Here is a Blog Clinic question from Michael who is a tenant:
Which tenancy agreement dilemma?
I took out a tenancy with a private landlord in 1989 (if my memory serves me right perhaps an AST) though I am very sure no s20 was served.
I then moved to another dwelling in the same housing complex owned by the same landlord in 1994. I signed a new contract in May 1993, no s20 served, but due other circumstances did not move into the property until Jan of 1994. I was given an s20 in January but not sure when.
To make matters more complicated, I have only just noticed that the signed contract for the new property has incorrectly the old house number ( both properties have the same address) but the served s20 has the correct house number and address.
Which tenancy do I have, Is the current contract void, Do I retain the old contract from the first address and is this an assured tenancy due to no s20 being served in 1989?
Can anyone help?
It is really important to know WHEN in 1989 you moved in. If it was before 15 January then you will have a protected tenancy.
I suspect however that it was after this. In which case you will probably have an assured tenancy (AT), which carries long term security of tenure.
If your landlord wants to prove otherwise (for example if he wants to evict you under section 21) he will need to PROVE that a section 20 notice was given to you, before the tenancy was signed by you. Preferably the day before, as if it was given to you the same day as the tenancy was signed, he will have a hard job (after this period of time) proving that it was given to you before you signed.
Any other section 20 notices served later are irrelevant. If no section 20 notice was given to you before the first tenancy, then you have an AT. This cannot be rectified by the landlord giving you a section 20 notice at a later date.
If you have moved to different premises owned by the same landlord, then your right to an AT will have gone with you. Your tenancy will be for the property you live in. If the document you signed has the wrong address in it, this is clearly a mistake. Alternatively a tenancy can be created with no written document, which may be the case here if the written document is not the correct one.
So my view is that you have an assured tenancy of the property you live in. Unless your landlord is able to prove that he served a section 20 notice on you before you signed the first tenancy agreement.
What does anyone else think?
I agree with that but I have recently had a case of an old style AST where neither landlord nor tenant were aware of or could produce, an S20 notice, although the tenancy agreement did mention one on it. I tried to defend in court on the basis that the S20 could not be produced but the DJ took the view that because the agreement mentioned it’s existence we had to presume there was one.
And as you say, the date is important too. I once had a tenant who had been gien a written AST on the 11th of January 1989 (You could buy the documents at that time) just 4 days before the law change. He tried to evict her a year later but we argued she was a protected tenant. When he realised what he was up against he asked to borrow her agreement to make a copy. When he returned it to her he had changed the 11th in the 19th, but the idiot had used a different coloured pen to make the change. Needless to say it was spotted by the judge
Hmm. I think the decision in your first case would have been appealable. The fact that it mentions a s20 notice in the tenancy agreement does not mean that it was actually served when it should have been.
It would also be useful to know if the landlord has GOT to provide a copy of the s20 notice as evidence (which has always been my impression) or whether this sort of more oblique evidence will do.
That was my view too but the tenant wasnt as bothered by it as I was.
And as you say, date of service is also important. When they were first around it was very common for landlords to issue the section 20 (thats if we ever saw one at all) a couple of days later, which invalidated it
From 1989, when I started in the housing law end of things rather than night shelter stuff, until around 1993, all we kept seeing were these written ASTs but no S20, because landlords continually failed to learn the rules, so from a housing advice perspective arguing people into the greater security of an Assured Tenancy was like shooting fish in a barrel. When you asked your client for their S20 you knew the answer before they replied with a blank look. Thats why the government abandoned S20s and made the AST the default tenancy in 1997.
These days, when I encounter protected tenancies I most commonly find that in the intervening years the tenants have lost track of where they were, the property has changed ownership several times and a variety of assured and AST agreements have been signed. Landlords get quite angry when I track the tenancy back and give them the bad news
Ben,
I find it astonishing that the judge in the case you mentioned felt there must have been an s20 served as one was mentioned in the tenancy agreement, even though neither party, landlord or tenant could produce one or remember one. It’s like saying Jesus exists because he is mentioned in the bible.
If landlords back in 1989 to 1997 had known judges would make such judgements in the future like this, then they wouldn’t have needed to produced s20’s at all, just write one existed into the contract. Landlords have got enough power as it is. It sounded as if they could write their own legislation!
Haha michael? Welcome to the mad and surreal world of the DJ. I have to stand in front of them between 5 and 10 times a month and you can never double guess where they are gonna go.
Their take on housing law can sometimes be eccentric at best. Having said that I have to say I have a lot of respect for them. I genuinely find them to be helpful and borrower/tenant friendly. Its just that now and again they come up with a decision that comes out of the blue.
I once presented a case on the basis of an absence of an S20 notice, arguing that it was assured by default and the judge slapped me down saying it wasnt an assured tenancy, but an assured tenancy for a fixed term!?!?!?!?!?!
That particular judge is about to retire and is unique in my experience in being the only judge with a blog dedicated to bringing her down as a tyrant and despot, created by disgrunteld litigants in person. I carry many a scar!!!!!!
You can get a normally great judge in a foul mood who makes a decision that they wouldnt ordinarily make. County court cases are always a lottery