Section 21 Notices – some Keypoints

By Jonathan Gilbert

Purchasing a property to provide some extra rental income can seem like a fantastic idea and most of the time it is.

However, when a tenant stops paying rent  a landlord can very quickly be in a very difficult position – if there is a mortgage over the rental property the landlord may have to meet the monthly repayments out of his or her own pocket.

The quickest way to start the process of regaining  possession of a rental property from a tenant who is not paying the rent could be by serving a notice under Section 21 of the Housing Act 1988.

What is a Section 21 Notice?

·        A Section 21 Notice is a notice informing the tenant that the landlord requires vacant possession of a rental property held on an Assured Shorthold Tenancy after a certain date

·       The Notice can be served on the tenant at any time during the tenancy but can not require possession of a property within the first 6 months of the tenancy or before the end of any fixed period and must give the tenant at least 2 months notice before court proceedings are started 

·       The notice is not the end of the possession process but the start. Once a valid notice has been served on the tenant the landlord will be entitled to commence possession proceedings – these in many cases are accelerated and can be concluded in a matter of a few weeks. They  are often impossible for the tenant to defend.

Common pitfalls in Section 21 Notices are:

·       If the landlord has taken a deposit it will need to be protected in a government Tenancy Deposit Scheme. No Section 21 Notice will be valid until a deposit is secured in a TDS.

·     If the property should be licensed through the Local Authority and is not the Section 21 Notice may not be valid

·      The expiry date stated on the Section 21 Notice must be correct. If its not the notice may not be valid.

·     There is no prescribed form of Section 21 Notice but it must include certain mandatory information. If it doesn’t it may not be valid.

·       A landlord can not recover arrears of rent pursuant to Section 21. If you require arrears of rent to be recovered you may consider proceedings under Section 8 of the Housing Act.

Possession matters can be complicated. If you make mistakes you may end up wasting time and money.

Should you require advice on any aspect of landlord and tenant law then contact Jonathan Gilbert of MHHP solicitors by telephone on 02036674787 or email on jon.gilbert@mhhplaw.com 

This is where MHHP Solicitors specialise in helping you find out more about your rights and entitlements during your lease of a residential property. MHHP Law can help you see if you can extend the length of your lease, or if you can purchase the freehold to your property.

We know that owning a new build property or entering into a shared ownership of a property can be daunting at first and that is why we aim to take the hassle our of any property agreement you having, leaving you to build a happy home.

If you are looking for a Solicitors in Barnet for any legal issues and would like to talk to specialist solicitors contact MHHP Law for more information.   

The closest guess we received was……………………..2.34kg which is extremely close and we will be contacting the winner very shortly.

Well done and thank you to everyone at the conference that guessed the weight of the sweet jar and participated in our competition. It was a pleasure to meet you all.

Prime Minister, David Cameron met with victims of stalking and said that he and the government were determined to ensure that “justice was done” and he committed to new laws that would protect victims.

 It is now widely expected that the government will sign the European Council’s “convention of violence against women” bill, which could result in the criminalisation of unwanted verbal conduct, such as wolf whistling.

MHHP Law specialise in a range of different law services. If you are in need of a solicitor contact MHHP Law today.

The current system has been criticised for being “rigid” by David Norgrove, chairman of the Family Justice Review, he pointed out that children waiting on  a decision over a custody dispute are currently waiting an average of 6 60 weeks before they find out the outcome. 

If you are not married to your partner and you are living in a house, the title of which is registered in your partner’s name, you do not have an automatic right to a share in the sale proceeds of that house. So, if your partner decided to sell at the end of the relationship, even though you may have contributed to the mortgage or have raised the children of the family, you would have no automatic entitlement.

The court may look at whether there was a direct contribution to the purchase of the house or a common intention that both parties should have a beneficial interest in the property but in the absence of anything written down, do not rely on this, as it may be difficult to prove.

When moving in with your partner, if they already own the property, agree with them as to what would happen in the event that the relationship broke down. For example, will your partner recognise your financial contributions to the household outgoings or the mortgage or even go as far as agreeing to transfer the property put into your joint names whilst you are together?

Any provisions agreed upon, can be put into a Separation Agreement. Most people do not like to talk about “such things” when times are good. But it could save you a lot of heartache and distress if times are bad later.

If you are buying a property together, you should have the terms of the shares in the property, perhaps based on your share of the financial contributions, documented in a Declaration of Trust document, which will state how much each of you will get, if the property has to be sold.

You should also consider how the title to the property should be held; as beneficial joint tenants or tenants in common. With the former, if one of you passes away, that person’s share will automatically pass to the survivor. With the latter, your share, which may be identified in the Declaration of Trust, would pass according to your will or the intestacy rules.

Hence, a good reason for making a will! If you want to ensure your partner gets what you want them to have, you should make a will. If you do not, the intestacy rules make no provision for a cohabiting partner to receive anything (although in some circumstances depending upon whether the deceased partner financially maintained the surviving partner up until the time of death, the surviving partner could make a claim against the estate of the deceased, but this will involve court litigation.)

My advice is, do not chance it, get it in writing.

Well the real Mr Del Monte, or at least the man who owned Del Monte, the fruit and drink company, Mr Imerman, said ‘No‘ to his wife obtaining financial information about him which she was going to use in her claim against him in their divorce proceedings.

Mr Imerman applied to the court to prevent her from relying on financial information obtained by her brothers from a computer in the office they shared with Mr Imerman at one time. (They are billionaires in their own right apparently but felt the need to share an office!).

The matter went as far as the Court of Appeal which decided in July that obtaining information about a spouse’s finances which wasn’t easily available breached a spouse’s right to privacy. The Court of Appeal stated that a spouse should apply for search and seizure, freezing, preservation and similar orders to ensure that assets were not wrongly concealed or dissipated.

So spying on your spouse’s financial information which is stored away, may not be useful anymore if your relationship breaks down! It will be interesting to see how the lower courts interpret this in practice.

The case was brought under the Equality Act (Sexual Orientation) Regulations 2007 which protects against discrimination on grounds of sexual orientation, perceived sexual orientation, or association with the sexual orientation of other people, in the delivery of goods, facilities and services.

The owners of the hotel who are devout Christians said it was an affront to their faith and that they operated a policy which only allowed married couples to share a room. They stated that their policy meant that even a heterosexual couple , who were not married would not have been allowed to stay in one room.

The gay couple (the Claimants) argued that they had suffered direct discrimination on the grounds of sexual orientation . The court found that the owners (the Defendants) had unlawfully discriminated on grounds of sexual orientation and that the right of the Defendants to manifest their religion is not absolute and can be limited to protect the rights and freedoms of the Claimants.

The Regulations were brought into force to prevent discrimination against gay people in accessing hotels, restaurants, cafes and private housing and in the provision of healthcare, social housing and nursing homes.

The general guideline, taking into account the above and the provisions of the Equality Act 2010, is that if you are running a business, treat everyone accessing your goods, facilities and services fairly, regardless of age, gender, race, sexual orientation, disability, gender reassignment, religion or belief and guard against making assumptions about the characteristics of individuals.

1. Make a Will
Although this seems obvious, most people want to make a will. However, other immediate priorities seem to take precedence.

Thinking about your property, affairs and family situations provides certainty to your wishes and perhaps helps to avoid potential disputes later.

2. Safekeeping
Having been organised and actually made your will, it is equally important to make appropriate arrangements for storage of your will. If a person’s will cannot be found after they have passed away, the law presumes that the will was revoked by the person making it and could leave them in the same position they would have been in without a will!

Storage could be in your own filing storage at home, a safe deposit box or making use of a solicitor’s or other professional’s storage facility.
You could consider registering the location of the will with one of many Will’s Registries. One down side is that there is no single wills registry and perhaps it is time a government department is set up for this, similar to the Land Registry.

3. Telling Relevant People
As a further safeguard, it would be prudent to let relevant people know:

• that you have made or amended your will – there is no reason to let them know the contents unless you want to.
• Where you are keeping your will – if you are worried about them trying to see your will in advance, this is where keeping the will with a third party, such as your solicitor or accountant, would be useful.

Relevant people would be those you have appointed as Executors under your will and perhaps beneficiaries.

All of these measures may prove to be really useful at a particularly delicate time after the loss of a loved one. This might have the added benefit of stopping certain disputes arising at an already emotional time. This is highlighted in a case currently at the High Court where an ex-mistress and estranged children are in dispute over a "missing" will.

The son and daughter of the late Charles Napier are in dispute with their late father’s girlfriend over his estate. Mr Napier died of cancer in November 2008, aged 65. His son and daughter say they have not been able to find a will and are asking the High Court to declare their father intestate.

However, according to newspaper reports, the deceased’s former lover, Mrs Ferneley, alleges that he named her as sole beneficiary of a will that has since gone missing.
It appears to be common ground that the deceased had been estranged from his children since his divorce many years ago. Mrs Ferneley’s case is that the deceased must have left a will in her favour, which the children have "suppressed".

She does not claim to have seen the will but says that it was highly unlikely that the deceased did not make one, as he had been secretary of the local Citizens Advice Bureau.

The case continues……but perhaps it is a timely reminder to start a dialogue with a professional and our loved ones.

When looking at whether a pre-nuptial agreement should be enforced, the courts will look at the circumstances in which the agreement was made. If the parties entered into the agreement voluntarily without undue pressure from the other party and received full independent legal advice on the implications of the agreement, then the courts are likely to enforce the agreement.

There must also be full and frank disclosure by each party to the other of their financial circumstances.

The time lag between the date of an agreement and the date of the separation will be important also, so that where the marriage was short and there had not been a substantial change in the parties’ financial circumstances since the making of the agreement, compared to say a long marriage where the parties financial circumstances had changed over a period of time, then an agreement is likely to be enforced.

In cases where the pre-nuptial agreement was made in a foreign country where they are recognised, this would be a factor which is taken into account in recognising an agreement, because it is inferred that the parties intended it to be enforced elsewhere, such as in England.

The case will not make pre-nuptial agreements completely binding and the fairness of an agreement will be dealt with on a case by case basis.