The Section 21 Notice originates from section 21 of the Housing Act (1988). A Section 21 Notice is a Notice that a Landlord serves on a tenant to ask them to leave by a certain date, and it is the first step in the legal process of recovering the Landlords property. The Landlord then has to apply to the Court. It is a “no fault” notice meaning that there doesn’t need to be any breaches of the tenancy agreement for it to be served.

The Section 21 Notice can be served during the tenancy if the tenancy has become a periodic tenancy or if there is a break date during the tenancy. The notice cannot be served during the first 4 months of the tenancy. If the Landlord must issue proceedings to evict the tenant following the expiry of the notice, this needs to be done within 6 months of the date of the notice or the notice will be invalid.

Mistakes that can render the Notice invalid

It is important to ensure that the Landlords obligations are complied with prior to the service of the notice, or the notice can be rendered invalid, meaning the procedure would need to be started again which would cause delays for the Landlord. Prior to the tenancy starting, the Landlord needs to ensure there is a valid EPC in place and that this is served on the tenant. The EPC is valid for 10 years. The EPC does not however need to be valid at the point the notice is issued, provided it was valid at the start of the tenancy. The Landlord also needs to ensure that there is a gas safety certificate in place and that the tenant has seen this prior to the tenancy commencing, a further check should be done every year, and the tenant should receive a copy of every certificate. It is crucial that Landlords retains copies of the certificates so that these can be annexed to the claim to the Court, or the claim can be dismissed. If the tenancy commenced after 2015, the applicable How to Rent checklist should be served on the tenant prior to the start of the tenancy. However, the case of Trecarrell House Limited v Patricia Rouncefield (2020) confirms that failure to serve the EPC or the gas safety certificate does not prevent the service of the notice if the documents are served on the tenant before, or at the same time as, the service of the Section 21 Notice.

Landlords also need to be cautious about when they serve the notice, for example, if the notice is posted 2 months prior to the vacation date contained within the notice then it will be rendered invalid. Part 6.26 of the Civil Procedure Rules governs the deemed date of service depending on the method of service. The 2 months that a Section 21 Notice needs to give needs to be 2 months plus the amount of days it takes for the method of service to have effect.

The Deposit

According to the Tenant Fees Act (2019), the Deposit is only allowed to be the equivalent of 5 weeks’ worth of rent or less or if the rent for the year is less than £50,000.00, or 6 weeks’ worth of rent if the rent for the year is £50,000.00 or more. Prior to the service of the notice, if the Landlord notices that the deposit was taken for an amount over the maximum amount allowed, the Landlord can refund the overspend and ensure the remainder of the deposit is still protected and then can still rely on a Section 21 Notice. The deposit needs to be protected under the tenancy deposit protection scheme if the tenancy started after 6 April (2007) and the Prescribed Information relating to this needs to be served on the tenant prior to the service of the notice also.

Revenge Notice/ Retaliatory Eviction

If a tenant complains to the council about the state of the property and the council serves an improvement notice or an emergency works notice on the Landlord, the Section 21 Notice cannot be served for up to 6 months after the date of either of those documents. If the council gives a hazard awareness notice, this does not affect when a Section 21 Notice can be served.

The Process

Firstly, the Landlord will check that their obligations have been complied with and if so, will serve a Section 21 Notice which will give at least 2 months’ notice. If the tenant chooses to remain in the property after the date they were asked to leave, the claim will be made to the Court which annexes all the documents that the Landlord is required to serve on the tenant prior to the service of the notice. Provided there are no issues with the paperwork and no missing documents, the claim can be dealt with “on paper” meaning that there is no hearing. The Order for Possession should then be awarded, providing the tenant a further date to leave by and ordering the Landlords costs to be paid. If the tenant still doesn’t leave when ordered, the Bailiff can be instructed to attend the property and remove the tenant.

The Renters’ Rights Bill

The Renters’ Rights Bill was introduced to Parliament in September 2024 and has not yet been approved but will have effect at some point soon. The Bill proposes to abolish Section 21 Notices and have all tenancies as periodic which is meant to give more protection to tenants by allowing them to question their Landlord without the fear of eviction. New grounds will need to be embedded into the Section 8 of the Housing Act (1988) to ensure that tenants are given more security, but Landlords can still recover their property on reasonable grounds. The Bill also proposes to provide stronger protection against backdoor evictions by allowing tenants to appeal rents which are unreasonably increased or are higher than the market rate simply to push a tenant out. It is proposed that there will be a new Private Rented Sector Landlord Ombudsman that will deal with tenants complaints about their Landlord. There will be a new Private Rented Sector Database which is supposed to help Landlords understand the obligations imposed on them and demonstrate compliance, and help tenants make informed decisions about whether to enter a tenancy. Landlords will need to be a member of this to rely on certain grounds. There are other changes contained in the Bill which don’t specifically relate to Section 21 Notices and focuses more on tenants’ rights.

Fixed term assured tenancies will no longer exist which will give tenants the right to end a tenancy after giving 2 months’ notice. This means that tenants won’t be forced to stay in a sub-standard property and won’t have to remain in a tenancy if circumstances change.
The Bill does not only favour tenants and so will expand the grounds for possession that can be relied upon under a Section 8 Notice, meaning that Landlords can still recover their property when it is reasonable to do so. The grounds will be expanded so that a Landlord can recover their property if their circumstances change also, which will include having to sell the property or move into it themselves.

The Bill will result in the first 12 months of the tenancy being protected, meaning that a Section 8 Notice (which will need to be used in place of the Section 21 Notice), cannot be served in this time period if the grounds relied on are for the Landlord to move in or sell the Property. When using these grounds, the Landlord will also have to give 4 months’ notice.

The current stance

The Renters’ Rights Bill has not yet been approved by Parliament and so Section 21 Notices can still be used to evict a tenant. Ensuring that the Section 21 Notice has been validly served and that the paperwork to the Court is correct is vital when time is of the essence. An unfavourable ruling from the Court can set the eviction back by months which can cause hardship for a Landlord. It is important to gain legal advice in relation to the necessary steps, having a Solicitor prepare the paperwork on your behalf can take some of the stress out of the Litigation process and help you regain possession of your property faster.

Please contact Litigation@franklins-sols.co.uk to request a quote for the process, or if you have any questions.

This article is correct at the time of writing, that being 27 February 2025.

 

A debt can arise in various circumstances, commonly when a debtor has been issued an invoice for works done or goods supplied, and the invoice is not paid in accordance with the payment terms. It is quite common for a debtor to not engage in correspondence once a debt has become due which is when it may be necessary to seek legal assistance.

Following receipt of a debt recovery enquiry, our team will check through the relevant documents and confirm the debt is due together with the applicable interest and confirmation as to whether the Late Payment of Commercial Debts (Interest) Act 1998 applies.

A Letter of Claim is sent to the debtor which confirms the amount due and provides our bank details so that the debtor has a final chance to pay. If the debtor doesn’t respond within the time frame specified, we can make the application to the Court asking for an Order against the debtor. A Letter of Claim needs to be in a specific format and failing to send the right letter can lead to you being responsible for your own legal costs, and even those of the debtor.

If the debt is for under £10,000.00, it will be allocated to the Small Claims Track which means that legal costs are not recoverable from the Defendant. It is often not economical to have legal assistance when allocated to this track as the legal costs involved can be similar to the amount in dispute and so would result in a pyrrhic victory.

If the debt is over £10,000.00, the amount of legal costs that are recoverable would depend on the track allocated to which would either be the Intermediate or Fast Track where recoverable legal costs are capped, or the Multi-Track where legal costs are generally recoverable from the losing party unless an adverse costs order is awarded. It is imperative that documents are filed with the Court in the time frame and the format that the Court requires, and so it is crucial to have the necessary legal advice to ensure that a simple mistake does not result in adverse costs order being made against you.

Once the claim has been made, the Defendant has 14 days from the date of service to file an Acknowledgment of Service or a Defence. If no response is received, we make an application for default judgment which is an Order against the debtor for the sum claimed. The Defendant still must not have responded by the time the Judge is reviewing the application for judgment in default in order for it to be successful.

If the Defendant does respond, they can either admit the claim but ask for time to pay, admit part of the claim or defend all of the claim. If the claim is defended, the Court will provide “directions” as to how the rest of the proceedings will follow which must be correctly followed. The documents required by the Court can be complex and the timeframe between making a claim and receiving a final trial significantly varies but is often between one and two years. Your legal representative will keep an itemised file of the claim, will be on hand to answer any questions and will ensure that the documents filed with the court strengthen your claim so that the desired result can be achieved.

If the debtor is a commercial one, an application to wind up the company can be made if the debt is over £750.00. The threat of insolvency is often enough to make the debtor pay, but if not, creditors can be entitled to a dividend upon the winding up of the company. If the debtor is an individual, the debt needs to be over £5,000.00 for a bankruptcy petition to be made. The bankrupt’s assets can be sold to repay the debt owed to you.

Once an Order has been awarded in your favour, there are various methods of enforcement that can be followed and our team will advise on the most appropriate course of action depending on the circumstances of the debtor.

For further advice and assistance please contact our Litigation and Dispute Resolution team on  01604 344562 / 01908 916096 or email info@franklins-sols.co.uk.

 

What is a Section 8 Notice?

A Section 8 Notice is a Notice that a Landlord serves on a tenant which states that possession of the property, which is the subject of the Assured Shorthold Tenancy Agreement, is needed back by a certain date. The difference between a Section 21 Notice and Section 8 Notice is that a Section 8 Notice requires that possession is required due to a breach of one of the grounds for possession. The Notice will require that possession be given within either 2 weeks or 2 months, depending on which ground is breached.

There are 17 grounds that a Landlord can rely on, the first 8 of which are “mandatory grounds” which the court must grant possession to the Landlord for and the remaining 11 grounds are “discretionary” grounds where the court can grant possession if they deem it is reasonable to do so.

Grounds for Possession

The process

Once a Landlord has discovered that they can rely on one of the above grounds, a Section 8 Notice should be served on the tenant stating which ground is being relied upon and stating the termination date which the tenant should vacate by. It is important that the Notice is properly served or the same could be found to be invalid if the matter proceeds to court which will cause significant delay with the eviction.

Once the termination date in the Notice expires, if the tenant does not vacate then the Landlord is permitted to apply to the Court for an Order for Possession. The Court will consider the papers and set a hearing. Provided the Notice is valid and the claim form to the court has been properly completed, possession should be granted. If the tenant chooses to remain despite the Order for Possession ordering them to leave by a certain date, the Landlord can instruct a Bailiff to attend the property and remove the tenant.

The forms required by the Court contain plenty of room for error when completing and so it is vital to ensure that all information is accurately documented so that the hearing can go smoothly and possession can be promptly granted.

For legal advice on issues regarding landlord and tenant disputes, please get in touch with our Litigation team on 01604 828282 or email litigation@franklins-sols.co.uk .

 

Alternative Dispute Resolution (ADR) is a fundamental aspect of the Civil Procedure Rules (CPR) which are the rules that govern the process of Civil Litigation. ADR is a way of settling a dispute other than having a judge decide the claim at trial after a lengthy dispute. ADR includes various methods of settling a dispute such as mediation, arbitration, part 36 offers, early neutral evaluation, without prejudice offers and an ombudsman.

CPR 1.1. contains the overriding objective which states that cases must be dealt with fairly and at a proportionate cost which would include the case being dealt with at a proportionate cost to the sum in dispute. If ADR is attempted early on in proceedings and is successful, it can save the parties the time and cost of a lengthy litigation dispute. Even at the end of a lengthy dispute that does result in a trial, the outcome of the trial cannot be promised. A claim going through the trial process has many stages that must be completed including but not limited to disclosure, exchanging witness statements, cost budgeting, expert instruction and trial preparation. All of this legal work will require payments on account throughout the process so even if a party is successful at trial and gains a cost award against the other party, expense will be incurred in the interim leading up to trial.

There is then also of course the chance that a party may not be successful at trial due to various reasons. The normal rule is that the successful party will be able to retrieve their costs from the unsuccessful party, although it is not possible to recover every penny a party has spent on litigation leading up to trial. However, a Judge can fray from this rule if they deem that the successful party has not been cooperative throughout the process and has unreasonably refused an offer of ADR. This means that if a party is successful in their claim but it is found that they unreasonably refused an invitation to enter into ADR, this may result in an adverse costs order. Mediation is a form of ADR in which parties are entered into a confidential meeting outside of the court process with a mediator who will communicate the offers of settlement between the parties.

Mediation has a high success rate of settling disputes so that the need for trial can be vacated. The case of Halsey -v- Milton Keynes General NHS Trust (2004) highlighted that there can be costs consequences for unreasonably refusing mediation where a Judge finds that mediation could have reasonably settled the dispute.

The Courts do not look favourably on parties who “want their day in Court” and strongly encourages parties to consider a reasonable alternative. The penalties for parties who don’t engage in ADR can include that the unreasonable party may be ordered to pay the other party’s costs on an indemnity basis. This could mean that the refusing party would have to pay the other party’s costs even if they are not proportionate to the amount in dispute. The Court often order a “stay” of proceedings which essentially pauses proceedings whilst the parties attempt ADR and often include on their orders that the refusing party may have to lodge a witness statement explaining their refusal to the Court.

It is well known within the profession that the Courts are extremely busy which causes significant delay in proceedings and countless adjourned trials, meaning that the relief that comes with a settled dispute is too often delayed for parties. The amendment No.3 to the Civil Procedure Rules comes into effect on 1st October 2024 which will include a stronger focus on Alternative Dispute Resolution which will take some pressure of the Courts.

For further advice and assistance please contact our Litigation and Dispute Resolution team on  01604 344562 / 01908 916096 or email info@franklins-sols.co.uk.

A claim made pursuant to the Inheritance (Provision for Family and Dependants) Act 1975 (“IPFDA”) is a claim made no more than six months after the Grant of Probate for the Estate in question has been issued. It is a claim for “reasonable financial provision” where the potential claimant has not been properly provided for, if at all, in the deceased’s Will. A potential claimant does not need to be missed out of the Will entirely to make a claim, a claim can be made if the potential claimant believes that their share is not enough to meet their reasonable financial needs. A claim made pursuant to the IPFDA cannot include a claim for specific items as it is a claim based on the “need” of the claimant.

Eligible Claimants include:

Once a claim has been made, the Court would need to consider:

The above list is not an exhaustive list of all considerations as every claim is at least slightly different, but the above list details the initial considerations that any Court would reasonably consider.

A claim made by a spouse

The Claimant and the Deceased must have been legally married at the time of death. The Court would consider what “reasonable provision” ought to be provided to the spouse. The age of the parties, length of the marriage, and the contribution to the “family life” would be considered. The Court may consider what would have been received by the spouse in the event of a hypothetical divorce.

The paramount consideration by the Court would be what is fair, right and reasonable in this case?

A claim made by an ex-spouse

A claim could be made by an ex-spouse if there is a “decree nisi” in place. This is where the parties are separated but not legally divorced. It would be unlikely to succeed in a claim where financial matters have already been settled as it would be presumed that the ex-spouse has already received what they are entitled to.

A claim made by a cohabitee

There is an onerous burden to evidence if a claim is made by a cohabitee. The claimant must have been living as “man and wife” with the deceased at the time of death and for the two continuous years prior to death. This means that someone who just shared a property with the deceased would not succeed in making a claim. The court may still want to see what contribution the claimant has made to the “family”.

A claim made by a biological child

There is a presumption that children will become independent of their parents after they come of age. There is no forced heirship in the UK, meaning you do not have to make provision for your children in your Will. What was expected for the child would be taken into account, such as education fees if the child is still in or is about to be in education.

It is important to note that a child of the deceased cannot claim on their estate if they have been legally adopted by someone else.

A claim made by someone who was “treated as a child of the deceased”

The Court would consider the length of time the claimant was maintained for by the deceased and what the reasonable future expectation of this would be. Important factors the Court would consider here would be whether the deceased knew the child wasn’t their biological child or if there was anyone else who also assumed maintenance for the claimant.

Claims made pursuant to the IPFDA 1975 can be quite complex and are a highly emotive field of law and so require specialist assistance.

For further advice and assistance please contact our Litigation and Dispute Resolution team on  01604 828282 / 01908 660966 or email info@franklins-sols.co.uk.

 

The courts encourage methods chosen to resolve a dispute before it reaches court which are collectively referred to as Alternative Dispute Resolution (ADR).

One option to parties to settle a claim before going to court is a ‘Part 36 offer’. This is a form of offer used to settle all or part of a dispute between parties in civil litigation, which is governed by Part 36 of the Civil Procedure Rules (CPR).

The Part 36 offer must be put in writing and is required to state whether the offer is to settle either all or only part of the claim. A breakdown of how the settlement figure being offered has been reached is not a necessary requirement to be included in the offer.

If the offeror makes a Part 36 offer that is not accepted and the offeree fails to obtain a more advantageous judgment when the case reaches trial, then generally the offeror will be ordered to pay the offeree’s costs from the date of expiry of the offer. Therefore, if the offer is not accepted, the receiving party of the offer has a significant risk as to costs and interest.

It is important for the Part 36 offer to be clear as to whether it relates to the whole of or part of the claim. If the latter then it needs to be clear as to which part of the claim it relates to so that there is no opportunity for the offeree to be confused. The offeree may require clarification regarding the matter rather than just accepting or rejecting it. If the offer is particularly badly drafted then the offeree may send a “without prejudice save as to costs” or “Calderbank” letter to advise that no offeree could reasonably be expected to accept such a badly drafted offer and make a counter-offer. This puts the pressure back on the offeror to reach an agreement based on the offeree’s clearer terms. The offeree could not rely on the ambiguity of the offer if they did not reply within 7 days of the offer being made to advise that it wasn’t clear enough to be accepted. There is nothing to state within Part 36 that the offeror must provide the requested clarification, however the offeree can request that they do so under CPR 36.8(2), although a refusal to provide clarification will be a factor that the court considers when making the usual costs order.

If the offer is not accepted, it will need to be frequently reviewed to assess whether it should remain on the table or whether it should be revised or withdrawn. Unless it is a time limited offer, the offeree can accept the offer at any time prior to trial unless a notice of withdrawal has been served on the offeree. It is important to withdraw the offer as the case progresses if the offeror’s circumstances change. If subsequent offers are made and the original offer has not been properly withdrawn then the offeree is entitled to accept the original offer regardless of the further offers being made.

Once a Part 36 offer has been accepted, it cannot be withdrawn or revised (pursuant to CPR36.9(1)). This is with the exception of the following circumstances; if the claim is by or against a protected party, then the court has to approve the claim even if it has been accepted by the protected party. In the event that the offer had an obvious mistake in it and the offeree appreciated this at the time of the acceptance, this can invalidate the offer.

Time-limited Part 36 offers came into force under the revised Part 36 on 6th April 2015. The advantage of a time-limited offer is that it puts the offeree under pressure to accept the offer but the disadvantage is that if not accepted within the expiry period, then the offer will be automatically withdrawn and will not have the same Part 36 consequences on the offeree. The court will “have regard” to the offer when assessing the costs in the matter, but no more than that.

For further advice and assistance please contact our Litigation and Dispute Resolution team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

The Land Registry is the platform responsible for the registration of title to land in England and Wales. The Land Registry hold information on registered properties in relation to the ownership of the land and any registered rights of way, covenants, leases and title extent.

After a house purchase is completed, the Buyers’ Solicitor send the application to the Land Registry to update the deed to reflect the new owner’s name. The Land Registry website is a public platform that stores the electronic deeds. Of course, there was a time when this platform did not exist and so all deeds were in paper format. The deeds were often held by mortgage lenders with an open account. It then became compulsory to register properties at the Land Registry, but this was only triggered when a transfer of value initiated this. If a property has not been transferred for value since this date, it is possible that the property is “unregistered” meaning that the deeds are still in the paper format.

This slightly changes the conveyancing process as we do it today, we usually download the deeds from the Land Registry which means that we can often check who the registered owner of the property is almost instantly. If the Land Registry hold no records, then we require the Seller of the property to be able to find the original deeds. It is common for several different deeds to be needed to make up the full original deeds.

There are two ways this can be approached by conveyancers, the first would be to issue an unregistered contract to the Buyers’ Solicitors. This just means that the format of the Contract itself and the accompanying documents slightly vary. The rest of the process shouldn’t change much, the questions being raised by the Buyers’ Solicitor will make reference to it being an unregistered contract and the Buyers’ Solicitors will need to submit for first registration at the Land Registry following completion.

The other option is to register the property before issuing the contract so that the rest of the process is the same as normal. The Sellers’ Solicitors would still require the original deeds to be able to do this and would have to wait for the Land Registry to register the property before starting the transaction. Due to there being an ongoing sale, the Sellers’ Solicitors can them apply to expedite the registration so that it does not cause too much delay in the process.

Once the house purchase has completed, the application is made to the Land Registry to update the register with the new owners details.

For further advice and assistance please contact our Residential Property team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk