Hypothetical Section 21 question

[MrShed]

Hey all, was just thinking back to my days as a student tenant, and just wondered about two things:

1) When I was a tenant, we had year fixed term ASTs. However, we paid the rent in 10 monthly instalments, and didn't pay anything for the last 2 months - i.e. we paid 10 payments of 1.2 monthly rental. How woudl this affect the timescales required for Section 21, and the requirements for arrears prior to serving a Section 8? Would you need to be 2.4 months in arrears before you could serve a S8? It confuses me as there appears to be no fixed rental period as such, because for the last two months there are no payments. Maybe I am over complicating it though?

2) If a student tenant was to default on the rent, and the guarantor was successfully persued for the rent, could the guarantor successfully persue the tenant for the amount he has had to pay?

Thanks for all thoughts on this!

[Energise]

Hey all, was just thinking back to my days as a student tenant, and just wondered about two things:

1) When I was a tenant, we had year fixed term ASTs. However, we paid the rent in 10 monthly instalments, and didn't pay anything for the last 2 months - i.e. we paid 10 payments of 1.2 monthly rental. How woudl this affect the timescales required for Section 21, and the requirements for arrears prior to serving a Section 8? Would you need to be 2.4 months in arrears before you could serve a S8? It confuses me as there appears to be no fixed rental period as such, because for the last two months there are no payments. Maybe I am over complicating it though?

2) If a student tenant was to default on the rent, and the guarantor was successfully persued for the rent, could the guarantor successfully persue the tenant for the amount he has had to pay?

Thanks for all thoughts on this!

1) If the AST said rent @ £xxx per month then the rental period would still be monthly.


2) Yes

[MrShed]

1) If the AST said rent @ £xxx per month then the rental period would still be monthly.

And as such S8 and S21 timescales would be the same I assume? I kind of thought I might be overcomplicating it....was just a bit confused about it after it has been mentioned on another thread that accepting 6 months rent up front may cause the rental period to become 6 monthly, hence causing problems with S21 and S8.

[MrShed]

Namely, this thread:

http://www.landlordzone.co.uk/forums...ead.php?t=1184

[Energise]

Totally different question but Paul_f's answer to the question (see below) seems to imply that receiving rent in different amounts to the contractual agreement does not change it.

http://www.landlordzone.co.uk/forums...read.php?t=343

Regarding S.8 rent arrears does it have to be 2 complete rental periods in arrears or 2 rent payments (a month and a day?)

[MrShed]

Thanks Energise that seems to answer the question! My only further question would be then:

- What if in my AST it was contracted as saying rent is due in 10 monthly payments covering the years rent?

Presumably this would make the changes I have mentioned to the S21 and S8....however, would it be the rent payment amounts (1.2 months) or the rent payment timescale (varies from 1 month to 2 months, if the tenancy became periodic)?

[Energise]

Pass

[davidjohnbutton]

The whole point of a S8 repossession is that at the date of service of the notice, there must be 8 weeks or two months rent arrears (for weekly and monthly tenancies anyway), and that there must be the same arrears at the court hearing date - if these two components are complete, then the judge MUST make a MANDATORY possession order.

If the rent is payable in advance, which in most cases it usually is, then it counts as arrears if it is not paid. So if rent is due 1st each month and is not paid, then on 2nd of the month, you are a month in arrears - payment of rent by contract in 10 instalments instead of 12 does not alter that because the date specified as one of the payment dates is not complied with, it immediately puts the account one month in arrears - fail to comply with a second payment date, that makes it two months.

As for guarantors - yes, a guarantor can pursue the guarantee for anything they have to pay out as a result of the guarantee's default insofar as it is restricted by the wording of the written guarantee itself.

[Energise]

If the rent is payable in advance, which in most cases it usually is, then it counts as arrears if it is not paid. So if rent is due 1st each month and is not paid, then on 2nd of the month, you are a month in arrears - payment of rent by contract in 10 instalments instead of 12 does not alter that because the date specified as one of the payment dates is not complied with, it immediately puts the account one month in arrears - fail to comply with a second payment date, that makes it two months.

It just seems a bit strange that S.8 rent arrears apply at 29-32 days on a monthly tenancy but at 50 days on a weekly tenancy.

[davidjohnbutton]

Wrong Energise - S8 arrears on a monthly basis = 2x31 days = 62 days but could be up to 2 days less because the law works on a calendar month which not always 31 days.

S8 on a weekly basis = 8 weeks = 56 days as you say.

[Energise]

That seems to say the opposite of your first post, or I am mis-reading

Your first post seems to say it is a month in arrears if it is one day late.

(using 31 day months)

You are a month in arrears if it is 1 day late then surely it is 2 months in arrears after 32 days?

(weekly)

If it is a day late you are a week in arrears so after 7 weeks and 1 day (50 days) you are 8 weeks in arrears?

[davidjohnbutton]

I will try and explain Energise - basically you are correct IF the rent is payable in advance.

If I pay my rent monthly in advance on the first day of each month - lets for arguments sake say 1st January. I dont pay it, I am now one month in arrears with my rent. I also fail to make payment to you on 1st February - I am now two months in arrears with my rent and you can serve a S8 notice on me, and provided I keep this up (i.e. owing two months rent) by the time of the court hearing, the judge will make a mandatory possession order.

If I pay my rent weekly on a Monday in advance, and I miss paying week 1, 2, 3, 4, 5, 6, 7, and 8, I am now 8 weeks rent in arrears and you can serve the same notice on me and provided I am still 8 weeks in arrears at the hearing, the judge will again make a MPO.


In both cases, if I reduce the arrears to below the two months/8weeks level, even by a few pence, then the judge cannot make a MPO but he can make a discretionary PO which he can then suspend and he can also order costs against the tenant. It is quite common for tenants to do this trick of paying up at the last possible moment.

Is that a little clearer?