When a landlord wishes to evict a tenant from his property, he can do so by serving a notice under section 21 of the Housing Act 1988. However, the landlord may be prevented from serving a section 21 notice if he hasn’t correctly secured the tenant’s deposit in a Tenancy Deposit Scheme (as discussed in our earlier blog here) or provided the tenant with specific prescribed information.

The latter is the issue that arose in the recent case of Gardner v McCusker. The Claimant let a property for a 6 months fixed term to the Defendant, who paid a £600 initial deposit. The Claimant secured the deposit and provided the Defendant with the relevant prescribed information under section 213 of the Housing Act 2004.

In 2010 the fixed term tenancy expired, leading to a statutory periodic tenancy. The landlord then served a section 21 notice in March 2013 requiring the tenants to vacate the property, however the tenant argued that the notice was not valid as the landlord had not provided the tenant with the relevant prescribed information upon the commencement of the new statutory periodic tenancy.

The landlord, meanwhile, claimed that the fixed term tenancy had rolled over into the statutory periodic tenancy, therefore the prescribed information would also ‘roll over’ and there would be no need for it to be provided again.

The court held that the statutory periodic tenancy was technically a new tenancy and therefore the landlord had a duty to provide the tenant with the prescribed information again. This rendered the section 21 notice invalid, and the court ordered the landlord to pay the tenant damages of twice the amount of deposit paid. This case supports the seminal decision of Superstrike Ltd v Rodrigues and means that a landlord will not be able to serve a section 21 notice if he has not provided the tenant with the relevant prescribed information within 30 days of the expiry of the fixed term.

When attempting to serve a section 21 notice it is always sensible to take the advice of a solicitor. Our team of lawyers here at Aston Bond are experienced in dealing with section 21 notices. Come down to our offices at Windsor Crown House, Slough, SL1 2DX today for some advice or alternatively give us a call on 01753 486 777.

Aston Bond are holding a Landlord and Tenant seminar in late September, if you wish to attend please send your details to ndarby@astonbond.co.uk and we’ll be in contact. 

Amarjit Atwal, Paralegal

Section 213 of the Housing Act 2004 requires landlords to protect their tenant’s deposit in an authorised Tenancy Deposit Scheme (“TDS”) within 30 days of receiving it. Failure to do so can cause great difficulties when the landlord wishes to terminate an assured shorthold tenancy and also lead to fines ranging from one to three times the amount of the deposit.

Section 21 of the Housing Act 1988 allows for a notice to be served upon a tenant when the landlord requires possession of the property. Unlike a section 8 notice which is served upon a tenant when he or she has breached the terms of the contract, section 21 notices can be served when the landlord wishes the tenant to vacate the property, either during a periodic tenancy or at the end of a tenancy.

However, section 215(1) of the Housing Act 2004 prevents landlords from serving a section 21 notice if they have not secured their tenant’s deposit in a TDS. The Act also prevents landlords from securing the deposit in a TDS at a later date in a bid to serve a valid section 21 notice.

One way of getting around this problem is to return the deposit to the tenant before issuing the section 21 notice, so that the landlord is no longer in possession of it. The Housing Acts however, do not define the meaning of ‘returning’ money, and this becomes tricky when the tenant refuses to accept the deposit.

In situations like this it is best to avoid methods of payment such as cheques which can be rejected by the tenants. In order to ensure the tenant is in receipt of cleared funds at the time of serving the section 21 notice, it may be prudent to return the sum in cash at the time of service, or use other instantaneous methods of payment such as a bank transfer.

Our team of solicitors at Aston Bond have experience in advising clients wishing to serve a section 21 notice in the absence of securing their tenant’s deposit in a secured TDS. If you require assistance with serving a section 21 notice, call us today on 01753 486 777.

Aston Bond are holding a Landlord and Tenant seminar in late September, if you wish to attend please send your details to ndarby@astonbond.co.uk and we’ll be in contact. 

Amarjit Atwal, Paralegal

The case of Piggot v Slaven (2009) marked a change in the way the law viewed advance rent. Prior to this case, any advance rent received by a landlord would not amount to a deposit on the property. The rent was instead used as payment towards the monthly rent under the lease, and the tenant would continue to make payments once this advance rent had run out. However, in this case the Grimsby County Court held that asking a tenant to pay money that would count as the final two months’ rent under the tenancy would effectively amount to a deposit.

This case has since been contradicted in the form of the Court of Appeal’s ruling in Johnson v Old [2013] EWCA Civ 415. In this case a tenant paid 6 months’ rent upfront for a 6 month tenancy. When her landlord wished to regain possession of the property and issued her with a section 21 notice under the Housing Act 1988, the tenant argued that the 6 months’ rent she had paid amounted to a deposit that had not been secured and therefore her landlord could not serve a valid section 21 notice on her. It was held in this case that the 6 months’ rent that had been paid upfront could not possibly constitute a deposit because the purpose for which it had been paid was for the rent of the property. Had the tenant been asked to pay a month’s rent on top of her previous payments, she would have questioned why she had to pay more when she had already paid all of her rent.

This is a contrast to the case of Piggot v Slaven where the amount held was for the final two months’ rent and the tenants had continued to pay rent during the intervening period. The amount they had given up front could therefore constitute a deposit.

The decision in Johnson v Old means that it is reasonable for landlords to request rent in advance and this will not necessarily constitute a deposit if the intention for the payment is purely to pay rent that the tenant would not expect to pay again. To count as a deposit, the payment must be made to discharge the tenant of any liability arising under or in connection with the tenancy. Alternatively, it must be paid as a security for the tenant’s performance of his obligations.

Aston  Bond are holding a Landlord and Tenant Seminar on 25th September, for full details please email ndarby@astonbond.co.uk. 

Amarjit Atwal, Paralegal

aatwal@astonbond.co.uk

When we receive correspondence entitled ‘Notice of Court Proceedings’ we often feel shocked, worried and distressed. ‘What does this mean?’ and ‘how will it impact me?’ we ask. If you find yourself in a situation like this, our litigation solicitors are here to guide you through the entire process. Come down to our offices at Windsor Crown House, Slough, SL1 2DX to chat to one of our friendly solicitors. Meanwhile here is a quick guide as to what steps need to be taken before court proceedings.

Life is full of ups and downs and often we find ourselves stuck in situations that are far from ideal. Whether you’re behind on loan repayments or you haven’t paid a penalty, you may receive a notice of court proceedings from your creditors threatening legal action if the fine isn’t paid.

The first step is to try and achieve a resolution without having to go to court. The Practice Direction on Pre-Action Conduct (PDPAC) of the Civil Procedure Rules explains the need to try to mediate prior to going to court, and any sanctions the court can impose for failing to do so. For example, failure to comply with the pre-action protocols can be taken into account by the courts when making orders as to costs and case management directions.

A claimant’s letter before claim should give concise details about the claim, including but not limited to:

• Their full name and address.
• Why the defendant is liable.
• A clear summary of the facts on which the claim is based.
• What the claimant wants from the defendant.
• A list of the essential documents that the claimant intends to rely on.

If a defendant cannot provide a full written response to the claimant’s letter before claim within 14 days of its receipt, he must instead provide an acknowledgment of letter before claim within the 14 day timeframe, which should include but is not limited to:

• Should state the date by which a full written response will be provided.
• If this date is longer than that set out in the letter before claim, the defendant should give reasons why a longer period is required.
• May request further information to enable the defendant to produce a full written response.
• Should, where the defendant cannot provide a full written response within 14 days of receipt of the letter before claim because they require advice, state:

o    that the defendant is seeking advice;

o    from whom it is sought; and

o    when it is expected to be received, to allow a full response to be given.

The claimant must allow a reasonable time (up to 14 days) for this advice to be obtained.

The defendant’s full response should either:

• Accept the claim in whole or in part.
• State that the claim is not accepted.

If the claim is disputed in whole or in part, the defendant’s response should:

• Give reasons why the claim is not accepted, identifying:

 

o    which parts are accepted and which are disputed; and

o    the basis of the dispute.

 

• State whether the defendant intends to make a counterclaim and, if so, give details of the claim equivalent to the claimant’s letter before claim.
• State whether the defendant alleges that the claimant was wholly or partly to blame for the dispute and give details.
• State whether the defendant agrees to the claimant’s ADR proposals, propose an alternative, or give reasons why ADR is inappropriate.
• List the essential documents on which the defendant intends to rely.
• Enclose copies of documents requested by the claimant or explain why they are not included.
• Identify and request copies of any further documentation.

The claimant should supply copies of documents requested by the defendant within as short a time as practicable or explain in writing why the documents are not provided.