Here is a question to the blog clinic fast track from Julie (not her real name) who is a landlord.
I served a Section 21 notice to my tenant in November 2015, giving him just over 2 months notice to vacate in January 2016. The reason being that I wanted to take possession of the property. He has a 12 month AST (starting in March 2015), with a 6 month break clause, his deposit is with a tenancy deposit scheme.
He ignored this notice, refused to communicate with the property manager and informed the property manager on 2 days after he was due to leave, via email, that he would move at the end of the 12 month AST. He further informed me that his legal advisor told him the notice is invalid because it is addressed from my residential address in Europe. I do not believe this to be correct – ie I believe the notice to have been valid as it was delivered through the UK postal service.
I have 2 signed agreements from him from January 2016:
– one stating that I acknowledged his notice that he would vacate on the date he informed the property manager of, which he countersigned his agreement.
– one requesting reasonable access and better communication from him in order to carry out repairs to the property, as he has had a tendency to go silent for weeks. He also agreed and countersigned this.To compound the issue, he also has rental arrears, keeping just within the 2 month time limit for when I could serve a Section 8. The property manager sent him a formal request via email to resolve the rental arrears and make arrangements for his exit on the agreed date. So far, he has failed to respond. They have also left voicemails and texts for him.
I sent him a further email and iMessage to ask his availability to get 1 remaining repair done, to which he has so far not responded. Previously, he has sighted phone, computer and email issues as causing delays. As he uses an iPhone, as I do, I know my messages are being delivered and I also know from him that he receives email on his phone.
I would like to ask advice for what I can do next – can I proceed to apply for an eviction, and if I can also inform him that I will use a very old law, Section 18 of the Distress for Rent Act 1737, to claim double rent from 9 March as “mesne profits” if he does not vacate as he agreed.
My property manager is informing him and his guarantor about the arrears seeking the compensation and I will follow this up with them before contacting the tenant again. Incidentally, I would not normally be involved in any communication with the tenant directly but the relationship between tenant and property manager has deteriorated so far that I felt I needed to approach him directly to have a more constructive dialogue.
Answer
I think your main question is whether your section 21 notice is invalidated by the landlord’s address being out outside England and Wales. Lets take a look at this first.
The section 21 notice – landlords address
I can’t see how your tenant’s legal advisor can be correct here. Section 21 notices must comply with the requirements of section 21 of the Housing Act 1988 and the courts are very strict on this. However, I cannot see anywhere in the section a requirement that the notice must give an address for the landlord which is in England or Wales.
There are situations where the landlord’s address is significant. For example rent is not due unless a landlord gives an address for service of documents in England / Wales. However in most cases this is complied with, for landlords living abroad, by their letting agents’ address (which will be in this country) being on the tenancy agreement.
As you have been using a letting agent, I would be amazed if they did not use a tenancy agreement which covered this point. Even if they did not – this will only affect the validity of a section 8 notice claiming rent arrears.
It cannot have any effect on a section 21 notice – which is not related to the rent situation at all.
So, provided that in all other respects the notice is correctly drafted (for example see below), you should be all right to issue proceedings.
Incidentally I think you are very fortunate that the tenant has obviously acknowledged receipt of the section 21 notice. Had he denied this, you would be in difficulties as it is not really possible to prove service of a notice which has been sent via the normal post (i.e. proof of posting is not the same as proof of receipt by the tenant).
The break clause
Its probably worth saying that if there is a break clause in your tenancy agreement
- It must be usable by both landlords AND tenants or it will be invalid and
- You need to do EXACTLY what it says, to bring it into effect.
Generally though, if the clause just requires not less than two months written notice, then service of a section 21 notice will be taken to comply with this (indeed I think there is some case law on the point). Landlords seeking to rely on a break clause though should take a look at the clause in their tenancy agreement to see what it says.
However in your case, you say the fixed term will end sometime in March which almost upon us. So this is not really relevant. Unless the section 21 notice was not sufficient to break the tenancy then if the expiry date given was before the end of the fixed term, and did not contain a suitable saving clause, you will have to re-serve it.
The rent arrears / double rent entitlement
There is very little you can do to force your tenant to pay rent. It is a common ploy with tenants to keep the arrears under the two months level so landlords cannot use the rent arrears ground for eviction.
So far as the double rent entitlement under the old Distress for Rent Act is concerned – my understanding is that this is ONLY available if the tenant has served a tenant’s notice to quit and then refused to move out. I don’t think countersigning a landlords notice confirming he will move out at a specific time will satisfy the act – as it will not be a tenants notice to quit.
However without seeking the paperwork it is hard to say. I wrote about the Distress for Rent Act here.
Help with eviction of tenants
You may already have solicitors in mind for your eviction work, but if not you can see the options I offer here.
On the Distress for Rents Act one other point I think is crucial is that the tenant’s refusal to leave causes the Landlord some distress/loss, such as having lined up another tenant whose costs the landlord is then chased for because of inability to complete.
Not sure but hard to see any Court awarding double rent unless the landlord has actually suffered loss.
It does only apply to notice from tenant to Landlord – unfortunately!!
I believe that there are rules which define when notices are deemed served when sent by Royal Mail. Are there similar rules for other countries? If not could this be why the OP has been advised the notice is not valid?
There are rules about deemed service periods etc when service is by post. However if the tenant gives evidence to say that he did not ever recieve the item, I suspect the Judge would accept that and refuse to allow the claim.
After all sometimes the post does go astray and a landlord has to prove that it was served. If the tenant says he never had it – how can you prove it actually arrived?
If anyone has any experience of this let me know. Happy to be proved wrong on this.
“However if the tenant gives evidence to say that he did not ever recieve the item, I suspect the Judge would accept that and refuse to allow the claim.”
I no not have any experience of this but the advice I was given on another site was to send two copies of the notice from different post offices, each with proof of postage – for one to go missing may be possible but for both very unlikely.
I read something recently about Notice of Intended Prosecutions (NIPs), often sent to people caught speeding by a camera, saying that the fact that it was posted was sufficient for it to be valid – I would have thought the same rules should apply or else it would be easy to argue that the NIP was never received.
The point is – do you want to risk it?
It is hard for a tenant to deny receipt if you serve it by hand and have a witness statement from an independent witness – which is what I recommend.
However if this is impossible, then yes, posting from more than one place is best. Maybe also send it by recorded delivery and via email. The more ways you send it, the less likely it is that the Judge will accept that the tenant never got it.
First class mail is best (apart from personal service) IMO because there is a clear deemed service rule in the CPR and I cannot see how there could be any proof that the notice wasn’t received (hence the deemed service rule, I suppose).
If the intended recipient could just claim that they never received the notice in order to derail the legal process then service by post would simply not be possible.
Surely a landlord living abroad will have an agent (professional or not) near the property who could serve notices and deal with other issues.
As I said, do you want to risk it? Your choice.
When I did eviction work I felt it was important to ensure that there were no blocks to getting an order. A tenant claiming that he did not receive the notice is a possible problem which frankly landlords can do without.
It did not happen that often in my cases because I took good care that all my notices were served personally and that this could be proved. However, I did once have a case adjourned when the tenant claimed this, along with a (false) allegation that he had paid the rent. This delayed getting the order for possession for some 3 months.
I do not think it is necessarily the case that a landlord’s only break clause is unenforceable. Whilst the UTCCR 1999 provide that any provision which authorises “the seller or supplier to dissolve the contract on a discretionary basis where the same facility is not granted to the consumer” is an unfair term, no term is an unfair term if it is individually negotiated in good faith and has not been drafted in advance.
A break cause would not be unreasonable if, for example, the tenant’s concern was to ensure no rent increase for a period longer than the landlord was willing to grant a fixed term.
Whilst it is legally acceptable to send as simple first class post for ‘deemed service’, I always send notices by Royal Mail Special delivery (not recorded!), this is guaranteed tracked.
I have recently defended a s21 where the L/L’s Solicitor claimed 1st class as served…the Judge felt it was reasonable to expect some form of proof of this than a mere statement of truth.
After all, unlike the poster who refers to speeding notifications, in this the consequences are far greater….someone could be made homeless.