Leo, do you believe that the differing opinion of this landlords solicitor is a one-off or might their be other solicitors with this view? If so, and given the severity of the consequences in this case, will you be making any changes to the s21 tool to head-off possible future problems for customers?
2 Likes
David, I have followed this up with our legal team and they have said that the S21 tool correctly serves the notice and there is nothing that can be done to improve on this.
The solicitor was requiring further evidence of service in the form of a certificate of service signed by OpenRent. This is unnecessary as the landlord or solicitor can sign this themselves. They also have valid evidence of the notice being served as the Landlord is ccâd into the email attaching the notice and this is sufficient evidence to be used in court.
Interestingly, a quick trawl through the Internet in relation to serving a notice by email throws up a number of legal and specialist websites urging caution. They mostly suggest that although its probably valid with prior written tenant consent, it is open to challenge and should probably only be used as a back-up to other methods of service. This may be enough uncertainty for many lawyers provided through landlords insurance to recommend against continuing to the insurer.
1 Like
How are you getting on with this @Kerryn ?
Hi helpful fellow landlords, I submitted the paperwork to the county court myself on 28th June. I have received no defence from the tenant (as expected) so I am expecting/hoping to be granted the possession order next week.
The solicitor refused to budge on their position and instead offered to resubmit a section 21 notice on my behalf with the requisite additional 2 months notice period which I find wholly unacceptable.
Regardless of who is right and who is wrong, @LeoP I would point out that this situation is highly likely to arise again, where an insurance-appointed solicitor will insist on the same course of action or refuse to go ahead with the claim, therefore this is a fundamental flaw in your service and should be re-examined as a matter of urgency.
@David122 it is indeed a clause in the contract that notice can be served via email, perfectly legitimately (hence ORâs notice serving tool online) and if solicitors are taking issue with it, where does the fault lie? I will be formally complaining to OR, the insurance company and the associated law firm, when I have the time and energy and hope this thread serves as a warning to others.
If I had known I would end up making the court claim myself, I could have done it an entire month sooner, without all the back-and-forth and solicitors delays, and potentially already have the house back. Iâm hoping the tenants will be out by the end of the month and Iâm making plans to get it on the market straight away. And here ends my career as a landlord. Good luck everyone and thanks again for your help!
2 Likes
The issue here may be the email address its sent from. My understanding is that a notice is only valid by email if it comes from either the landlord or their agentâs email address. In this case, OR would be acting as the agent, so it should be fine, but the solicitor may have wanted confirmation in writing from OR that they are acting as agent and the email came from their address in order to head-off any challenge at court.
I guess we will have to wait and see if this is a problem for other landlords, but one option might be for the tool to CC the landlord into the email and for the landlord to send a second copy from their email address.
1 Like
I hope OPEN RENT get this issue sorted for all Landlords.
Personally I never serve notices through one channel only.
I would usually serve
a) by email ALWAYS FROM my email on the contract
b) by a physical letter with proof of sending recorded
and optionally
c) if I live near to the address or need to do an inspection or other landlord visit additionally by hand delivery
belt AND braces is the order of the day for me. If doubt is raised about one method and evidencing it always have another up my sleeve!
I suggest all landlords take this approach regardless of what service they use.
Of course a single service of notice is sufficient.in law if there are doubts about its legality - but always better safe than sorry.
It seems in this case open rent has led a landlord into what seems to have been a potentially usafe method of notice. Hopoeflly they can up there game on this .
ALSO: If you change your email or home address or method of service make sure to post new details at the property and to send a notice to your tenants of this (keeping a record)
3 Likes
Can you give us an update on this? Iâm very interested to hear what the court said AND also what the solicitor said as a reaction to that!
Just to expand on this - if the tool correctly serves the notice, whatâs the problem with ticking and signing a box on the form to say that this has been done, if it is required?
Sure, the landlord could do it themselves - but it does leave a little ambiguity there for the courts that could be argued about as to who actually sent the email. Because if the notice was issued by OpenRent, it would be OpenRent who served the notice on behalf of the landlord.
OpenRent could even have a VERY easy âdownload proofâ button in your audit trail to auto-generate an N215.
I donât see why OpenRent would refuse to provide proof of service notice to a landlord in a format that is accepted by the courts, if necessary.
This topic was automatically closed 90 days after the last reply. New replies are no longer allowed.