Frith

10:29 AM, 4th August 2016
About 3 years ago

Reply to the comment left by "Carol Duckfield" at "04/08/2016 - 09:00":

It doesn't matter who, or how many times that councils are reminded that they do not need to have a court order for eviction for a person to be considered homeless, they will be ignored. Until they have the resources to re-house all who are eligible, those on the ground will prioritise those who are in imminent danger of being homeless - ie those facing a court order for eviction.

Anyone who who would like, or expects the councils to change their practice, and doesn't address the funding issue is not going to get very far. Is there is a way to engender the political will to make that expensive (for the councils) change - that's the question.

Mark Lynham

10:30 AM, 4th August 2016
About 3 years ago

Reply to the comment left by "Carol Duckfield" at "04/08/2016 - 10:18":

many thanks Carol... i think our council wants the court order so that they know notice etc have all been done correctly, or is valid.. as 8.14 mentions.... to be fair its a step in the right direction as opposed to telling tenants to stay until the actual eviction...
I will copy and pop that somewhere though as im sure it will come in useful. Thanks again.

Romain Garcin

11:02 AM, 4th August 2016
About 3 years ago

Reply to the comment left by "Mark Lynham" at "04/08/2016 - 09:12":

Hi Mark,

The N215 form does not actually allow anything. When you fill the form you are making a statement of fact, certifying when and how you served the document.

It is then for the court to consider your statement and whether the document was validly served.

If a contract or tenancy agreement provides for a certain method of service then this is binding and the method must be used for service to be valid.
In your case the tenancy agreement states that notices must be served according to s.196 of the LPA 1925.

Carol Duckfield

11:06 AM, 4th August 2016
About 3 years ago

Reply to the comment left by "Mark Lynham" at "04/08/2016 - 10:30":

Then all the council are doing with that policy is adding to your tenants problems by forcing additional costs on them which they more than likely can't afford.
Have you contacted the councils landlord forum , assuming they have one, and raised the matter with them? I sit on the Birmingham forum and we are pursuing this.

Mark Lynham

11:26 AM, 4th August 2016
About 3 years ago

Reply to the comment left by "Romain Garcin" at "04/08/2016 - 11:02":

totally understand Romain but again, i think the judge is being pedantic as no one is actually querying if the notice was recieved.... and again, i wont be doing it that way ever again.
To be fair he's asked on what basis the landlord considers it good service so will just need to see how we get on... not sure if to take it as a warning shot for me not to do it that way or whether he is considering refusiing possession but time will tell.

Jay James

11:28 AM, 4th August 2016
About 3 years ago

It is a good idea to serve the way the contract stipulates.

Romain Garcin

13:41 PM, 4th August 2016
About 3 years ago

Reply to the comment left by "Mark Lynham" at "04/08/2016 - 11:26":

I think you would be OK if your tenant had accepted the notice, which I don't think is the same as receiving it. Perhaps that depending on how your tenant acknowledged receipt you could try to claim that he accepted the notice.

Michael Barnes

13:45 PM, 4th August 2016
About 3 years ago

Reply to the comment left by "Mark Lynham" at "03/08/2016 - 14:49":

‘Section 196 of the Law of Property Act 1925 provides that a notice shall be sufficiently served if sent by registered or recorded delivery post (if the letter is not returned undelivered) to the Tenant at the Property or the last known address of the Tenant or left addressed to the Tenant at the Property.’


That clause seems to me to say "This is a valid way of serving notice", not "this is the only way of serving notice".

Mark Lynham

14:59 PM, 4th August 2016
About 3 years ago

Reply to the comment left by "Michael Barnes" at "04/08/2016 - 13:45":

i would read it the same Michael... also the notice was 'left addressed to the Tenant at the Property'.... by the postman.. as long as the tenant doesnt dispute that, which he doesnt, then i would deem it as being served as per the tenancy.

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