Agents fouled-up Tenancy Agreement/Notice to Quit

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    Agents fouled-up Tenancy Agreement/Notice to Quit

    This is just to pick your brains on a 6 month short term contract.

    Im the landlord and use a letting agency to fully manage the property.
    The new tenant in the property was 2 weeks late in his 1st month in the property paying the rent, and is now 28 days overdue on the 2nd months rent which means on the 1st Jan 09 he will owe 2 months rent.
    Not quite sure why it was not setup as a direct debit.

    The problem is no matter what time of day or night I or the letting agents go round to see the tenant he is never in and never returns phone calls/letters/texts etc even though his car is sometimes there and other times its not, so he is obviously using the property.

    Ive told the letting agents I want the tenant out as this is totally unacceptable.
    They have told me they can according to UK Law only put in the Contract the following terms which I find unfairly biased in the tenants favour.
    • I can only give him notice to quit after 15 days being late with the rent (Ive no problem with this)
    • I must give him 2 months to quit the property regardless of circumstances even after waiting 15 days for non payment of rent ie 2 and a half months in total
    • They can only take 1 months rent off him as a deposit


    As you can see this then means that the tenant can stay there for 2 and a half months without paying any rent and I only have 1 months rent as a deposit to use as the rent and this will also have to cover any possible damage.

    I know this is too late now as its being signed but I find it extraordinary that according the the letting agents that this must be included in any contract.

    My question is,
    is this factual or are the letting agents incorrect as I thought you could include anything in a Tenancy agreement as long as it is not unfairly biased towards either party.

    Thanks

    Roy.

    #2
    Originally posted by royp View Post
    This is just to pick your brains on a 6 month short term contract.

    Im the landlord and use a letting agency to fully manage the property.
    The new tenant in the property was 2 weeks late in his 1st month in the property paying the rent, and is now 28 days overdue on the 2nd months rent which means on the 1st Jan 09 he will owe 2 months rent.
    Not quite sure why it was not setup as a direct debit.

    The problem is no matter what time of day or night I or the letting agents go round to see the tenant he is never in and never returns phone calls/letters/texts etc even though his car is sometimes there and other times its not, so he is obviously using the property.

    Ive told the letting agents I want the tenant out as this is totally unacceptable.
    They have told me they can according to UK Law only put in the Contract the following terms which I find unfairly biased in the tenants favour.
    • I can only give him notice to quit after 15 days being late with the rent (Ive no problem with this)
    • I must give him 2 months to quit the property regardless of circumstances even after waiting 15 days for non payment of rent ie 2 and a half months in total
    • They can only take 1 months rent off him as a deposit


    As you can see this then means that the tenant can stay there for 2 and a half months without paying any rent and I only have 1 months rent as a deposit to use as the rent and this will also have to cover any possible damage.

    I know this is too late now as its being signed but I find it extraordinary that according the the letting agents that this must be included in any contract.

    My question is,
    is this factual or are the letting agents incorrect as I thought you could include anything in a Tenancy agreement as long as it is not unfairly biased towards either party.

    Thanks

    Roy.
    Your letting agents have got some things wrong here, which is a worry. They should know about the law relating to Landlords and Tenants - it's what you pay them for. Normally, yes, they would have to give your tenant 2 months notice of your requirement of possession, (by serving a section 21 notice at least two months in advance), and the earliest you could have the property back would be the end of the sixth month of an AST. However, if the tenant does not pay rent, you can apply to the courts to get them out earlier.

    On 2nd January (ie when the tenants owes you two months' rent) - but not before - you can serve a section 8 notice (see Agreements section on this site) which is effectively an eviction notice because of non-payment of rent. You apply to the court for a possession order - trawl 'section 8 notice' to find out how the process works. Or tell your agent to. You will need to put in a claim at the same time for the rent owed.

    As far as the deposit goes, it is usual to take about the equivalent of one month's rent (although it can be more), but it should have been protected in a Deposit Protection Scheme -was it?) and the contract should specify whether or not it may be used to cover unpaid rent or not. What does the contract say about the deposit?

    Please note that you cannot give tenant notice to quit only 15 days after the first non-payment of rent (as your post seems to suggest).

    It would be unusual for you to be able to set up a direct debit to take out the rent automatically from your tenant's account; you are probably referring to a standing order, which most letting agents do insist upon; however, they only work if there is money in the account to draw upon.

    If you continue to turn up day and night to try to catch your tenants at home, he may sue you for harassment, even if you are calling to ask for rent which he owes you. It seems pretty pointless in the circumstances; if you did catch him in, it seems unlikely that he would just hand over the money. You should continue to serve notices by registered post or email so you can prove he received them; apart from that, all you can do is let the legal process take its course, read up on the Landlord and Tenant Act (and think about changing your agents).
    'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

    Comment


      #3
      Thanks for the quick reply Mind the gap I appreciate the benefit of your experiance.
      The deposit is held in the TDS.
      Good points re going round the property, not that Ive ever seen the chap concerned, but good point, just frustrating having to pay the mortgage myself.
      Once the 2 months rent is overdue ie Jan 2nd 09 what is the min time before court proceedings can proceed and how long would you guesstimate I can reasonnably expect to gain possession.
      I do have legal protection, just fell at an awkward time during the xmas holidays to call anyone.

      Comment


        #4
        Originally posted by mind the gap View Post
        Please note that you cannot give tenant notice to quit only 15 days after the first non-payment of rent (as your post seems to suggest).
        This is not quite so. L can serve a Notice under s.8 of the Housing Act 1988 if any rent at all is unpaid. However, initially only ground 10 is applicable and it is discretionary. Once the amount unpaid is (or exceeds) two months' rent, ground 8 kicks-in too (and is a mandatory basis- the Court cannot refuse a Possession Order, binding T immediately).
        JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
        1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
        2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
        3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
        4. *- Contact info: click on my name (blue-highlight link).

        Comment


          #5
          Originally posted by royp View Post
          Thanks for the quick reply Mind the gap I appreciate the benefit of your experiance.
          The deposit is held in the TDS.
          Good points re going round the property, not that Ive ever seen the chap concerned, but good point, just frustrating having to pay the mortgage myself.
          Once the 2 months rent is overdue ie Jan 2nd 09 what is the min time before court proceedings can proceed and how long would you guesstimate I can reasonnably expect to gain possession.
          I do have legal protection, just fell at an awkward time during the xmas holidays to call anyone.
          I don't have direct experience of this but read P.Pilcher's post in this thread:

          http://www.landlordzone.co.uk/forums...ad.php?t=15690

          Other threads on the same subject seem to suggest the time scale can vary depending on how busy/efficient your local courts are.
          'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

          Comment


            #6
            Originally posted by jeffrey View Post
            This is not quite so. L can serve a Notice under s.8 of the Housing Act 1988 if any rent at all is unpaid. However, initially only ground 10 is applicable and it is discretionary. Once the amount unpaid is (or exceeds) two months' rent, ground 8 kicks-in too (and is a mandatory basis- the Court cannot refuse a Possession Order, binding T immediately).
            Thanks, Jeffrey, that's interesting - but would there ever be any point in doing that, in practice? Who would do it, when for the sake of a few weeks, they could go for ground 8 which as you say is a mandatory ground?
            'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

            Comment


              #7
              Originally posted by mind the gap View Post
              Thanks, Jeffrey, that's interesting - but would there ever be any point in doing that, in practice? Who would do it, when for the sake of a few weeks, they could go for ground 8 which as you say is a mandatory ground?
              Depends on T's position financially and often re possibility of public-sector rehousing on grounds on involuntary homelessness.
              JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
              1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
              2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
              3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
              4. *- Contact info: click on my name (blue-highlight link).

              Comment


                #8
                Thanks for the points above I really do appreciate your time and the benefit of both your experiances.
                Ive just spoken to the letting agent.
                This chap (the tenant) works as a contractor from Ireland touring all over the UK for various Electric companies fitting the overhead power cables, the letting agents have also tried contacting him via his employers which was a fruitless exercise.
                In October 08 he agreed VERBALLY for the contract to be drawn up so that he would be moving into the property on Nov 1st 08 on a fixed 6 month let.
                However for what ever personnel reasons he had, he never actually took possesion until Nov 10th 08 but he was still happy to sign the contract which stated he took possesion on Nov 1st 08 as he did agree on Nov 10th that he did agree to take the property on Nov 1st 08 so the property was empty waiting for him to move in.
                He paid 1 months rent on the 10th Nov which was to cover from Nov 1st to the end of the month and thats all he has paid to date as it is simply impossible to contact him.

                Because of this slight discrepancy with him taking PHYSICAL possesion on Nov 10 and signing on Nov 10th to say that he took possesion on Nov 1st Ive asked the Letting agents to hold off with the section 8 Ground 8 until Jan 11th 09 as I do not want the courts to turn round and say he did not actually sign the contract until Nov 10th even though it was dated that he agreed to take possesion on Nov 1st.

                Does this sound like the sensible option for the sake of an extra week to play on the safe side or will it not matter.

                Comment


                  #9
                  What counts is not so much:
                  a. the actual arrival of T and his physical possession of the property; but rather
                  b. the date of the Tenancy Agreement and (if different) the date on which it states that the tenancy actually commences.
                  JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                  1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                  2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                  3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                  4. *- Contact info: click on my name (blue-highlight link).

                  Comment

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