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Zacharias

Section 21 Notice Argument Before Court

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hello All

I have been reading this great board for some time and time has come for me to ask for experts' help.

I got informed recently that I was served section 21 notice 2 months ago and I am to move out immediately.

I never received any notice and of course wasn't going anywhere, especially with 2 small children, one of whom has his school round the corner, if I moved as they wanted he would probably lose some of the education which I believe is against the law.

The Landlord has now filed the court papers under Accelerated Procedure, with written affidavit of the Agent saying that the Section 21 notice was delivered to the door by himself by hand. Since then he never contacted me to make sure I received it and then suddenly they call me and tell to get the hell out!

I am going to tell the Court that I never received the notice but honestly I don't know what to expect as the Agent is adamant that the notice was slipped through the door. I also got a copy of it on the day of "expiry" - badly written nearly illegible xerox copy of the original document which indeed is dated two months ago. could it be that someone just threw it away thinking it's some rubbish or an advert.

What would you guys make of it?

regards

Zacharias

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hello All

I have been reading this great board for some time and time has come for me to ask for experts' help.

I got informed recently that I was served section 21 notice 2 months ago and I am to move out immediately.

I never received any notice and of course wasn't going anywhere, especially with 2 small children, one of whom has his school round the corner, if I moved as they wanted he would probably lose some of the education which I believe is against the law.

The Landlord has now filed the court papers under Accelerated Procedure, with written affidavit of the Agent saying that the Section 21 notice was delivered to the door by himself by hand. Since then he never contacted me to make sure I received it and then suddenly they call me and tell to get the hell out!

I am going to tell the Court that I never received the notice but honestly I don't know what to expect as the Agent is adamant that the notice was slipped through the door. I also got a copy of it on the day of "expiry" - badly written nearly illegible xerox copy of the original document which indeed is dated two months ago. could it be that someone just threw it away thinking it's some rubbish or an advert.

What would you guys make of it?

I'd be talking to Shelter, Citizen's Advice and a suitable lawyer (if I had the cash) right now. Don't walk into the court unprepared whatever you do.

Edited by pharm

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I may be wrong but I thought they would need to show the court a receipt for acceptance of delivery to prove it had been sent and signed for. This seems a bit strange to me - if they had sent it registered post then there would be no argument.

Thank you for response :)

the only thing they have is this Agent's affidavit which is allegedly taken under oath etc - is this a proof of actual delivery? Shouldn't he have made sure that I as the tenant named in the agreement received it? I think that maybe my kids picked it up and used for making paper aeroplanes or something like this? I don't want to call the Agent a liar yet

Edited by Zacharias

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The agent is proof, whether falsified or not. Remember that you need to file your defence within 14 days else the repossession order will be made. Better for you to look for alternative accommodation rather than waste effort on a process which will favour the landlord so long as the correct procedure has been followed. You can delay the hearings for 6 weeks if you ask to postpone the possession because of serious hardship. The CAB can advise you but this is only a gap , you will still have to move out

I may be wrong but I thought they would need to show the court a receipt for acceptance of delivery to prove it had been sent and signed for. This seems a bit strange to me - if they had sent it registered post then there would be no argument.

Edited by fallingbuzzard

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No, whether you received the piece of paper or not isn't relevant.

Thank you for response :)

the only thing they have is this Agent's affidavit which is allegedly taken under oath etc - is this a proof of actual delivery? Shouldn't he have made sure that I as the tenant named in the agreement received it? I think that maybe my kids picked it up and used for making paper aeroplanes or something like this? I don't want to call the Agent a liar yet

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No, whether you received the piece of paper or not isn't relevant.

Now that is scary. I am not saying fallingbuzzard is wrong (I have no experience in these things) ... but I am saying this is totally scary!

That someone could exercise a contractually binding action within which I am a part without any details of the implications (rights or duty) upon me actually delivered to me is shocking, to say the least.

Surely reasonable (meaning: proportional) actions would be expected of the agent ... ?

Aidanapword

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Just to clarify, the agent only had to serve the document to you at the premises, not you personally. Check the service date, because if it is just put through the letter box then it is deemed served the following day - maybe not a full 2 months?

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How much time can the whole court proceedings take? I also wonder if I am to be liable for the costs if in my belief I have never been informed about the landlord giving me the notice and then when I found out I informed the Agent about being in the process of arranging my next house, but the next day the court papers were filed, I believe it to be a frivolous claim as I have taken steps to move out so there is no need to evict me. I should be out of this house in a month's time

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Just to clarify, the agent only had to serve the document to you at the premises, not you personally. Check the service date, because if it is just put through the letter box then it is deemed served the following day - maybe not a full 2 months?

Actually if its served before 4.30 on a business day its deemed served that day.

If its served after 4.30 on a business day, it deemed served the next business day (so one to watch on fridays and/or bank holidays!)

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The arguement here seems to be whether the notice was served or not. It would not be unknown to find that the agent has forgotten to do this then lied to cover his own back.

Ultimately it comes down to whether the court believes the LA or not.

Although not required by law I would expect a professional LA to deliver a typewritten notice and to follow up on this at least once seeking confirmation of a receipt and again closer to the date of expiry to confirm checkout procedures.

The absence of the above will undermine the LA's credibility and based on what you have said I would not accept that a valid s.21 notice was served.

But I am not a lawyer and I would recommend seeking advice from someone who is.

Edit: and for god's sake don't tell the court that your kids might have turned it into a paper aeroplance - you are a highly organised person who would never overlook an important legal document.

Edited by Goat

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Is the S21 regarded as being given notice?

I would imagine that a court would see this as suspect since in the 2 months between allegedly having a hand written note delivered there has been no contact from the agent to discuss the move out or inventory check. More than a little fishy imo.

Goat is right though, 100%, do not even look like you could accept the possibility of the letter actually having been delivered let alone shoot yourself in the foot by offering possibilities. Good luck.

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I think that this is suspicious and I think that the judge will as well. My court experience has been in the small claims and they have been very aware of Landlord and Agent tricks.

If they had served a S21 then they would have contacted you about the checkout and where to leave the keys ( as a previous poster said)

My local Tenants Adviser (see your local Council) was great when I was served a s21. They were aware that in my area and even under the accelerated process it was 6-8 weeks before a case came to court. I helped my neighbours when they were served and couldn't move out on time. We wrote a letter advising the LL that they would be out on the (insert date) and that it would be well before the case went to court.

It does sound fishy - the whole thing you mentioned and the court will know this.

Fight this by registering the defense that not only did you not get the S21 but that during the two months the agent did not contact you once to see if received or to arrange for the keys to be returned. Say that you are looking for a new home and will be out ASAP. Make clear that you respect the LL's right to possession and you have done nothing to stand in his way.

Suggest that it is a mistake rather then perjury

Good luck. Also have a think about why they are acting like this.

Edited by Flopsy

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quite,I wouldn't say that the LA's affidavit is the deciding factor.Anyone who's dealt with EA's/LA's knows whata bunch of deceitful liars they are on the whole(there are exceptions of course).The court will look at the facts in their entirety and make a decision based entirely on whether the magistrate is an LL or not.

Fixed.

Edited by Tiger Woods?

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hello All

I have been reading this great board for some time and time has come for me to ask for experts' help.

I got informed recently that I was served section 21 notice 2 months ago and I am to move out immediately.

I never received any notice and of course wasn't going anywhere, especially with 2 small children, one of whom has his school round the corner, if I moved as they wanted he would probably lose some of the education which I believe is against the law.

The Landlord has now filed the court papers under Accelerated Procedure, with written affidavit of the Agent saying that the Section 21 notice was delivered to the door by himself by hand. Since then he never contacted me to make sure I received it and then suddenly they call me and tell to get the hell out!

I am going to tell the Court that I never received the notice but honestly I don't know what to expect as the Agent is adamant that the notice was slipped through the door. I also got a copy of it on the day of "expiry" - badly written nearly illegible xerox copy of the original document which indeed is dated two months ago. could it be that someone just threw it away thinking it's some rubbish or an advert.

What would you guys make of it?

regards

Zacharias

Proper practice if delivering a notice by hand is to get someone else to act as witness. If your agent doesn't have a witness then its his word against yours. The computer test is possible but I would be surprised if they would go that route. The judge has discretion to award extra time in extenuating circumstances for you to find somewhere else (if I remember correctly) even if the S21 was served correctly. As other posters have urged, don't panic, stay calm, get 1/2 hr free consultation with solicitor and CAB arranged immediately. Also make sure you keep rental payments up and don't retaliate (as tempting as it is!) in any way.

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When it comes to the service of notices the law apportions the risk to the recipient. This means that the person serving the notice only has to prove that the notice was correctly served, not that the recipient received it. ( See the case of Newborough v. Jones where a notice which was slipped under the door (there was no letter box) but went under the lino was deemed to have been served.) Accordingly any evidence the OP gives to the effect that he did not receive the notice will not help. He needs to prove that the agent did not serve it. The starting point is that the court will give considerable weight to evidence given by affidavit or under oath in court. Something significant is needed to rebut the evidence. Simply suggesting that one would have expected the agent to follow the notice up in some way is not good enough. There may be something in the affidavit that can be picked up on, for example the agent says he posted the notice through the letter box but the door has no letter box. Perhaps the agent said he parked the car outside the property where parking is restricted or difficult. If the notice is dated a Sunday or bank holiday it can be asked if he normally works on those days. If the OP is really lucky he may learn that the agent was away when the notice was "served". All perhaps clutching at straws a bit, but you never know your luck.

Apart from the above, it is worth looking closely at the notice to see if it is defective.

Of course the OP needs to bear in mind that at best he is only buying time if it is shown that the notice was not correctly served or was defective. The agent will make sure that the next notice is in due form and correctly served.

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When it comes to the service of notices the law apportions the risk to the recipient. This means that the person serving the notice only has to prove that the notice was correctly served, not that the recipient received it. ( See the case of Newborough v. Jones where a notice which was slipped under the door (there was no letter box) but went under the lino was deemed to have been served.) Accordingly any evidence the OP gives to the effect that he did not receive the notice will not help. He needs to prove that the agent did not serve it. The starting point is that the court will give considerable weight to evidence given by affidavit or under oath in court. Something significant is needed to rebut the evidence. Simply suggesting that one would have expected the agent to follow the notice up in some way is not good enough.

As I understand it the decision has to be made on a balance of probabilites. The agents affidavit is evidence that the notice was served, the fact that the tennant claims not to have received it is evidence that it was not served.

The question then is which of the following is more likely:

  1. That the tennant has lost the notice or is lying.

  2. That the agent is lying.

Initally I suspect the court would favour the agent over the tennant however it is at this point that other matters can be considered.

The fact that the notice was badly handwritten rather than typed and the fact that there was no attempt to follow up the notice makes the agent look at best disorganised and unprofessional and at worst dishonest.

Which in my view than makes his evidence sufficiently unreliable that the court would be entitled to conclude that on the balance of probabilites that the notice was not served.

But as I say I am not a lawyer.

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How the heck can you proove he did not serve it?

Bizarre, should be the other way round!

Obviously the person serving the notice must prove he served it. However, evidence by the recipient that he did not receive the notice is not proof that the notice was not served.

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As I understand it the decision has to be made on a balance of probabilites.

That is how the facts in a civil case are decided.

The agents affidavit is evidence that the notice was served,

Correct

the fact that the tennant claims not to have received it is evidence that it was not served.

No. It is only evidence that the notice was not received. The tenant needs to show that the agent could not have served the notice or introduce some doubt.

The question then is which of the following is more likely:
  1. That the tennant has lost the notice or is lying.

  2. That the agent is lying.

It could of course equally be the case that both are telling the truth. If the judge finds that he must find that the notice was served.

Initally I suspect the court would favour the agent over the tennant however it is at this point that other matters can be considered.

Correct - see above.

The fact that the notice was badly handwritten rather than typed and the fact that there was no attempt to follow up the notice makes the agent look at best disorganised and unprofessional and at worst dishonest.

Not really that relevant, though that may cast doubt in the judge's mind. I think something stronger is needed. Something like the agent's secretary coming forward and admitting she saw the agent write the notice out last Thursday.

Which in my view than makes his evidence sufficiently unreliable that the court would be entitled to conclude that on the balance of probabilites that the notice was not served.

No litigation is certain.

But as I say I am not a lawyer.

I am.

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to the OP,I generally find it best to ignore most things Damocles comes out with.dragging one precedent out pertaining to an agricultural tenancy and then presuming it applies to a residential tenancy doesn't necessarily follow.as ever he presents a half picture that favours the LL's.

Don't be afraid of these b@stards.

The case was about notices. The fact that the tenancy was agricultural is neither here nor there.

How about this case then? http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2002/573.html&query=newborough+and+v+and+jones&method=boolean

I do not pitch my answers to suit landlords. I say what I believe to be the law. Nothing in what I said above favours landlords. I said that when it comes to the service of notices the law apportions the risk to the recipient. Landlords can be recipients of notices.

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Quote from the above case:

Notice is not the same as knowledge. But the evident purpose of requiring notice to be given to a particular person is that the contents of the notice should be communicated to, and become known by, that person. Nevertheless there is no doubt that both statutory and contractual provisions may lead to the position that a valid notice has been given even though the intended recipient does not know of the notice (and is not at fault in not knowing about it).

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As I understand it the decision has to be made on a balance of probabilites. The agents affidavit is evidence that the notice was served, the fact that the tennant claims not to have received it is evidence that it was not served.

The question then is which of the following is more likely:

  1. That the tennant has lost the notice or is lying.

  2. That the agent is lying.

Initally I suspect the court would favour the agent over the tennant however it is at this point that other matters can be considered.

This will depend upon how many of the notices the agent has to serve.

The court will take into account the fact that it is easy to misremember one act amongst 1000 similar acts, but it is more difficult to misremember a unique act.

tim

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All these arguments about whether the notice was served or not are in the end irrelevant. The landlord has the right to regain possession of his property. I concur with the arguments put forward by Damocles.

Your arguments may delay the inevitable for a short period, a few months maybe, but eventually the Court will give the landlord possession and you will have to leave.

You should be spending your energy on finding somewhere else to live.

Perhaps you should negotiate directly with the Landlord, there is a reason why he wants possession of his property. Most people do not want to undergo the stressful and inconvenient court process if it can be avoided. Even in this case where the eventual outcome is certain, whether your arguments delay the process or not, the landlord will incur costs that may not be recoverable.

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Not really that relevant, though that may cast doubt in the judge's mind. I think something stronger is needed. Something like the agent's secretary coming forward and admitting she saw the agent write the notice out last Thursday.

Would that necessarily have any effect?

Sounds a little bit like the case of a district judge's former receptionist coming out with a random comment that it must be hard for him to preside over two long-running cases when the plaintiff was so well known to him. Led to the judge admitting that yes, one of the plaintiffs had been his client in private practice a few years earlier[1], and the other was his personal friend. But the court of appeal ruled that it was all just fine: no conflict of interest.

[1] It is believed, but not proven, that he acted for the plaintiff in a matter closely related to the court cases. The possibility that he acted only in unrelated matters seems remote.

[edit - tyop]

Edited by porca misèria

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