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Remus2004
Remus2004, Barrister
Category: Property Law
Satisfied Customers: 69519
Experience:  Over 5 years in practice.
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I served a section 21 1b notice to possess property on 2nd

Customer Question

I served a section 21 1b notice to possess property on 2nd Jan '14, but because I secured tenants deposit approx 60 days after tenancy started with DPS 4 years ago I cannot proceed with N5B. Tenant wants the possession order to go through & give to the council so she can be housed by them. Is there anything we can do ie pay deposit back, or tenant claim against me for late deposit (what does action withdrawn, or settled mean regarding this) could we then then go ahead with section 21. the 12 month AST tenancy ends on 8th March 14 therefore will be a periodic tenancy. Tenant is ex family member & we are trying to resolve this between us.
Submitted: 2 years ago.
Category: Property Law
Expert:  Remus2004 replied 2 years ago.
Thank you for your question. My name is XXXXX XXXXX I will try to help with this.

Are you saying you have protected the deposit within the AST period?
Customer: replied 2 years ago.

Yes her tenancy began 8.3.2010, I should have lodged the deposit by approx 3.4.2010 but through ignorance of law etc didn't lodge it until begining May 2010.

Expert:  Remus2004 replied 2 years ago.
When did you serve the S21 notice?

Who has told you that you cannot rely on this?
Customer: replied 2 years ago.


The notice AST notice requiring possession was served on 2.1.2014 by hand.


 


I have been reading CAB advice and other advice on line and it says that if the deposit wasn't lodged with the DPS within the 30 days the landlord can not serve the section 21. therefore I am under the impression that the judge would throw out my N5b when they check and see that I didn't deposit the money within the 30 days and I would loose the £180 court fee


 

Expert:  Remus2004 replied 2 years ago.
Don't worry about what the CAB say. You don't work there because you were a brilliant student of law
Expert:  Remus2004 replied 2 years ago.
Hi

Take no notice of the CAB.

If you have protected the deposit within the term of the AST then you can serve a valid S21 notice and seek possession.

You were late and so you are vulnerable to a claim for three times the sum under the Localism Act but its not likely that the tenant would get any more than the sum of the deposit and you can still serve a valid S21 notice.

If you want to be absolutely sure then return the deposit to the tenant but you will have to serve the S21 notice afresh.

its nothing to worry about though.

Don't waste your time with the CAB in future. You might as well talk to an astronomer in my opinion!

Hope this helps. Please let me know if you need more information.

Jo
Remus2004, Barrister
Category: Property Law
Satisfied Customers: 69519
Experience: Over 5 years in practice.
Remus2004 and 3 other Property Law Specialists are ready to help you
Customer: replied 2 years ago.

Re 1st paragraph (your last answer)


you say 'within terms of AST' but because the deposit was not secured within 30 days have I not FAILED to meet terms of the AST.


 


I have just looked at the tenancy agreement and it does actually say on there that the deposit has to be secured within the 30days


 


Will this prevent me getting the possession of property with the N5B

Customer: replied 2 years ago.


I rated your service because it said my question will not close and you will deal with follow up questions free. But I am not getting answer

Expert:  Remus2004 replied 2 years ago.
I am currently travelling to court. I will respond fully as soon as I can.

Thanks for your patience.
Expert:  Remus2004 replied 2 years ago.
Hi

Yes, you have failed in your duty and you are vulnerable to a claim for three times the amount under the Localism Act but if you have protected the deposit now and you did it during the term of the AST then you can serve a lawful S21 notice and rely on it to get a possession order.
Customer: replied 2 years ago.

Hi


you say that I am vulnerable to a claim of 3x deposit, but more likely that tennant would get the sum of the deposit. Is this 'sum of deposit' the actual deposit, or is it a type of fine I would have to pay her aswell as give the deposit back.


 


Thank you


 

Expert:  Remus2004 replied 2 years ago.
She can claim for three times the sum of the deposit but would probably only get the sum of the deposit back.
Customer: replied 2 years ago.
Hi, sorry for the previous mix up when you were on way to court, thought I had pressed wrong button!!!!!

I would like to ask you about the notice expiry date/end date on section 21 notice and N5b possession order claim form.

My tenants tenancy agreement says for fixed term 12 months from and including 8th March 2013 to 8th March 2014.

On my section 21 notice I put. That I require possession AFTER (printed on form) then I wrote 8th March 2014. There are a couple of printed paragraphs underneath as a precaution just in case the date I wrote was incorrect.

My questions are

1. Is the possession date (8th March 2014) correct on my sect 21 notice, bearing in mind how the tenancy agreement reads.

2. What date do I put in on the N5b possession of property form? Question 5 asks what date I did Serve sect 21, MY answer is 2nd Jan 2014, served by myself. It then wants to know DATE NOTICE EXPIRED. I have put 8th March 2014., But there isn't any clause here for getting it wrong.

Therefore I would be grateful for your verdict on the dates I have entered on Section21. Notice and the N5b possession form bearing in mindnhow the tenancy agreement reads.

I am terrified iN5b will be trown out due to wrong dates entered, and will have to start all over again.

Regards
Gloria
Expert:  Remus2004 replied 2 years ago.
Can look at this later today if thats ok?

I'm racing around a but now.
Customer: replied 2 years ago.

yeah thats fine.


gloria

Expert:  Remus2004 replied 2 years ago.
Thanks.

Expert:  Remus2004 replied 2 years ago.
Hi

Your S21 notice is incorrect then. The expiry date is the 7th March 2014. If it were the 8th March then you would be giving them one extra day.

Dates are very important on S21 noticed so its best to serve another.
Customer: replied 2 years ago.

I thought that as the tenancy agreement was from 8th March 2013 to


8th March 2014 that the tenant had a right to be in flat until 11.59pm on the 8th march 2014


 


Gloria


 


 

Expert:  Remus2004 replied 2 years ago.
Well, it shouldn't be from the 8th to the 8th.

The 8th is the start date of the AST so the 7th is the end term date. The 8th March 2014 is the first day of a new AST.
Customer: replied 2 years ago.

Sorry, (I looked at wrong Tenancy Agreement)


The tenancy agreement in question states 'fixed term for period of 12 months, from and including the 8th March 2013 to 7th March 2014.


 


1. Is my section 21 correct when I stated that


I require possession (after) 8th March 2014, if not what should it read with these tenancy dates.


 


2. Should I use 8th March 2014 as notice expired/End date for question 5 on the N5b Claim for possession. (If not what should this read).


 


Apologies again for wasting your time, (paper work all over the place).


 


Regards


Gloria


 

Expert:  Remus2004 replied 2 years ago.
1 I'm really sorry but I'm afraid I think that is invalid. There has been caselaw that has reduced the requirements of a S21 notice but dates are still very important.

2 The end date is the 7th March and that is the date that should be used but you still have the problem of the notice being invalid potentially. You could take your chances in court but its a risk.
Customer: replied 2 years ago.


Thanks,


 


So tenancy agreement is ok ?


 


Section 21 should have read end possession required (after) 7th March 2014 ?


 


End date 7th March 2014 would have been used on N5b Possession claim form for the Court. ?


 


If you would be kind enough to clarify these points (again) I'll shut up and you will be able to enjoy rest of the day.


 


Thanks


 


Gloria


 


 


 

Expert:  Remus2004 replied 2 years ago.
Haha!

Yes, AST is fine.

But the S21 notice should quote 7th March. 8th March is the first day of the new AST.

All the best
Customer: replied 2 years ago.

Thanks,


So, 7th March 2014 is also put down as notice expired/ end date on the N5b claim form for possession ?


 


I would be grateful for a quick response before the 'men in white coats come and take me away' haha


 


Gloria


 


 


 


 

Expert:  Remus2004 replied 2 years ago.
Yes, thats exactly right.

7th March is the end term date.
Customer: replied 2 years ago.


Thank you so much.

Expert:  Remus2004 replied 2 years ago.
No problem.

All the best.

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