Confirmation that I can serve section 8

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    Confirmation that I can serve section 8

    Tenancy in England tenancy under an AST

    Tenant moved in on the 16/10/18

    Within the contract it states rent paid 2 months in advance and the tenant to pay the rent on or before the 15th of each and every month for the term of the agreement . Keeping 2 months in advance.

    Payment breakdown:

    1. 16/10/18 2 months cash (move in date)
    2. 15/11/18
    3. 15/12/18
    4. 15/01/19

    Can I serve a section 8 or should I wait until the 16/04/19 if the 2 months in advance could be challenged? By my calculations they have paid 5 times so that takes them up until the 15/03/19 absorbing the 2 months in advance. So in effect from the 16/03/19 they have not paid any rent and on the 16/04/19 they then are 2 months behind at that point or does the breach of 2 months in advance hold firm?

    BTW I offered the tenant early surrender (in their favour) which they didnt take and also served a section 21 which matures on the 15/05/19.

    Thanks

    #2
    To me, that sounds more like one month in advance and one month's deposit, which hasn't been protected.

    Comment


      #3
      Ask whoever recommended this daft payment scheme?

      Comment


        #4
        Originally posted by leaseholder64 View Post
        To me, that sounds more like one month in advance and one month's deposit, which hasn't been protected.
        Thats because that's exactly what it is.
        The section 21 should be invalid if the deposit hasn't been protected.
        And it's going to complicate any arrears based possession claim - particularly if the judge awards a deposit penalty to offset the arrears.

        When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
        Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

        Comment


          #5
          leaseholder64 deposit is protected
          JK0 couldnt run standard checks as tenant was from overseas, saw this as a safer way for me maybe I was mistaken? If it is going to cause problems then forget that clause in the contract and is section 8 valid from 16/04/19 ie the start of the 2nd month that they are in arrears.

          Comment


            #6
            jpkeates deposit is protected. Right to rent checks were carried out the checks I refer to were my standard landlord checks not the statutory ones. I normally use a insurance backed scheme for rent arrears however there are some strict criteria that is required which this person would not have passed it is these checks that I could not carry out
            Last edited by scoobydo; 07-04-2019, 10:53 AM. Reason: further information

            Comment


              #7
              When you say the deposit is protected, did you include half of the two periods of advance rental in that deposit?

              Comment


                #8
                No, the deposit was paid as a separate amount in instalments £50 at the start (DPS recently changed whereby you cannot print documents until there is at least 1 payment) then topped up monthly by the tenant until they eventually reach the deposit amount written on the contract (which they have not reached as they have stopped paying). Everything was done to aid moving the tenant in, who would not normally meet the requirements, appears like I have made a mistake in doing this? Appeared to be ok at the start had 2 months cash available, was paying on time and now it feels like I have done wrong :-(
                Last edited by scoobydo; 07-04-2019, 11:06 AM. Reason: added more detail

                Comment


                  #9
                  If the tenant paid two month's rent in advance and then started paying monthly rent in month 2, the second "month's advance rent" is a deposit and requires protection.
                  It is "money intended to be held (by the landlord or otherwise) as security for (a) the performance of any obligations of the tenant, or the discharge of any liability of his, arising under or in connection with the tenancy."

                  When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                  Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                  Comment


                    #10
                    I do remember reading that now many many years ago :-( opps. Wasnt meant in they way that is being inferred here and certainly was not in the spirit of when they moved in. So lesson learnt. How do I get out the mess I have created considering they are not paying rely on section 8 which maybe is now valid if I take what has been put above or wait until the 16/04/19 and then section 8 them. Got concerns now over the section 21 if it was indeed deemed as deposit.

                    Comment


                      #11
                      You may have to wait until the arrears are more than 5 months rent before you take a s8g8 to court, allowing for the maximum 3x penalty. Alternatively you could pay the tenant to leave

                      Comment


                        #12
                        You can return the month's rent/ deposit to the tenant, which would allow you to serve another s21 notice.
                        If you agree with the tenant to use the "extra" month to clear some of the arrears, that would count as returning it.
                        When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                        Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                        Comment


                          #13
                          I don't believe that the second months rent taken in month 1 is a deposit if the agreement says rent is payable monthly 2 months in advance with the first payment being twice the monthly amount. It is clearly an unconventional arrangement for when rent is to be paid (any given payment is associated with a specific rental period).

                          However, such an arrangement does cause end of tenancy problems both as seen here with uncertainty of validity of LL notice and with tenant leaving at end of fixed term.

                          Having said that, it seems to me that a S8G8 notice would be valid because the T is more than 2 months in arrears according to the agreed payment schedule.

                          Comment


                            #14
                            Originally posted by MdeB View Post
                            I don't believe that the second months rent taken in month 1 is a deposit if the agreement says rent is payable monthly 2 months in advance with the first payment being twice the monthly amount. It is clearly an unconventional arrangement for when rent is to be paid (any given payment is associated with a specific rental period).
                            .
                            I think the crux of it is that the 2nd month's rent is not due after two months, but after one month.

                            If the o/p's arrangement were really allowed, what is the point of the last 13 years of deposit protection legislation?

                            Comment


                              #15
                              A two month worth advance payment at the start of the tenancy where one month's worth is for the first month of the tenancy, and the other month is clearly stated to be for the last month of the [fixed term] tenancy are rent and does not need to be protected.

                              A two month worth advance payment at the start of the tenancy where the second month is for some unspecificed point in the future is a deposit and need to be protected.

                              For the s8g8, "if rent is payable monthly, at least two months rent [that's overdue] is unpaid", then the notice is valid other consideration notwithstanding. The problem is when it gets to court, if (when) the tenant counterclaim for a deposit protection penalty and offsetting that against rent arrears bring it down to less than two months, you then don't meet the other half of the requirement that it still be two months on day of court.
                              I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

                              I do not answer questions through private messages which should be posted publicly on the forum.

                              Comment

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