Tenant gave notice and has stayed on after the end date of his notice

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    #16
    Originally posted by Lawcruncher View Post
    I do not see that section 144 is relevant. It is concerned only with the offence of squatting. However, I agree that CPR 55.21(2) rules out an IPO.
    I meant only that s144 rules out a criminal trespass claim similar to how CPR 55.21(2) rules out an IPO. Both have clauses in place to prevent their use against ex-tenants.

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      #17
      Originally posted by hybrice View Post
      I meant only that s144 rules out a criminal trespass claim similar to how CPR 55.21(2) rules out an IPO. Both have clauses in place to prevent their use against ex-tenants.
      Understood.

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        #18
        Originally posted by hybrice View Post
        Suffice to say, as it’s known to me, trespass claims cannot be brought against an ex tenant for “holding over” after a tenancy has ended, you still need to pursue via standard possession proceedings.
        That is what I was advised - the notice means nothing if the tenant remains

        Unshackled by the chains of idle vanity, A modest manatee, that's me

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          #19
          It doesn't mean "nothing". The notice mean the tenancy has ended, which mean you can apply for a possession order on that basis as opposed to having to serve your own notice first.

          Since the tenancy which was assured has ended, there's also nothing stopping you from waiting for the occupier to all go out, and then make entry, change the locks etc. to exclude them from returning.
          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.

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            #20
            Originally posted by islandgirl View Post
            A few years ago I had a notice from a tenant saying they were leaving on a certain date and ending the tenancy (in the form of a letter). They did not. I sought legal advice and was told there was nothing I could do and that I had to evict using S21
            I do not see how than can be right if the tenant's notice was valid.

            The key is section 5(2) HA 1988:

            If an assured tenancy which is a fixed term tenancy comes to an end otherwise than by virtue of—

            (a) [n/a]

            (b) a surrender or other action on the part of the tenant


            (c) [n/a]

            then [...] the tenant shall be entitled to remain in possession [...]


            An NTQ is "other action on the part of the tenant". So, if a tenant serves an NTQ, when it expires he is not entitled to remain in possession and must be a trespasser. You cannot bring any proceedings to end a tenancy because there is no tenancy to bring to an end.

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              #21
              As there is no tenancy to bring to an end, does that mean the best action is to apply for a Possession Order and is that a section 8?

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                #22
                I am in a similar situation as a tenant. As a joint tenant , I gave notice to quit to estate agent as I am on rolling contract. Though estate agent argued invalid notice as all tenants signatures needed argument initially, but after 14 days , he served S21 notice thorough solicitor.

                It seems estate agent consulted solicitor for with NTQ question and solicitor advised him to give S21 as estate agent concerned for rent from other tenants.

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                  #23
                  Originally posted by WPL View Post
                  As there is no tenancy to bring to an end, does that mean the best action is to apply for a Possession Order and is that a section 8?
                  It is not a section 8 because section 8 relates to "proceedings for possession of a dwelling-house let on an assured tenancy".

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                    #24
                    To follow up guys, I believe you CAN still apply for a possession order using the Trespass particulars of claim, you just can’t get an IPO. And obviously s21 and s8 wouldn’t cover this scenario.

                    In this case you’d apply for possession using the N5 possession claim form with a N121 trespass particulars of claim. It would follow the same process as any other possession claim, though I believe they get scheduled sooner under CPR 55.5, so you shouldn’t wait as long. You can also claim mesne profits against the ex tenant, just do not accept any rent from them in the interim.

                    IPOs are intended as emergency relief, they remove people who “more than likely” should not be on the premises before a proper hearing takes place. They are not suitable for ex tenants who may or may not have a valid claim for holding over, otherwise any landlord would apply for then to remove people without a fair hearing.

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                      #25
                      I can only quote what I was told by a professional! I wonder what would happen if the tenant stood up in court and gave a sob story about how either a) they were intimidated into writing the notice to quit or b) how their circumstances have changed and they now cannot possibly leave the property or they will be homeless???
                      Unshackled by the chains of idle vanity, A modest manatee, that's me

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                        #26
                        Originally posted by islandgirl View Post
                        I can only quote what I was told by a professional!
                        The amount of incorrect advice we hear about is concerning. I do not suppose it is any different from what it was, but it is still concerning.

                        Originally posted by islandgirl View Post
                        I wonder what would happen if the tenant stood up in court and gave a sob story about how either a) they were intimidated into writing the notice to quit or b) how their circumstances have changed and they now cannot possibly leave the property or they will be homeless???
                        It is open to any tenant to argue he was intimidated, but he is either going to need to prove it or be very persuasive. If a court finds that the tenancy has come to end and no new tenancy has arisen the court has no choice but to grant an order for possession.

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                          #27
                          Originally posted by hybrice View Post
                          POs are intended as emergency relief against trespass or squatting, I’d imagine the claim would be struck out on that basis and the Claimant told to pursue standard possession.
                          I bow to your experience, but there's no reason for the landlord to serve notice, they should be able to proceed straight to a possession claim.
                          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


                            #28
                            Originally posted by jpkeates View Post
                            I bow to your experience, but there's no reason for the landlord to serve notice, they should be able to proceed straight to a possession claim.
                            Yes, totally agree - sorry I may not have been clear. By standard possession, I meant "not emergency possession".

                            The tenancy has ended, s21 and s8 no longer apply, but an IPO is off the table due to CPR 55.21(2), which leaves only one thing. A standard possession claim against a trespasser using N5/N121. No notice is required for it, having already been given and served (in this case by the tenant). That said, the court would probably expect a Letter Before Action being served, even if only on short notice. One should be able to apply to the court using this method and cite CPR 55.5 to expedite the hearing - though how effective that'd be, couldn't tell you.

                            Islandgirl - I understand. I got told about 4 different things when going through this process with multiple solicitors who took me down dead ends. I ended up paying for a barrister specialising in property law to get things cleared up and the above is what worked for me. That's not to say a different judge won't feel differently about it on the day, but I don't personally see any other way. No other process/method applies.

                            IMPORTANT** - Based on the update in the below post, the above may no longer be valid and I'd suggest you speak to a solicitor specialising in the relevant law before doing anything.

                            Comment


                              #29
                              Interestingly, N121 was updated in February of 2021 and now includes this line:

                              "2. The defendant(s) (has)(have) never been a tenant or sub-tenant of the land."

                              Wonder if they did that to reduce landlords' avenues to get rid of ex-tenants during COVID?

                              Now, I don't know whether that's a complete bar on using it against a tenant, but it seems like it might be.

                              So maybe it does now revert to s21. Which is bad for a number of reasons.
                              1. If you messed up any paperwork, you're completely stuck with no remedy
                              2. Issuing a s21 to someone whose tenancy has ended, in my view, might bolster any claim that they have a new tenancy

                              You are entitled to 2x rent whilst he's there beyond his tenancy, maybe the threat of that legal action and costs might be enough to get him out? The below article also describes how to handle a s21 if you issue one, so as not to prejudice any future possession claim.

                              https://landlordlawblog.co.uk/2016/0...otice-leaving/

                              Comment


                                #30
                                It cannot possibly "revert to s21". There is no tenancy, never mind an assured shorthold one. A notice pursuant to s21 of the Housing Act 1988 is thus meaningless.

                                Either a claim N5/N119 if you want a possession order that can be exectued by a bailiff, or exclude the occupier yourself without use of force or threat.
                                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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