There's a right way â€“ and a wrong way â€“ to draft a notice
Simple errors often result in section 21 applications being returned; District Judge Heather Johns explains how solicitors can avoid these mistakes and the ensuing delays
A local charity tells
me that there is growing evidence
of unscrupulous landlords avoiding the court system
to escape the costs and time involved. I very much hope that we do not return to the days of the slum landlords of the 1960s.
Within court box work,
there will be applications for possession of a rented property, issued by a solicitor on behalf
of a landlord under an assured shorthold tenancy, using the accelerated procedure.
In this article I am not going to comment upon the difficulties that some solicitors have in using or drafting a valid section 21 notice, but upon the more straightforward issues which result in the application being returned to the solicitors, with delays ensuing, and which if followed may ensure their
client does not try to avoid
the court system.
You must include in the claimant box not only their
name or names but a full address. Pursuant to the Civil Procedure Rules (CPR) practice direction 16, this cannot be a c/o address, and it cannot be that of a letting agent or managing agent. The claim form must include an address at which the claimant resides or carries on business.
This paragraph applies even though the claimant's address for service is the business address
of their solicitor. If the defendant succeeds in defending the
claim, they are entitled to know at which address they can enforce
a costs order.
If the claim form does not show a full address, including postcode, at which the claimants and defendants reside or carry on business, the claim form will be issued but will be retained by the court, and will not be served until the claimant has supplied a full address, including postcode,
or the court has dispensed
with the requirement to do so.
Also on the first page of the claim form, tick the box if the claimant is asking for costs -
so often this is left blank, but
it should be completed for otherwise you may not obtain
a costs order.
You should cross out those paragraphs or those parts of paragraphs that do not apply
to your client's claim. It is poor draftsmanship not to do so.
Paragraph 5 of the claim form deals with service of the section 21 notice. Too many solicitors fail to comply with the direction and fail to provide proof of service (marked C1), often just lodging a copy of a Post Office notice of issue of a letter by recorded delivery.
When it comes to
paragraph 8, which addresses the postponement of possession on the grounds of exceptional hardship, it would be prudent,
I would have thought, to allow the district judge in your court
to deal with this issue on
paper. If you tick 'no' then the application shall be listed for hearing, and in many courts the waiting time will be far longer than the six-week period that
the defendant seeks in the response form (CPR 55.18).
The possession date may not
be longer than six weeks from the making of an order for possession, but remember that you will still have to issue your application for a warrant for possession and join the queue for a date of execution in the county court bailiff's office.
It is unlikely that your landlord client will be happy with the delay, so beware.
Paragraph 9 asks whether the claimant wants the property to be delivered up on possession and for the defendant to pay costs. This requires a tick, but
far too often one or other of the boxes is left blank, which means you and your client may not get the order you seek.
Finally, the statement of truth on the last page is often poorly completed: there is often a signature but one which is not identified. That alone could mean that the forms are sent back for amendment and re-service.
District Judge Heather Johns is president of the Association of Her Majesty’s District Judges