Possession Claim On Line (PCOL)- help re procedure

[tom999]

After the two months had expired, the tenant had still not moved out. He stopped paying the rent after August (the section 21 notice expired in October), so I thought I could use PCOL as a method to get rid of him.

If valid s.21 has been served, and expired, then apply for possession using form N5 or N5B (accelerated possession).

[adam1516]

I don't think I'm making myself quite clear enough here.

Let me start again - the PCOL notice is issued as grounds for possession if there are rent arrears.

IF the tenant pays the rent arrears, would the PCOL notice still be valid? Simple question.

[jeffrey]

I don't think I'm making myself quite clear enough here.

No, you're not. You told us that

A Section 21 was issued.

But ericthelobster told you that
you can't use PCOL then: that's for Section 8 only - which is what you use if using rent arrears as grounds for eviction (as per your first post).

Let me start again - the PCOL notice is issued as grounds for possession if there are rent arrears.

IF the tenant pays the rent arrears, would the PCOL notice still be valid? Simple question.

Please do start again. You served Notice under s.21; so unpaid rent is irrelevant. Yes? Geddit?

[P.Pilcher]

O.K. Let's try to further simplify matters:
It woud appear that you have used section 21 to tell your tenants that you want them to leave. This is a mechanism that a landlord can use to get rid of tenants without having to prove any reason in a court of law - the "no fault" mechanism. This is available to landlords who want their property vacated for absolutely any reason whatsoever. It requires that a reasonable period of notice is given to the tenant concerned - at least two months - and this notice cannot expire within the fixed term granted in the original AST.
Once the notice has expired, the landlord can apply to the local county court where the judge will study the paperwork in chambers and if it is correct a possession order should be forthcoming. You cannot use PCOL for a section 21 application and if your two month notice period has expired you should now be completing form N5A and sending it with the £150 fee and all other necessary documents to your local county court.
Now if you have a REASON for evicting your tenant, the notice period can be shorter. If said tenant has failed to pay rent due for a period of two months (in practice this means that he must have missed two rent payments so it is just over a month) then you need to use section 8 - a totally separate procedure. Now you can use PCOL if you wish, but be warned that if your tenant pays a portion of the rent owed to bring his arrears down to below two months, then the grant of the possession order is no longer mandatory. It will depend of the discression of the judge on the additional grounds 10 and 11 - persistent late or irregular payment of rent. You can however commence court action two weeks after the service of the section 8 (10&11) notice.

You are best advised to continue your section 21 action as described above and then claim for the unpaid rent with a separate MCOL action.
Please note what I say below with regard to the above "advice"

P.P.

[jta]

What people are trying to tell you is that a S21 is a 'no fault' demand for the property. Rent arrears do not come into it. You can get a court order to enforce the possession but there will be no order for rent arrears. If you want to pursue the arrears then use MCOL.

[tom999]

Originally I used section 21 as, like you say, a no blame solution after the six months had expired. I know I don't have to give a reason as to why I required the property back for a section 21.

Yes. s.21 if served correctly will give you mandatory possession. Continue with this route, by applying for possession using forms N5 or N5B.

After the two months had expired, the tenant had still not moved out. He stopped paying the rent after August (the section 21 notice expired in October), so I thought I could use PCOL as a method to get rid of him.

No. You cannot continue with s.21 procedure via PCOL, as others have implied.

If he pays off the arrears, is the PCOL order still valid?

Rent due is irrelevant if following the s.21 route.

[jeffrey]

..which is what I posted, albeit unwelcomed by OP.

[havensRus]

jeffrey, OP is probably looking for an answer that matches what he thinks or wants to do ... so didn't gettit!!

I don't think I'm making myself quite clear enough here.

Let me start again - the PCOL notice is issued as grounds for possession if there are rent arrears.

NO. PCOL is not used for issuing notices but for Court Claims.
To use PCOL, S8 Notice is first issued if there are rent arrears, on grounds 8,10, 11. Then, after expiry of the 2-week notice period of the S8, and if T still not paid, the court claim for possession is made using PCOL.

IF the tenant pays the rent arrears, would the PCOL notice still be valid? Simple question.

Once again, PCOL is not a notice to be served. If you served the S8, and the tenant pays the arrears, then fine, you don't have to go ahead with the claim which means you don't use PCOL. The S8 notice is valid for one year, so if T falls into arrears again, you could then issue Court claim via PCOL.

HOWEVER, you have already stated that you issued S21. Which is a no-fault possession notice. You CANNOT use PCOL to start the court process for a S21 notice, you need to send in the paperwork, which is Form N5B + relevant exhibits(documents) + £150 cheque made out to HMCS.

You can still go ahead with the S21 route to get possession, and then use MCOL to claim the rent arrears.

Alternatively, issue a S8 as I explained above.

HTH.

[Milton]

LHA tenant, use PCOL for arrears?

Hi,

Hello I am hoping you may be able to offer advice on how I should proceed with my tenant being paid 100% LHA but not passing it onto me.

Summary of history:
•26/08/09, signed 12mth AST, T (if relevant, a single parent on income support) paid 1 month rent and deposit. It was agreed that T would immediately apply for LHA
•22/10/09, T confirmed LHA claim was 100% successful and would transfer arrears when received from Council (they pay 4 weeks in arrears)
•09/11/09, arrears (26/09/09-08/11/09) due from Council. When I did not receive it and could not reach T, I contacted council myself who confirmed that T had been paid 8.7wks rent (26/08/09-25/10/09) on 03/11/09 and 2wks rent (26/10/09-08/11/09) on 09/11/09. I could not get hold of T – mobile disconnected, no response to letter through the door or email.
•11/11/09, emailed Council to let them know that T had not paid me any rent and was 7wks in arrears
•18/11/09, protected deposit online and sent T the DPC
•20/11/09, council confirmed that they had written to T today (10 days after I contacted them!) and would give her 28 days to respond with evidence that she'd paid me; if not received, they would start paying me directly from date of last payment to T, ie 09/11/09

I would now like to seek arrears (currently 8wks and rising till council decide they will pay me) via PCOL. However, if the council start paying me in 28 days arrears will have fallen to 6wks + 2 days as they will backdate to 09/11/09.

So my Q is PCOL a good idea? I've pretty much ruled out T actually paying out, afterall she doesn't work (I'm sure she's spent it as she refuses to communicate), so I'm hoping for a possession order. Can this be done through PCOL or are they likely to dismiss my claim if rent due has fallen to 6 wks by the time I get to court?

Any advice gratefully received.

[tom999]

So my Q is PCOL a good idea?

Yes.

I've pretty much ruled out T actually paying out, afterall she doesn't work (I'm sure she's spent it as she refuses to communicate), so I'm hoping for a possession order. Can this be done through PCOL or are they likely to dismiss my claim if rent due has fallen to 6 wks by the time I get to court?

(1) Before applying to PCOL, serve s.8 g8, 10, 11 (g8 will give mandatory possession, and is applicable if more than 2 months rent is owed, if rent paid monthly); from your description, by expiry of s.8 (2 weeks after service) tenant may well have 2 months (or 8 weeks) rent owing, so g8 will apply.
(2) Also serve a valid s.21* (as a backup, in case s.8 fails); this will also give mandatory possession (i.e. it allows LL to gain possesion of property, on a no fault basis, i.e. tenant does not have to be in arrears, etc.)


* If AST in E&W and any protectable deposit is protected.

[Milton]

Reply

Thanks for your response.

Perhaps I should mention that the AST does not have a 6mth break clause and therefore expires 25/08/10. So my questions:

Can I still serve a s21 now?

Also, if the council start paying me in 28 days, payment will be back-dated to 09/11/09. Thus if I serve a s8, 14 days later apply to PCOL, the rent arrears would then be approx 6.5wks - would the s8 still be valid at the court date?

Thanks

[tom999]

Can I still serve a s21 now?

Yes.

Thus if I serve a s8, 14 days later apply to PCOL, the rent arrears would then be approx 6.5wks - would the s8 still be valid at the court date?

s.8 g8 only applies if 2 months rent is owed (if rent paid monthly) at time of the notice and at the hearing*; if 2 months rent is not owed; wait until it is, and then apply for a Court Order.

* Note that hearing may be anything from 1-2+ months from application, during which time arrears will be accrued.

[jeffrey]

Can I still serve a s21 now?

Yes, as tom999 posts. A Notice under s.21 can be served at any time, once AST has actually started.

[Milton]

s8 part 4 wording

Thanks guys.

Do you think the explanation of why each ground is being relied on below is appropriate?

Ground 8
As of 26 November 2009 arrears of rent total £1700.00, constituting 2 months arrears. This continues to increase at a daily rate of £27.94.

Ground 10
No rent has been paid since 26 August 2009. TWO months’ rent due at the date of this notice i.e.
DUE DATE AMOUNT DUE RECEIVED AMOUNT OVERDUE
26/10/09 £850 £0 £850
26/11/09 £850 £0 £1700

Ground 11
The tenant has not paid any rent since moving into the property i.e. has only paid on time on one occasion.

[jeffrey]

Don't say 'arrears'. For monthly rent, 'arrears' is not the issue- simply rent unpaid.