by Mary Latham
19:19 PM, 1st September 2012, About 10 years ago 79
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
The Section 21 process:
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?
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