With the number of free eviction notice templates and forms that can be downloaded from websites, it’s not surprising that the number of landlords and letting agents aiming for the cheapest route would choose to fill them in and use them. Not surprisingly again, because of the lack of correct eviction knowledge and experience, 7 out of ten of these DIY evictions get thrown out of court through lack of correct paperwork (as perdirect quote from the Chairman of London Magistrates Association in respect of Section 21 proceedings).
When eviction notices are issued incorrectly, this can cause the landlord many months to apply to the courts again, costing thousands in lost rent and fees, especially since court closures in the UK have increased waiting times for possession hearings.
So the intelligent landlord and letting agent will opt for a seasoned professional to instigate eviction proceedings. But what if you hire a solicitor? You would expect a highly professional service and a watertight possession of property and a smooth eviction process? Unfortunately not all lawyers operate with full knowledge and direct experience of the legal aspects pertaining to eviction law.
In a recent case, we were approached by a landlord needing desperate help in regaining possession after a botched eviction notice was served by a solicitor. To add further insult to injury, the landlord was charged the princely sum of £600 for a defective Section 21 eviction notice and one letter. The landlord, who is retired, owns one investment property and has always managed it himself.
At the start of the tenancy he took two months rent in advance and no deposit – or so he thought. The tenant stopped paying rent (their rent is £540.00 per month, they now owe £3,230.00), the landlord instructed a local solicitor who specialises in general litigation to get repossession.
Despite the arrears being sufficient to enable a Section 8 notice under the mandatory repossession procedure, the lawyer issued a Section 21 Notice giving the tenant two months notice. A standard eviction procedure you may think?
So what’s the problem???
- If a Section 8 had been used, court proceedings could have commence 14 days after serving the notice. The S21 used expires after a minimum of 2 months so takes at least 6 weeks longer to get to Court.
- A Section 21 if it were successful would grant a possession order only, the landlord would not get a judgement in respect of the rent arrears. If a Section 8 had been used, it gives the landlord the right to seek possession AND an order for the tenants to pay the arrears.
- BUT ………….. the biggest potential problem relates to the advanced rent/deposit. The landlord accepted 2 months rent in advance but no deposit. The solicitor took this on face value and issued the Section 21. The legislation is very clear – if a deposit has been taken and not protected, the landlord losses the right to use a Section 21.
- The deposit legislation states that any payment taken in respect of a potential future liability of the tenant is ……… A DEPOSIT!!!
- If I had advised the tenant I tell them that they HAD in fact paid a deposit and therefore raise a defense that the Section 21 was defective, as the deposit had not been protected, this would mean the whole process would need to start again!!!