Should I use a section 8 or a section 21 or both?

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    Should I use a section 8 or a section 21 or both?

    Hi, I have a problem with a tenant who I have heard is not intending to leave a flat I let to him on the 12th of next month which is the end of his 6 month fixed term assured shorthold tenancy agreement. Unfortunately we are late in issuing a section 21 notice which as I understand it will mean that when we do serve this notice on monday that we will still need to wait two months before we can start court proceedings to get him out. I am sure that he is breaking his tenancy agreement by smoking in the flat and he is at present a month behind with his half of the rent and I am confident he will not pay another penny in rent so what I am wondering is if I can prove his is smoking there can I issue a section 8 notice to him as well at the same time as the section 21b?
    The tenany is a joint one where the other party has already moved out (and left him) but is still paying her half of the rent, the agreement is being guarantored by his father who is being very helpful at the moment.
    Any suggestions or constructive comments would be very gratefully recieved.
    Can I serve both notices at the time? Also I read in one of these threads that in order to claim for back rent and damage against the flat I will need a section 8 anyway, is this right?
    This is our first tenancy and so we obviously have made some mistakes!

    Thanks

    Charlie

    #2
    A tenant is under no compunction to vacate the property at the end of the fixed term of his AST as would be the case with a commercial lease. His tenancy automatically becomes "statutory periodic" and he can remain, provided of course that he continues to pay rent. A section 8 notice can only be used if he is two or more months late in paying his rent. (If, as is usually the case, he is required to pay his rent in advance, then the notice cannot be served until the rent remains unpaid for over 1 month). This action only requires two weeks to elapse before commencing the court procedings, but if the arrears are brought below two months by the time of the court action, then it will fail. On the other hand, a S21 action may need 2 months notice, but provided the paperwork is correct, a possession order should be issued without the need of a court hearing. Most landlords, if they have rent arrears issue both S8 and S21 notices so that, should a S8 action fail, they have less time to wait before using S21 to get rid of such a tenant. Only in a S8 action can judgement also be obtained in regards to back rent. In the case of S21, a separate SCC action must be started.

    P.P.
    Any information given in this post is based on my personal experience as a landlord, what I have learned from this and other boards and elsewhere. It is not to be relied on. Definitive advice is only available from a Solicitor or other appropriately qualified person.

    Comment


      #3
      Thank you for your help

      Hi there, thank you for your help just one question for you. I would imagine that the most common reason to issue a section 8 is the non payment of rent but can I issue a section 8 for other breaches of the tenancy agreement such as smoking in the property when it is specified as not being allowed in the agreement? My intention was to issue on these grounds and then add other reasons as appropriate once the section 8 had been issued. I will certainly issue a section 21 as well to cover all bases. I have a six week deposit which will help in paying the back rent if I can get him out quickly.

      Thanks again

      Charlie

      Comment


        #4
        There are plenty of other grounds which can be cited under section 8 in order to evict a tenant. All these however are discretionary and the court will require suitable evidence in the form of witnesses or other forms that such breaches have occurred (cross examination skills required). Judges are also known to favour tenants when exercising their discretion. This may be due to the fact that landlords conducting their own cases don't do it very well and the judge feels that he must give the unrepresented tenant as much "benefit of the doubt" as he can. Anyway, if you want to use discretionary grounds, you would be well advised to use a legal professional to present your case.

        P.P.
        Any information given in this post is based on my personal experience as a landlord, what I have learned from this and other boards and elsewhere. It is not to be relied on. Definitive advice is only available from a Solicitor or other appropriately qualified person.

        Comment


          #5
          To prohibit a tenant from smoking is unlikely to succeed anyway let alone be a Ground for using S.8. If the tenant lied to you in that he told you he didn't smoke there's little you can do; it's his home and he can do what he likes that is lawful. Discretionary Grounds usually fail unless the tenant has be proved to conduct himself in a seriouly un-tenant like manner, and smoking doesn't even come close.

          You will be wasting your time and money going to court on such Grounds. Even a clause in the tenancy agreement prohibiting smoking will not succeed as it breaches the tenant's "yuman rights" to do so.
          The advice I give should not be construed as a definitive answer, and is without prejudice or liability. You are advised to consult a specialist solicitor or other person of equal legal standing.

          Comment


            #6
            Thats great thank you. A section 21 it is then.

            Comment


              #7
              Another question... do you have any helpful advice for beginnners on how to persue a scc for back rent along side a section 21 notice?

              Do the responsibilities of the guarantor with regards to paying for the unpaid rent extend to the periodic or are they limited to the ast? Assuming of course that we cannot get it from the tenants?


              Thank you thank you thank you!

              Comment


                #8
                Sorry! Yet another question. My tenant is quite wiley and I would bet that he will not answer the door to sign for a recorded delivered letter (ie the section 21) so it will be left to me to hand deliver. What would be your advice on how to do this? Do I need to have an independent witness to say that it was delivered through the door? I thought about asking a neighbour but I doubt they would thank me for including them in the situation, especially if there is a possibilty that they would be required to give evidence to a court.

                In the terms of the tenancy it states that if rent is unpaid for a period of two weeks then I can enter the property to assess the tenancy. Do I still need to give notice of this or can I just let myself in?

                Again thank you for your time and patience!

                Comment


                  #9
                  Originally posted by CHARLIEMAN View Post
                  Another question... do you have any helpful advice for beginnners on how to persue a scc for back rent along side a section 21 notice? You can't - it has to be separate.

                  Do the responsibilities of the guarantor with regards to paying for the unpaid rent extend to the periodic or are they limited to the ast? Assuming of course that we cannot get it from the tenants? If it says so in the guarantor agreement then yes, you should be able to recover it, but the wording of it is very important to be of use.

                  Sorry! Yet another question. My tenant is quite wiley and I would bet that he will not answer the door to sign for a recorded delivered letter (ie the section 21) so it will be left to me to hand deliver. What would be your advice on how to do this? Do I need to have an independent witness to say that it was delivered through the door? I thought about asking a neighbour but I doubt they would thank me for including them in the situation, especially if there is a possibilty that they would be required to give evidence to a court. Send one by RD and hand-deliver another, using a witness if possible. You could swear an avadavit if necessary if challenged in court if you don't have a witness.

                  In the terms of the tenancy it states that if rent is unpaid for a period of two weeks then I can enter the property to assess the tenancy. Do I still need to give notice of this or can I just let myself in? Don't enter the premises, as it could cost you time and a lot of money! Like £5,000 in damages possibly. You are entitled to inspect for repairs but still require the tenant's permission, so obtain it if you want to go in!

                  Again thank you for your time and patience!
                  Others might have a few suggestions too!
                  The advice I give should not be construed as a definitive answer, and is without prejudice or liability. You are advised to consult a specialist solicitor or other person of equal legal standing.

                  Comment


                    #10
                    Send one by RD but dont put the sticky label on it which states who it is from cos if the tenant sees it there is less chance of him signing for it. Also send one by normal post but get proof of postage from the post office (no cost). I sometimes also deliver one by hand as well and just put thro the letter box and have a witness then make note of time, weather, colour of door etc.

                    Every time i have been to court this has been plenty good enough for the judge.

                    The tenant will know you mean buisness if he gets 2-3 copies in one day.

                    Comment


                      #11
                      Once again thank you for your help and advice

                      Comment

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