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TheOmbudsman for Property
Serve your section 21 notice correctly says Christopher Hamer
I
t is apparent from some complaints that not all letting agents are aware of
the importance of ensuring that Section 21 notices are prepared and served in the correct manner. When an agent has a contractual obligation under their agreement with their landlord client to serve notices for possession on their client’s behalf, they have a duty to ensure that they meet the necessary legal requirements to avoid subsequent problems. A Section 21 (1)(b) notice
should be served on the tenant at least two months before the expiry of a fi xed term tenancy. A Section 21 (4)(a) notice is used to serve notice when the tenant is holding over under a statutory periodic tenancy. It is vital that the correct notice is used for the correct tenancy. Both notices can be deemed as being incorrectly served if they contain errors, such as incorrect spelling of the names of the parties or the address of the property, an incorrect postcode, or the wrong dates.
When posting a Section 21
notice to the tenant, proof of postage should be obtained and retained on the agent’s fi le. If the notice is hand delivered, it must be served to the tenant at the property in the presence of an independent witness. It is not deemed acceptable to serve notice by text or by email. Agents should be aware that the eff ects of an incorrectly served Section 21 notice can be severe. In a number of cases I have seen, the agent’s failure to ensure the notice was correctly completed or served resulted in increased, but avoidable, legal fees for the landlord as well as an ongoing tenancy which the landlord had wished to terminate due to rent arrears. Those arrears then increased as a result of the tenant’s extended occupation of
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to remain in occupation of the property for as long as possible. However, it was clear that the agent’s actions delayed the possession process which caused a considerable degree of avoidable aggravation, distress and inconvenience to the landlord, and this was refl ected in my award of compensation. It is not unusual for an agent to
serve the Section 21 notice on the fi rst day of a tenancy (when the tenancy agreement is signed). However, it must be served on and received by the tenant after the signing of the tenancy agreement, otherwise the tenant could later claim that it was served before the tenancy and is therefore an invalid notice. I recently reviewed a case
served if they have errors in dates, names or postcodes.”
“Section 21 notices can be deemed incorrectly
the property. Landlords facing increasing rent arrears and additional legal fees do not make for happy clients! Paragraph 11a of the TPO Code
of Practice requires that, upon receipt of the appropriate instructions from a landlord client, an agent should take steps to serve a lawful notice upon a tenant to terminate the tenancy. In a recent case brought to my
offi ce the Section 21 notice served by the agent related to a fi xed term tenancy, rather than a periodic. Luckily this error was identifi ed and the agent issued a further Section 21 notice, but when the landlord applied for an order for possession based upon the second notice, it was found by the judge that the expiry date had been incorrectly completed and, as a result, the landlord was not granted a possession order. It was not possible for me to
conclude that the process of regaining possession of the property would have been straightforward had the Section 21 notice been served on the tenants correctly as the tenants had demonstrated an intention
where the tenancy agreement and Section 21 notice both contained details of the time these documents were signed. As the tenants had signed their receipt of the Section 21 notice four minutes before they were recorded as signing the Tenancy Agreement, this rendered the notice invalid. This error was not identifi ed until towards the end of the tenancy when the landlord requested that the tenants vacate the property due to their rent arrears. Again the process of removing the tenants from the property was delayed due to the agent’s actions and I made an award of compensation in respect of the avoidable aggravation caused to the landlord complainant. These cases highlight the duty an agent has to ensure that their staff are fully trained on the serving of legal notices on behalf of their landlord clients. It is not a task that to be undertaken by inexperienced staff . I strongly recommend that all agents seek the appropriate legal advice if they are unsure of their obligations when drafting and serving Section 21 notices. ●
TheNegotiator ● April 2012 ● 33
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