Tenant 'wants to settle' just before hearing- accept?

[Florrie]

I wonder if anyone can offer any thoughts on this.
After a lengthy struggle I have a court date of 14 Jan 2009 for a possession hearing, on behalf of my 98 year old aunt after issuing a section 8 to an assured tenant. She IS signing for everything herself and would be at the court in person.
She has 2 mandatories with proof. (Rent arrears of more than 8 weeks and substantial renovations) She also have 4 discretionaries.
The tenant has tried all sorts, claiming compensation under the disrepair protocol, which came to nothing, being one.
His solicitor who I think can not get public funding to assist him in court as there is not sufficient chance of success under the scheme says that they 'will be seeking directions from the Court to deal with their clients defence'
What could this be?
The solicitor also says ' we estimate it may take some months for the Court to make a final decision in relation to this matter'

Could this be likely?

They want to settle and have asked for a sum of £1000 to over a bond and rent in advance for a new property but on the basis that he would be able to move out by the end of January.
The letter of course is without prejudice.

Now she would gladly pay the £1000 to get him out (despite the fact that he has completely trashed the place and owes £2635 in rent.)
But if she agrees and the court date comes and goes and he changes his mind she will be back at square one.

Any thoughts or advice would be appreciated.

[Preston]

His solicitor who I think can not get public funding to assist him in court as there is not sufficient chance of success under the scheme says that they 'will be seeking directions from the Court to deal with their clients defence'
What could this be?
The solicitor also says ' we estimate it may take some months for the Court to make a final decision in relation to this matter'

Could this be likely?

They want to settle and have asked for a sum of £1000 to over a bond and rent in advance for a new property but on the basis that he would be able to move out by the end of January.
The letter of course is without prejudice.

Now she would gladly pay the £1000 to get him out (despite the fact that he has completely trashed the place and owes £2635 in rent.)
But if she agrees and the court date comes and goes and he changes his mind she will be back at square one.

Any thoughts or advice would be appreciated.

Hi

I dont know the background, but this sounds very much like their solicitor is trying to frighten you. It is quite possible that the January date will simply be a directions hearing - where the judge gives instructions to both parties on submitting their respective cases - its difficult to say without knowing what you have submitted to date and what the tenant has said by way of defence. Even if this does happen though, if your evidence is clear on the mandatory grounds there is no reason why a decision on possession should take several months unless your local court is particularly clogged up.

The "settlement" they are offering you also seems to be very large - effectively writing off arrears of £2,365 and paying an additional sum of £1,000. They would need a very substantial cause of complaint to get anywhere near this by way of counter claim. What do you think would be the basis of their claim?

I could be talking a load of nonsense, but my inclination would be to tell them no deal. If you really want to settle, offer that if they move out by the court date, you will withdraw your arrears claim - without prejudice of course - and dont actually withdraw anything until they have moved and given you possession.

Good luck

Preston

[Florrie]

Hi

I dont know the background, but this sounds very much like their solicitor is trying to frighten you. It is quite possible that the January date will simply be a directions hearing - where the judge gives instructions to both parties on submitting their respective cases - its difficult to say without knowing what you have submitted to date and what the tenant has said by way of defence. Even if this does happen though, if your evidence is clear on the mandatory grounds there is no reason why a decision on possession should take several months unless your local court is particularly clogged up.

The "settlement" they are offering you also seems to be very large - effectively writing off arrears of £2,365 and paying an additional sum of £1,000. They would need a very substantial cause of complaint to get anywhere near this by way of counter claim. What do you think would be the basis of their claim?

I could be talking a load of nonsense, but my inclination would be to tell them no deal. If you really want to settle, offer that if they move out by the court date, you will withdraw your arrears claim - without prejudice of course - and dont actually withdraw anything until they have moved and given you possession.

Good luck

Preston

Preston. Thank You.
Here's a little more.

The N119 and N5 was issued on the 2nd Dec and both I and the tenant I got copies back on the 4th Dec with the court date.
To date it does not seem he has submitted a response to the court and it is over the 14 days allowed. The letter requesting settlement from the solicitor is dated the 17 Dec.
I imagine his counter claim would be under disrepair.
A flat roof in the kitchen had failed and my aunt paid £1000 paid to have it repaired. He kept the money and put lino over it, which of course was ineffective. The tenant was the adopted daughter and husband of my aunt and with her being elderly trusted that they had done the work.
It is understood that ultimately the responsibility for the finite life of a flat roof lay with my aunt and when the tenant, through his solicitor, issued a Disrepair Protocol notice my aunt paid again, this time directly to a roofer who repaired the roof on the 31st Oct.
The tenant refused the roofer access to make good the inside ceiling.
On the 17th Nov I disputed the protocol within the 20 days and asked for a letter of action if the solicitor thought it was appropriate and have heard nothing.
The evidence I have to support the mandatory is quite clear.
Bank statements etc proving arrears.
A breakdown and letter from a contractor detailing the extent of the substantial renovations which could not be done with the tenant in situ.

My aunt has no money whatsoever (I am paying for the renovations and would be paying the £1000 which I will recoup as and when the house is sold)
The rent she charges the tenant which housing benefit pays (£65 for a 3 bedroom house!!!) does not cover her own £67 rent for a sheltered flat and £71 council tax which she has to pay as she has this house.
She is seriously in financial hardship because of this, he knows, but has kept the housing benefit frequently and not paid his rent.

I have had all my dealings with the solicitor checked by a solicitor and up to date all has been in order.

[Preston]

Hi Florrie

I have just realised, I think we corresponded on a different site about this a while ago, before you had started proceedings?

Anyway, you seem to be doing well guiding your aunt through the process. Its difficult enough when you are acting for yourself, but I imagine it can be even more stressful helping an elderly relative deal with such a difficult problem.

On the repair issues, they do seem to be particularly complex. If I have understood what you have said correctly, all parties agree that repairs are required; however, if your tenant does counter claim for disrepair your argument will be that a ) you have responded properly to all repair requests, but that the tenant has either failed to carry out agreed actions (namely, apply monies you have supplied towards effecting a proper repair) or has not allowed reasonable access for you or your agents to carry them out; and b ) that the general condition of the property is commensurate with its age, character, prospective life and locality (s11(3) of the Landlord and Tenant Act 1985). What the latter means is that there is no general obligation on landlords to ensure that any property they let is "in good condtion" - rather, it must meet the test laid down in section 11. You will be able to assess your position better when and if the tenant eventually submits their defence and/or counterclaim. Unfortunately, the fact they havent done so already doesnt mean that they wont or cant do so right up to the date of the court hearing.

With regard to ground 6, I dont have any direct experience of proceedings in relation to this ground. I will have a look during the the week to see if I can come up with any case law that might be relevant, just out of interest, but I do know that I were hoping to rely on this ground I would seek specialist advice. I am glad, therefore, that you are in touch with a solicitor.

The good news is that you have ground 8. This should be much more straightforward to prove and as you have pointed out is a mandatory ground. You may not want to consider this at this stage, but if the evidence for this ground is clear cut I would be inclined to rely on this one and consider steering clear of ground 6.

On the basis of the additional information you have provided, my inclination would still be to reject their "offer", but I would obviously want to keep this under review as things develop.

It will be interesting to hear the views of others, particularly those with more experience of ground 6.

Preston

[Florrie]

Hi Preston
Yes you are right and your advice then was just as valuable.
I really appreciate your time over this and also your encouraging responses.
Many thanks.

[Paul Gibbs]

To rely on ground 6 you usually need compelling evidence.

You need to convince the court it is not just a whim, but a real intention to demolish and rebuild. Prepare a witness statement, and attach copies of any architects drawings, quotes you have accepted from builders to do the work, permission from Local Authority, etc etc

T may also want proof from you that you can afford the work, and that works are going to start in a reasonable time after T vacates.

[Preston]

Hi Florrie

Had a quick look today and dont really have anything major to add to what Paul Gibbs has said above I'm afraid.

Ground six is described in Housing Law and Precedents as "the most complicated of the mandatory grounds for possession". Most of the case law is a "read across" from commercial tenancies. The landlord must show an intention to do the work, the means (such as financial) and the ability. With regard to the latter, it is not absolutely essential to have any necessary statutory consents in place (such as planning consent, where relevant), but it is advisable to do so, or at least to be able to demonstrate that consent is likely to be given.

As you have already pointed out, you also need to show that the works cannot be carried out unless possession is given. This implies that the works will be very significant indeed. Just to give you an idea, in my working life we regularly replace whole bathrooms and kitchens, carry out rewires etc, all with the tenant in situ. The key is experience and planning. The only time decants are required, usually, is when internal layouts are being changed substantially. I only mention this because your builder may need to demonstrate with some work scheduling evidence that the work really cant be done with a sitting tenant, rather than simply give an opinion.

Anyway, sorry to sound pessimistic on ground 6, but its best to be prepared! And with Ground 8, you should be fine in any case.

Preston

[Florrie]

Thanks again Preston. Your advice as always. Spot on!
Things have moved on.
Tenant from hell has found a flat (across the road) and according to his Grandaughter will move before 13th Jan. The court date is the 14th so if I don't have the keys by then I can carry on. I know that as a precaution I should send him and the court the necessary things they need a few days before.
Also I will not hand over any money till I am sure and get him to sign a disclaimer to say that he won't be pursuing any claims either existing or in the future. If he refuses to sign then I just go to court.
My aunt is weary and wants it all over. The builder says he can start almost immediately.
She wants to see the house renovated while she can.
Thanks to you all and have a good Christmas and New Year!

[Florrie]

Update!

Well the tenant from hell signs his new agreement for his new place and collects the keys on saturday! I have given him 3 days to clear his stuff out (it's only across the road) and take the keys from his grandaughter on the 13th! The day before the court case.
Now my question is how do i cancel the court hearing the day before? Do I just ring the court or must it be in writing?
Many thanks to all to helped with with all this from the start!

[Preston]

Hi Florrie

Excellent news. I hope all goes well on 13th.

I'm not sure of the procedure rules on cancellation, but in my experience the court will accept a call the day before or indeed on the morning of the hearing.

Preston

[Paul Gibbs]

You need to decide if you want the hearing to go ahead to get a money judgment for the arrears etc - if so continue with the hearing anyway.

If you do not want the court hearing to go ahead you could write to the court explaining that the tenant has moved out and therefore can the hearing be vacated - they may also just accept a phonecall

[SALL]

You need to decide if you want the hearing to go ahead to get a money judgment for the arrears etc - if so continue with the hearing anyway.

If you do not want the court hearing to go ahead you could write to the court explaining that the tenant has moved out and therefore can the hearing be vacated - they may also just accept a phonecall

Btw change the locks as soon as you get possesion. Just in case they keep a set.