Mary Latham questions landlords rights to reposess

by Mary Latham

19:19 PM, 1st September 2012
About 6 years ago

Mary Latham questions landlords rights to reposess

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Mary Latham questions landlords rights to reposess

“Why are landlords being denied our  legal right to repossess  a “dwelling house” Under Section 21 of the Housing Act 1988?”Mary Latham – Landlord

After reading and posting on this discussion I have been thinking about the possession procedure and how the law fails landlords.

Section 8 is a big bucket of worms and perhaps the subject of another discussion but I would like to talk about Section 21.

The “no fault” possession procedure was introduced in the Housing Act 1988 under Section 21

These are the notes from my course on Possession

  • Section 21 is the no fault route to Possession
  • Requirement to give a minimum of two months notice
  • Full hearing or ‘Accelerated’ option
  • Judge MUST grant Possession Order if Notice correctly served

The Section 21 process:

  1. Complete Section 21 Notice
  2. Serve Notice upon tenant
  3. Get proof of service
  4. Complete Court Form
  5. Apply to Court for a Possession Order
  6. If tenant doesn’t move out apply for Bailiffs Warrant to Evict

Tenant may voluntarily surrender the tenancy at any time

All of this seems so straight forward – why isn’t it?

One of the most common reasons that a Section 21 fails in court is a fault on the date that Possession has been requested. I will not go into the long version here but the safest option is always to ensure that you give a minimum of 2 months Notice which expires at the end of the day before the rent is due.

The second most common reason for failure is that that the tenant denies having received the Notice. The safe option here is always to get a witness statement to say that the witness read the notice and saw you put in through the door, hand it to the tenant or post it at 2 separate post offices. Try to find a witness that is credible and not a family member.

Supposing the Notice has been correctly served and the landlord has the Witness Statement to prove it the Act says that “ a Court shall make an order for Possession of the dwelling house”. There is nothing in the Act about a tenant defending the Notice – it is a “no fault” Notice the landlord is not accusing the tenant of anything he is merely excising his legal right to repossess his own “dwelling house”. So why are we seeing Courts throwing out the landlords legal claim or delaying giving the Order when the legal conditions have been met?

In my opinion Section 21 cases should never get to court there should be a simple administrative system to check that the Notice is valid and has been correctly served and the Judge should stamp the Court Order granting Possession.  Surely this would be a relief to our over burdened legal system without denying the legal rights of the tenant to have been served the correct Notice at the correct time?

I would be interested to read posts from landlords who have had a Court Order following a  Section 21 delayed despite the fact that is was correctly served.

Now that Squatting is a criminal offence perhaps it is the right time for landlords to ask –  Why are landlords being denied our legal right to repossess  a “dwelling house” Under Section 21 of the Housing Act 1988?



Comments

Jonathan Clarke

1:54 AM, 2nd September 2012
About 6 years ago

I have never gone as far as a court order as my tenants have all left at the end of the notice period. However I include a statement on the sec 21 ( after the expiry date when you require possession by ) which protects the notice in the event that you get the dates wrong. If included then you don`t have to serve a fresh new notice as this inclusion covers you .......

``or if this
notice would otherwise be ineffective, after the date being the earliest date
not earlier than two months after the date of service of this notice when shall
expire a period of the assured shorthold tenancy.``

13:17 PM, 2nd September 2012
About 6 years ago

The scenario you lay out has happened to me twice and cost me thousands in extra losses.
Section 21 served but then possession order disputed when as you correctly state it shouldn't have been.
I did EVERYTHING correctly and still my Section 21's were disputed.

Tessa Shepperson

17:48 PM, 3rd September 2012
About 6 years ago

it is very easy for landlords to get the date wrong on the section 21 notice as the people who drafted the act made it unnecessarily complex.

So it is ESSENTIAL that all section 21 notices served have a properly drafted saving clause. There is now authority to say that the court have to accept these. You can read more on my blog post here
http://www.landlordlawblog.co.uk/2011/11/09/accelerated-possession-proceedings-defences-5/
Mary's idea sounds quite a good one, so long as tenants are given an opportunity to put in a defence - if there is one.

For example a 'proper' defence would be that the tenancy is not an AST and so the s21 process is not applicable.

Ben Reeve-Lewis

19:19 PM, 3rd September 2012
About 6 years ago

Mary I too think that Section 21’s should be disposed of as
an administrative court process and wrote about it here in the Guardian http://www.guardian.co.uk/housing-network/2012/may/29/set-up-specialist-housing-law-courts?INTCMP=SRCH
In theory they should be simple affairs with minimal grounds to defeat them – the
daftness of the date difference with S21 (4)A: notices, not required in S21 (1)
b’s, the type of agreement not being as stated and the failure to protect a
deposit or licence an HMO. Why is a judge necessary for that?

It isn’t correct to say that a tenant may give 1 month’s
notice at any time. This is only the case for periodic tenants. A fixed term tenant would be liable for the
remaing rent on the full term.

Having said that, speaking as both a tenant and someone who
deals with home loss for a living I loathe the no fault ground. I think it is
immoral that a person should lose their home through ‘No fault’ of their own.

What I would like to see as a trade off to the abolition of
the no fault ground is a strengthening of the fault grounds beyond Ground 8.

The most common grounds;

·
10 – some rent arrears

·
12 – breach of contract

·
13 – waste or neglect

·
14 – nuisance and criminal activity.

Are all currently discretionary grounds, so even if the
landlord successfully proves the case the judge may still suspend possession.
If they are made mandatory, like the infamous ground 8 this might help restore
a bit of balance.

Most tenants I know would have no moral argument against a
person being evicted for being at fault but feel deeply aggrieved at losing
their home when they may have been a perfect tenant.

To be honest I don’t know what I think about counterclaims on
Section 8s. I am toying with the idea of thinking they could form separate legal
arguments not tied to possession claims. I have seen valid counterclaims and
have also seen merely tactical ones used to buy time or in spurious attempts to
reduce rent arrears with a bit of compensation.

They have their role. I am currently helping a lady
counterclaim for illegal eviction where the landlord changed the locks because
of rent arrears. It is a genuine case. The landlord not only refused to let her
back in but he even spat at me in the interview room. He may well come out owing her money, which to
my mind would be an appropriate result.

I think……and this is not a properly well thought out legal
argument….that it should be easier fo landlords to get tenants out when the
tenant is at fault but also easier for tenants to seek redress against criminal
landlords. At the moment the law surrounding landlord and tenant activities is cumbersome,
arcane and unwieldy for both sides.

However we do it, the thing needs streamlining with equal
regard given to the needs and lives of landlords and tenants. At the moment it
is a see-saw, where one side’s needs are only met when the other side’s are
eroded.

Mark Alexander

19:41 PM, 3rd September 2012
About 6 years ago

Ben, you are missing a vital point from a lending perspective. Without Section 21 the lender is unable to sell a property in the open market, thus potential sales would be restricted to other landlords only. If you take away the huge chunk og the home owner market the demand for ownership inevitably reduces and hence so does the value if the lenders security, not to mention the value of the asett that landlords are investing into. I would pay no more than 70% of market value for a property with an assured tenancy, which is what would be effectively created with no section 21 and that's on the generous side. Take away section 21 and the PRS will shrink back to where it was in the early 90's as fast as it has recovered.

Ben Reeve-Lewis

19:47 PM, 3rd September 2012
About 6 years ago

Fair point Mark but what you are saying then is that the entire lending system, the foundation stone upon which supply of PRS housing is built cannot survive without tenants having no security of tenure. I see your point totally and its a worrying thought. I would like to see massive reform of the PRS as a system that is fair to both landlords and tenants but on this argument, which is a sound one, it can never be so.

Hmmmm I think I need to dig deeper to find a solution to this.
I go back in housing far enough to have been working pre- the 1988 Act and I freely admit that the laws were so far the tenant's way that landlords had their bums on the ground on the see-saw of rights. I see the logic of yoyur argument but I dont think the system as it is does anything to address the problems between landlords and tenants

Mark Alexander

20:03 PM, 3rd September 2012
About 6 years ago

Ben, I was into property investment and finance pre buy to let and it took lenders until 1996 to have the confidence to accept that section 21 is here to stay. Without that confidence it is highly unlikely that the phrase buy to let would ever have been invented. Funding residential property for lettings pre 1996 was a complete nightmare. 100 years ago 90% of England lived in the PRS. When the laws swung to far in favour of tenants that figure dropped to 7% in less than three generations.

Mary Latham

20:08 PM, 3rd September 2012
About 6 years ago

Ben I have one question to put to you while you are thinking about this.
Why would any landlord want to evict a good tenant?

Ben Reeve-Lewis

20:26 PM, 3rd September 2012
About 6 years ago

Yes I accept what you say Mark but what hope for tenants who want security? I'm not saying this is the fault of the landlord, its the way the system is constructed. I'm not clever enough to come up with a system that solves all problems but I hope there is an answer out there because at the moment the needs of tenants and landlords are at polar opposites. Under the present system if tenants feel secure landlords will walk, if landlords feel safe in renting then tenants have to live with constant insecurity and communities are difficult to sustain and maintain because every 3 years 50% of the population keeps moving (Stats I read last year) . That is a broken system in my book

Mark Alexander

22:30 PM, 3rd September 2012
About 6 years ago

Hi mary, I know your question was aimed at Ben so excuse me for butting in. There are, however, several reasons for a landlord wanting to let a property for anything from six months to a few years, e.g. when they take work elsewhere and want to return to their former home after a certain period. They may also choose to let a property for a short term as it makes sense to do so from a tax perspective following a refurbishment project as per the example in this blog >>> http://www.property118.com/index.php/tax-treatment-property-development-vs-property-investment/31172/

There are, of course, many other reasons.

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