Section 21 issued prior to contract signing

Section 21 issued prior to contract signing

9:50 AM, 22nd July 2013, About 8 years ago 22

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We have private tenancy managed by a letting agent. It is a one year contract, rent has been paid on time and all other terms have been complied with, i.e. we are clean, quiet, diligent tenants.

10 months into our contract our letting agent says our landlord wants them to re-market the property.

We have tried to secure alternate property but the deal fell through. We contacted our letting agents and informed them we will not be vacating for the time being as we have been unable to find a suitable alternative property but are continuing to look.

The response from our letting agent was “too bad you have to be out”. I replied that since they had not served section 21 that we would not be leaving but they insist they did serve notice. I questioned when it was sent … they stated “a long time ago and its your word against ours”.

Upon reviewing contract documents given in person prior to signing and on the day of signing I have found a section 21 notice dated/issued 21 days prior to the contract signing. This was slipped in with other misc papers, we were not alerted to it or notified of it. We were, in fact, not aware of what a section 21 was until recently.

We are maintaining the section 21 is invalid …it was generated 3 weeks prior to the residential contract being signed.

Even if it was given on the day with the contract packet the deposit could not possibly have been secured in the scheme prior to the contact signing. Our letting agents gave us documents as package, the contract did not supply the deposit scheme confirmation and reference ID, although that did arrive later.

Are we right in maintaining the section 21 notice is invalid?

The expiry date is valid, it is just the issue date was three weeks before the contract was signed. There was also no exchange of funds at that point and no contract in effect.

It is very stressful they are harassing and threatening eviction.

Any input much appreciated.

RobSection 21 issued prior to contract signing



Comments

by Pete Judd

21:38 PM, 22nd July 2013, About 8 years ago

Reply to the comment left by "Mark Alexander" at "22/07/2013 - 19:13":
I'm sure I've read it that by law you must provide a tenant with your name and address. Certainly my HMO licence states that it is a requirement that I have to satisfy in order to comply with the licence. The only other reference I can find on line quickly is from citizens advice which states "Your landlord is obliged by law to give you their name and address, regardless of whether or not you have a written tenancy agreement."

by Gary Nock

21:39 PM, 22nd July 2013, About 8 years ago

Hi All,

Extract from Wise-Moves and Landlord Today below:

Friday 5th July 2013

A leading law firm has said a landlord’s details should be included on Prescribed Information, even where an agent is fully managing the property, to avoid any possible legal problems with tenancy deposits.

Linda Howard, of Shoosmiths, warned that different judges could place different interpretations on the wording of requirements.

Howard was making her views known after our report about a possession order being overturned because the Prescribed Information gave the agent’s name.

She said: “The Housing (Tenancy Deposits) (Prescribed Information) Order (2007) seems to make it clear, at 2, (g) (iii) that the name, address, telephone number and any email address or fax number of the landlord, not the agent, must be given.”

She said that at another case in the county court, a duty solicitor raised exactly the point of an agent’s rather than the landlord’s details being given.

The judge adjourned those proceedings because of seeming non-compliance with the Prescribed Information Order.

However, the case went through on the second hearing because the landlord argued that Rules of Agency applied.

Howard said: “The judge accepted this interpretation and argument on that occasion, but I suspect that, if this case had gone before Appeal Court judges, they could find that the agent’s name and address is not sufficient.

“Many agents cannot see why this is necessary when they are fully managing the property, but it would appear that, if the regulations do indeed state that the landlord’s details should be on any Prescribed Information, then that’s what must be done to avoid confusion or misinterpretation.”

She advises agents: “Just to be on the safe side, you should always include the full name, address, telephone number and any email address or fax contact details for the landlord together with contact details for the agent if applicable.”

by Mark Alexander

23:00 PM, 22nd July 2013, About 8 years ago

OK, I'm back home now and I have found the answer I was looking for which was posted by DC on another thread here on Property118

"Statutory Instrument 2007 No. 797 is the relevant reference point for Prescribed Information, however it MUST be read in conjunction with the Housing Act 2004 Sections 212 – 215, which deals with Tenancy Deposit Schemes, and the Localism Act 2011. Many people do not cross-refer all relevant legislation when giving their opinions, which only serves to complicate what is already a complex subject.

The correct procedure is that which is set out by the scheme that you use, be it custodial or insurance. The schemes are administered by four different bodies each of which have been legally authorised by the government. None of these schemes are administered identically so you must comply with the procedures set out by the one that you chose.

Contrary to what has already been said in this thread, if your chosen scheme states that all of the landlord details need to be on the prescribed information form then that is a legal requirement. Conversely if your scheme states that if protected under an agent, then landlord’s details are not legally required.

This is also the case concerning the signing of the certificate, which again the scheme administrator will stipulate if an agent can sign in lieu of a landlord.

Sec 212 (9) of Chapter 4 the Housing Act 2004, clearly states;

In this Chapter—
(a) references to a landlord or landlords in relation to any shorthold tenancy or tenancies include references to a person or persons acting on his or their behalf in relation to the tenancy or tenancies.."

by

23:14 PM, 22nd July 2013, About 8 years ago

Reply to the comment left by "Mark Alexander" at "22/07/2013 - 19:13":

Hi Mark,

The legislation that you are looking for is Section 48 of the Landlord and Tenant Act 1987, which provides that any written demand for rent or other sums payable to the landlord under the tenancy must contain the landlord's registration address.

Rob I would suggest a written request to the agent siting the above act. If they fail to comply, report them to Trading Standards who have wide powers of enforcement and use their non compliance as evidence of unreasonable behaviour if they decide to pursue the matter through the courts (the Judge may hold them liable for costs of bringing the action).

In my experience, landlords who have a hands off approach and use agents to manage their property are generally averse to dealing with tenants issues but it's certainly worth trying to contact the Landlord to make them aware of the situation.

Hope that helps.

by Eleanor White

14:10 PM, 23rd July 2013, About 8 years ago

The letting agent must provide you with the landlord's details within a certain time frame if you ask for it (I think it's 21 days). There is law in place that covers this.

Regarding the deposit protection, I think previously it was only necessary for the agent's details to be provided but a recent court case found in favour of the tenants who argued that the deposit wasn't legally protected as their landlord's details weren't given, and so now agents are (or should be) adopting a belt and braces approach, and listing both theirs and their landlord's details.

As others have mentioned, you should definitely try to contact the landlord. We had a recent case where a letting agent served notice on the tenants because the landlord said that they no longer wanted a managed service. The agents took the attitude that they were their tenants, and they could no longer live there if the let wasn't managed! Crazy situation!

by Don Holmes

13:20 PM, 27th July 2013, About 8 years ago

Couple of points on this issue and I will admit immediately to being a "Reputable Agent" who looks forward to licencing so we can clean up our act, But having been in the job form many years, I also understand there is often 2 sides to a story. However
Industry observer is spot on of course
Sec21 can be issued at the point of signing the tenancy this is reasonable practice as it has no shelf life, BUT it is notice not to renew the AST so if there is no AST it is nonsense simple. you cant renew something that doesn't exist, In relation to service I offer this understanding of the LAW Section 48 of the Landlord and Tenant Act 1987 requires that a tenant is provided with an address where notices may be served on the landlord. This address must be in England and Wales and can be the name and address of a managing agent.
If it is the MA and a written request for the Landlords name is received it must be provided within 21 days or an offence is committed.
As the courts see it, rent can not be demanded from a tenant unless they have an name and address to which they can pay the rent. Therefore, a landlord can not demand rent from the tenant if they have failed to issue the notice of address. Nor can action for possession due to rent arrears be made.

I noted something else in this original submission maybe overlooked in the thread and that is the deposit protection information "proscribed information" being received later on after the Sec 21 affair started, although no time scale stated, but the PI must be provided within 30 days of the agent or LL receiving the deposit if this was not the case there is a further issue here of legal compliance? leaving this agent with his derriere well exposed.
If you need any assistance I am happy to help

by

16:18 PM, 27th July 2013, About 8 years ago

My understanding and I cannot remember why; is that a S21 should ONLY be issued once the DPC and PI has been issued and one has confirmation that they have been received.
There is NOTHING wrong in handing over the DPC etc and then a minute later handing over a S21.
It should NOT be done the other way round!
Therefore timing need to be acknowledged by signature.

by Michael Barnes

13:54 PM, 31st July 2013, About 8 years ago

Reply to the comment left by "Don Holmes" at "27/07/2013 - 13:20":

You say that "Section 48 of the Landlord and Tenant Act 1987 requires that a tenant is provided with an address where notices may be served on the landlord".

You go on to state "If ... a written request for the Landlords name is received it must be provided within 21 days or an offence is committed".

What is the legal basis for this second statement?
It does not appear to be section 48 of the Landlord and Tenant Act 1987; that only seems to require that the request be passed to the landlord, not that the information must be provided.

It also appears that Mark is correct in stating that Sec 212 (9) of Chapter 4 the Housing Act 2004 allows an agent to be substituted for the Landlord.

by andrew townshend

16:27 PM, 31st July 2013, About 8 years ago

i do not know the legal answer to this. however i manage some of my properties myself, others are managed by agents. i meet all my tenants myself
, they all know who i am, & that i am 100% approachable, this makes for much better landlord/tenant relations, which makes life much easier in the long run.

by Romain Garcin

16:44 PM, 9th August 2013, About 8 years ago

Reply to the comment left by "Michael Barnes " at "31/07/2013 - 13:54":

s.1 of the Landlord and Tenant Act 1985.

"(1)If the tenant of premises occupied as a dwelling makes a written request for the landlord’s name and address to—
(a)any person who demands, or the last person who received, rent payable under the tenancy, or
(b)any other person for the time being acting as agent for the landlord, in relation to the tenancy,
that person shall supply the tenant with a written statement of the landlord’s name and address within the period of 21 days beginning with the day on which he receives the request.
"


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