How best to deal with an overstayer-LL granted possession order

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    How best to deal with an overstayer-LL granted possession order

    Hi,
    I wondered if you could offer some advice about steps to take, now that the T has told us that they wont be leaving on the date set by the court when they granted us an APO?

    In particular I am interested in finding out whether S1 of the Landlord and Tenant Act 1737 would apply? Yes the tenant has been in the property longer than a year, they are in no doubt that they do not have claim to the property and they are very much aware of the Possession order.

    Does anyone have a template or something with the wording they would use in correspondance to the T, should S1 be applicable in our situation.

    It is understood that the T is awaiting housing by the council that has not finished being refurbished yet and no clear date in sight. The order has already afforded them 6 months over the intial s21 notice period.

    Thanks

    #2
    They do have a claim to the property - their tenancy continues, PO expiry does not compel them to leave.

    The PO needs to be executed by bailiff or HCEO. Get that booked and done!

    Why eviction? Arrears, damage? If so why should council help him please?
    I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

    Comment


      #3
      Originally posted by theartfullodger View Post
      They do have a claim to the property - their tenancy continues, PO expiry does not compel them to leave.

      The PO needs to be executed by bailiff or HCEO. Get that booked and done!

      Why eviction? Arrears, damage? If so why should council help him please?
      Bailiffs are being booked today as PO expired friday midnight, so couldnt really do much over the weekend.

      Arrears- well final rent paid up until friday
      Damage-yes
      Why are council helping so much ?- your guess is as good as mine- probably because the T is so militant!

      We require property back for family member to reside in.

      I thought that the official tenancy agreement ended when we served a section 21?

      In addition to that now, we have been granted possession of the house as of friday gone, which we dont have as tenant not leaving.

      So what do we do about charging something 'mesne promise' etc for period inbetween either the bailiffs evicting (which could be months!) or the Tenant leaving of their own free will?

      Comment


        #4
        Tenancy continues until an expired PO is executed by Bailiffs or HCEO.

        All rights for both tenant and landlord continue until then. So tenant has right to live there, Landlord still owed rent..

        Tenant may appeal PO up to when bailiff walking up garden path - and PO can be varied or overturned by judge.

        s5(1) of HA 1988
        http://www.legislation.gov.uk/ukpga/1988/50/section/5
        5 Security of tenure.

        (1) An assured tenancy cannot be brought to an end by the landlord except by—

        (a) obtaining—
        (i) an order of the court for possession of the dwelling-house under section 7 or 21, and
        (ii) the execution of the order ... etc etc
        "Execution" is bailiffs.

        &
        http://thedpsblog.com/the-deposit-pr...hold-tenancies

        "Mesne profits" apply if a tenant's valid notice expires but they stay. Has your tenant served valid notice please?

        Maybe some Landlord education?
        I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

        Comment


          #5
          Yes a valid section was served and when they did not leave, then went for accelerated possession order, which was granted

          Ok now the decision is to go for county court bailiffs or HCEO.

          I would welcome your opinion.

          Comment


            #6
            Did you ask the judge making the possession order for permission to escalate it to the High Court enforcement route?

            HCEO used to be much quicker, but the mechanism that they used to be quicker has been ruled not legal, so it may be that there's not as much difference between the two.
            The main difference is that county court bailiffs are limited in number and HCEO's are commercial organisations who can scale to demand.
            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


              #7
              Not yet.....had an unexpected family emergency crop up today. The plan is to go with papers to the court tomorrow.

              Can you help me with which form it is for county court bailiff

              And if we decide to ask for transfer to HCEO what do we need to do for that?

              Am I right in saying we have to choose either or?

              Does anyone know about fees/costs for HCEO?

              Also can all these fees be added to the overall debt owed by T.

              Do we need to mention anything about deposit that's in a scheme. The house has been trashed and we shall require deposit and some to put right.

              Also I have read about asking for disclosure of earnings...is that worth doing at the same time?

              Sorry for all the questions. It's not been easy.

              Comment


                #8
                Originally posted by wildjasmine View Post
                Can you help me with which form it is for county court bailiff
                Sorry, I don't know that.

                And if we decide to ask for transfer to HCEO what do we need to do for that?

                Am I right in saying we have to choose either or?
                Only with the judge's permission.
                You might try calling and asking one of the HCEO companies.

                Does anyone know about fees/costs for HCEO?
                They vary.

                Also can all these fees be added to the overall debt owed by T.
                Yes, provided they are kept to a minimum.

                Do we need to mention anything about deposit that's in a scheme. The house has been trashed and we shall require deposit and some to put right.
                You can't do anything with the deposit until the tenancy is brought to an end (well, technically you can, but not without a compliant tenant).

                Also I have read about asking for disclosure of earnings...is that worth doing at the same time?
                You can't do that until a court has ordered someone to pay something and they haven't paid it.
                You will need to sue the tenant for what they owe you and win.
                Which I imagine you plan to do.

                Sorry for all the questions. It's not been easy.
                Feel your pain.
                Ask away.
                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


                  #9
                  Originally posted by wildjasmine View Post
                  I am interested in finding out whether S1 of the Landlord and Tenant Act 1737 would apply?
                  I cannot find that Act.

                  What does S1 say, and where did you find it?

                  Comment


                    #10
                    It's the 1730 Act, Mesne profits etc.
                    It's not relevant because the tenancy hasn't ended, the tenant hasn't served notice and they're going to be removed by bailiffs.
                    It's hard to imagine them managing to hold over.
                    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


                      #11
                      Information on mesne profits http://www.lexbiblio.co.uk/free-lega...nd-occupation/

                      Comment


                        #12
                        actual legislation for section 1 http://www.legislation.gov.uk/apgb/Geo2/4/28

                        note that if the tenant gives you notice and then overstays, its section 18 of this act that you want to be aware of.

                        Thanks

                        Comment

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