This is a question to the blog clinic fast track from Khushal who is a tenant.
I have a periodic tenancy entered into on 1 March 2006. In November 2016, I filed a defence against a Section 21 Notice issued. Amongst other things, this included the points below:
1. Delayed repairs in the common parts, though the Landlords pointed out that no notice was given to them.
2. As a tenant renting a room in a shared house, the Landlords did not specify the room and shared facilities, as well as the property address.
3. The Landlords failed to notify me of a change in ownership within 2 months under Section 3 of the Landlord and Tenant Act 1985.
There was a Court hearing yesterday, whereby these were discussed with my barrister.
I said…The Landlords didn’t need to be notified for repairs in the common parts. Whereas the Landlords were merely taking pictures prior to the Court hearing, repairs were only carried out after the Section 21 notice was issued.
He said…The fact that the Landlords only carried out repairs in November 2016 is irrelevant as they have already addressed the problem to cover their backs.
I said…According to legal sources, it appears that the Landlords must specify the room and shared facilities, as well as the property address for shared accommodation.
He said…The Landlords needed not specify the room and shared facilities, as well as the property address, as they don’t appear on the rental agreement.
I said…Section 48 of the Landlord and Tenant Act 1987 and Section 3 of the Landlord and Tenant Act 1985 are mutually exclusive conditions and complementary and should both be satisfied.
He said…Section 3 of the Landlord and Tenant Act 1985 is irrelevant as a precondition to the issue of a Section 21 Notice, as I already knew who were the landlords, while I was paying rent to them.
I was forced to accept the other party’s proposal to leave the property by the end of February 2017, bearing our own costs, and the Judge was notified accordingly.
Did I lose my case because of professional negligence?
Strictly speaking, you did not ‘lose’ the case as you settled on the advice of your legal advisor. You did not have to accept his advice and you could have told him that you did not wish to settle and ordered him to continue with the defence.
However, for slightly different reasons, I think you would have been unwise to do so.
Proceedings under section 21
Section 21 of the Housing Act 1988 provides that landlords can recover possession of the property provided they have served a valid section 21 notice, the time period of that notice has expired and the tenant remains in occupation.
The rules for using section 21 have become more complex in recent years, but the grounds for defence are still relatively few. Essentially they are:
- That the tenancy is not an AST (as s21 can only be used for ASTs)
- That the notice is invalid
- That the notice period had not expired before the proceedings were issued
- That there was an error in the court paperwork
Let’s take a look at the points you mention in this context:
Delayed repairs to the common parts.
This is not actually a defence which is available for section 21 claims unless (for tenancies which started or were renewed on or after 1 October 2015 only) the Local Authority has served an improvement order on the landlord (see more on this here).
If the claim was being brought under the rent arrears ground, a possible defence and counterclaim can be one based on disrepair. However, your landlord was not evicting you under the rent arrears ground but under section 21.
Even if the claim had been a rent arrears one, there is also the problem that the disrepair is not to your room (which is the subject of your tenancy) but to the parts of the property shared with others. Plus you say that the repair work has already been done. So the disrepair issue is not relevant to this claim.
The landlord did not specify the room in the proceedings.
It would have been good practice to specify the room. Indeed if the landlord has given a series of tenancy agreements all purporting to be of the same property and not stating that in fact they are agreements for different individual rooms in the property, the written agreements may be invalid in that respect.
If this point had been raised I don’t think it would have done you much good, however, as Judge’s tend to take account of the facts of a situation rather than what is written on the document (per the Street v. Mountford case). Clearly, you have a tenancy of your room as you have been living in it and paying rent.
Probably the best you could have achieved here would have been an adjournment to allow time for the proceedings to be amended.
Sections 48 and 3
Section 48 notices are required under the Landlord & Tenant Act 1987 and state that unless the notice is given, rent is not payable. If the notice was not given then this would have been a valid defence to a claim for possession based on rent arrears. However, rent is not relevant to a section 21 claim.
If your landlord is a landlord by purchase who has not served a section 3 notice you, then again this is not correct (Ben Reeve Lewis considered this here), however again I can’t see how it could form a defence to a s21 notice.
I am afraid therefore that I do not think you would have a claim against your legal advisors. Although it looks as if these were not particularly well-drafted proceedings and no doubt the landlord was in breach of some of his obligations, sadly these cannot serve as a valid defence to a section 21 claim.
Section 21 (as amended) sets out all the various prerequisites needed for service of a valid notice, and none of the points raised by you fall within these.
The points you raise about the description of the property could have served to check the proceedings temporarily but I suspect the Judge would not have been very happy about such a technical defence and could have chosen to ignore it. Judges have shown in the past that they are prepared to overlook technical errors such as this in section 21 notices, so long as they do not prejudice the tenant.
I can’t see how this would. You are clearly a tenant, your tenancy is an assured shorthold one, and it does not look as if any of the points set out in section 21 itself applied.
So from the information you have provided, I don’t think you would have a case. However no doubt you have not told me everything so do not let this stop you taking further advice. You will find a list of organisations providing advice for tenants here.