Tenant lied about receiving S8 Notice hearing adjourned?

Reply to the comment left by Seething Landlord at 15/02/2023 - 10:39
I did point out that the tenant must have received the S8 notice as clearly the notification of the hearing had been received as she was at Court and both were sent to the same address.

I have now had some legal advice, they have said there is no getting around the issue of service with out evidence the tenant was aware of the S8 Notice (unless service is clear in the TA). The words were " If the judge takes a robust view and accepts the witness statement you might get lucky".

Reply to the comment left by I just want to sell up! at 14/02/2023 - 11:25
I once asked my solicitor about this, what if the tenants in arrears left the property without notice, he mentioned Debtor Tracing & Employment Tracing, these people can find out where the tenants live, and then we can serve them notice. Ask your solicitor/eviction companies. Good luck

When you say rely on the law of property act.

Do you mean you contracted out of the LPA and any document sent first class will be deemed served whether received or not?

If not:-Your photographic evidence needs to show your tenant being physically handed the notice. Showing you put it through the letter box will not suffice.

If it doesn't then you have lost. At the next hearing (assuming your tenant turns up) give him a new notice. Note time and place including the name of his solicitor if he watches it and start again. The case you quoted means if notice was sent to his last known address without permission of the court it's no good. Sorry not to have better news

Reply to the comment left by Seething Landlord at 15/02/2023 - 10:03
Yes an AST is an assured tenancy, I am not disputing that. But the case law being referred to is based on a secure tenancy issued by a local authority. Something a private landlord doesn’t have the power to issue.

A secure tenancy is NOT an assured tenancy, so I fail to see who the case is relevant.

Reply to the comment left by David Houghton at 15/02/2023 - 14:23
Thanks David, I have another S8 notice ready to be handed and a tracing service and process server if need be.

You mention without the Court's permission, any idea how to obtain this, can it be requested at the next hearing?

Reply to the comment left by Julie Ford at 15/02/2023 - 14:28
I guess you would need to dig deeper to establish why in the Enfield case it was common ground that proof was needed that the notice had been brought to the attention of the defendant, or as suggested in the handout that I referred to previously, "came into the hands of" the tenant.
( https://www.hlpa.org.uk/cms/wp-content/uploads/2019/05/HLPA-Handout-Sarah-Steinhardt-March-2019.pdf ).

Have you followed through the argument developed in the handout and its conclusion, which seems to be consistent with the legal advice now obtained by the OP?

In the Enfield case, Hirst LJ states:

"In 1994 the plaintiff discovered that the first defendant was no longer living at the premises and had, therefore, lost the protection of the Housing Act 1985, in that although a contractual tenancy subsisted it was no longer secure and could be determined by notice to quit. The plaintiffs were unaware of the first defendant's whereabouts and served a notice to quit addressed to him at the premises.

Thereafter they issued possession proceedings against both defendants.

In due course, in the Edmonton County Court, on 6 November 1995, Judge Tibber ordered that the present appellant, Myra Sutton, who was the second defendant in the case, should deliver up possession of the premises to which I have just referred. It is that decision against which leave to appeal is now sought.

The learned judge based his decision on two grounds. He recognised that in the normal course of events, as is common ground, a plaintiff who seeks to rely on a notice to quit must prove that it came to the attention of the tenant."

It therefore appears that at the time of trial the tenancy was no longer a secure tenancy so you cannot distinguish it on those grounds and would need to find some other reason to persuade the judge that the principle is not of general application.

Reply to the comment left by I just want to sell up! at 15/02/2023 - 15:13
You can make an application to the court, if you are lucky then it's explain to the judge. The alternative is to give it to the mum's solicitor (not barrister) if he turns up. He doesn't have to accept it. Or he may just send counsel.

As regards costs, it would be unlikely the judge would make cost order in this case. But no guarantees. If you have everything in place there's nothing stopping you from going down S21 and accelerated proceedure. It may save some time. You could also negotiate a surrender mum is still liable for the rent arrears and under CPR part 6 you can serve at the last known address. (Again you may need to put in an application order without a hearing to get permission). A money judgement against mum with the threat of seizing a chunk of her weekly pay packet may be sufficient leverage

Reply to the comment left by I just want to sell up! at 14/02/2023 - 11:25
Surely if the tenant doesn't live there then she can be classed as having abandoned the property? I would have thought this would be enough to get an order. As far as her children are concerned I thought you wouldn't be able to throw them out but they would technically be on a rolling contract and they could be served. They seem more willing to accept papers. It just seems weird that people can just occupy your property and there's nothing you can do about it. I refuse to be a landlord any more. Gave that up about 9 years ago. Thank god

PS check again whether your tenancy contains a contractual method of service. I would expect this is a professionally drafted tenancy even one bought of the ne

If so you only need to draw the judges attention to this clause

I haven't read all the responses so forgive me if this point has been made previously. The judgment in that case seems to turn on the fact that judge was using the common law rather than statute. section 196 of the LPA 1925 says that a notice is deemed to be served if it is sent to the last known address by ordinary post and hasn't been returned. If you put a return address on the envelope and the letter wasn't returned then you can give direct evidence of that. The fact that a 3rd party has told you that the notice has been received and read is, I'm afraid, not going to help you. There are some cases on a different area of law where notices don't have to be read or seen by the recepient (severence of a joint tenancy) so long a service can be proved or is deemed to have occured. I can't understand why the judge relied on this case and not the statute which is very clear. I suspect that the judge has misunderstood the case (which is not unheard of!) or didn't explain why the statute couldn't be applied in your case (it applies in most cases)