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Ash
Ash, Solicitor
Category: Property Law
Satisfied Customers: 10915
Experience:  Solicitor with 5+ years experience
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Good afternoon - Ill explain as briefly as I can, I have

Resolved Question:

Good afternoon - I'll explain as briefly as I can,
I have one flat that I need to sell, 300 miles from where I now live. Really, I need to sell this side of Christmas. I am on good terms with the tenant living there, and informed them I need to sell the property in advance of the serving a Section 21 Notice to Quit in March two months before the end of their six month fixed term.
They tell me they are unable to find another property and are now depending on a court eviction order. I've wasted no time in following the procedure to arrange such an order. Everything is in line with requirements to follow a possession order. I completed an N5B form for accelerated possession and submitted to the local court where the flat is located. They received the notice that a possession application had been made, and I received the same, with the response slip to send back after 14 days if the defendant had not responded. After ensuring they hadn't, I sent back the reply properly.
In the first instance, the court had lost that reply slip, although it was signed for. I found this out two weeks later, so had the letter sent to me via email, and I sorted out another response. This time, it made it into the process.
I've been informed by letter that the proof of delivery is not acceptable to the judge who reviewed the case, and that I needed to have supplied a self-completed N215 Certificate of Service.
The proof I supplied was a Royal Mail recorded 'proof of delivery' with the tenant's signature on the receipt proof, complete with date and time. I understand that the N215 is necessary if no such proof exists or if it was issued by someone other than myself as the landlord.
Both my tenant and I want this possession order. Now I've been informed that I and the tenant have to attend a hearing in September, nearly two months away, on the basis that this proof of delivery is not proof enough.
On the basis of the information here, do I have grounds to appeal this decision?
Thank you for your time.
Kind regards,
Matt
Submitted: 2 years ago.
Category: Property Law
Expert:  Ash replied 2 years ago.
Alex Watts :

Hello my name is ***** ***** I will help you with this.

Alex Watts :

Just to be clear you had filed a certificate of service with the Court?

Alex Watts :

What is the basis of the hearing, is the Court not satisfied that the tenant has been served notice please?

Customer:

Thanks Alex. The court state that there is no evidence of service. When filing the N5B I checked with landlord advice services, and my understanding was that an N215 is only necessary when there is no other proof and/or it was issued by another party. There was no N215 certificate of service, but there was the proof of delivery supplied by Royal Mail's own recorded delivery service, with her signature as proof she accepted it.

Customer:

On the N5B in section 5 I stated it was served by Royal Mail Recorded Delivery on the date that it was signed for.

Alex Watts :

And this is what the Court is disputing?

Customer:

Yes, I've been told in writing that there is no evidence of service and that I needed to have supplied an N215 form.

Alex Watts :

Well this notice is the notice seeking possession.

Alex Watts :

It does not mean that it is service of delivery

Alex Watts :

It means the actual notice itself

Alex Watts :

You then also exhibit proof of service

Alex Watts :

So that would be N215 or the copy of the recorded delivery slip

Alex Watts :

Is that what you did?

Customer:

Yes I believe I did. I submitted the notice to quit (s21) in March, sent via recorded delivery. I attached the notice, marked 'C', and the proof of delivery copy, marked 'C1'.

Alex Watts :

Ok - that all seems in order

Alex Watts :

Who has decided there is to be a hearing?

Alex Watts :

Does the order say, upon District Judge xxx considering the papers etc?

Customer:

I was told by the clerk on the phone that the judge made this decision. I can check the paper response in just a tick.

Alex Watts :

Ok.

Alex Watts :

Well the difficulty is this.

Alex Watts :

You can appeal the decision but then you need permission to appeal and then go before a senior Judge and explain why the Judge below was wrong

Alex Watts :

To even appeal is going to cost you around £100 in Court fees just for permission

Alex Watts :

In any event its going to take longer than September to get an appeal hearing

Alex Watts :

By that time your other hearing probably would have taken place.

Alex Watts :

In reality its going to be longer and cost you more to go down the appeal route.

Alex Watts :

Even though I think you have an arguable case.

Alex Watts :

But if possession is granted when you attend I would not worry

Alex Watts :

So yes, you could appeal but you must get permission

Alex Watts :

Once you have permission there would be a substantive hearing

Alex Watts :

All that takes time

Alex Watts :

I am sorry if this is not the answer you want and certainly not the one I want to give you, but I have a duty to be honest

Alex Watts :

Can I clarify anything for you about this today please?

Customer:

The paper response doesn't mention who made the decision, but the person on the phone did state the judge decided this... Well of course you need to be honest and I appreciate that you agree I would have a case. If only you were overseeing the case. But it's more important for me to get this done and it seems the system is designed to make any appeal a less productive course of action, so I have my answer. Is there no other route available to me to have someone look again and proceed with the accelerated possession order?

Alex Watts :

No.

Alex Watts :

It must be an appeal

Alex Watts :

You can't set aside because there is no Court order yet

Alex Watts :

I am sorry

Alex Watts :

But does that make sense?

Customer:

Hardly your fault. I think that's all we can say about this, and I appreciate your time and candidness.

Alex Watts :

Happy to help. If this does answer your question might I invite you to rate my service today

Alex Watts :

If the system wont let you or you need more help please click reply

Customer:

Of course. All the best, Alex.

Alex Watts :

And you.

Ash, Solicitor
Category: Property Law
Satisfied Customers: 10915
Experience: Solicitor with 5+ years experience
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