My Next Step S8/S21 & Long Story - Please Help!

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    My Next Step S8/S21 & Long Story - Please Help!

    Dear all,

    I've got a dilemma and possibly a sizable problem. I don't feel I can explain the whole story without going into great detail, so I'm sorry if this is a long one, I've been reading the forum for a while and trying to find out my next step, however I think I have the right questions to ask.

    Let me explain my situation.

    In 2007, my younger sister had some issues with her partner and took a break from the relationship, I put her up in my place as, at the time she couldn't afford her own place. A short while later I landed a job abroad in Dubai, so started working abroad but my sister continued to stay at my place. After a while she worked things out with her fella and decided to give it a go and moved back in with him, this left me in a bit of a predicament as she had essentially been looking after my place in my absence. Although work is good, getting away isn't so organising viewings etc for potenital tenants wasn't viable.

    My sister offered to, in effect, manage the property and act as landlord as any sort of interaction with me and a tenant should any problems arise be pretty much a no go because of the distances, my work and time zones involved. Initially this seemed a good idea and who better to manage the place than my own family, it was fine for a while with various tenants coming and going with no issues, she seemed to be doing a good job and dealt with any issues that arose such as some minor repairs to the property. She took payment from the tenants via bank transfer, and forwarded the rent minus some for herself for managing the place, which was fine by me because it helped her out and helped me out because I had someone who I could call at irregular times once I finished work etc.

    All was well until May 2009, when the money stopped coming in. Ok I thought perhaps there's been some difficulties here, with the rent coming in late or something.
    I spoke to my sister and she said that she had some issues with the tenant and that they hadn't paid the rent or been in contact and she would chase them up. I have since learned that the tenant fell out with her then boyfriend as he was caught claiming for benefits and working on the side, this caused a forefiture of their housing benefit and thats why we are where we are now. Sis was chasing the LA aswell as the tenant and not really getting anywhere.So after months of faffing about, not being able to contact the tenant and some personal issues, we've almost come a full year without any sort of resolution.

    I know, I should have sorted this ages ago but in my naievity I assumed she was handling the whole situation when really she was stuck and needed help but didn't know what steps to take.

    Now I am in a position that I need to sort this situation out and I need the property back, so I now know what has been going on and have to have a hand in what's going on.

    I have been doing some research and have a few questions to help me on my way, it may not be possible to bash this lot out in one go so may require a second sitting, thank you for your patience and help in advance. It's a rubbish situation for anyone to be in I'm hoping that with the help of you all I can successfully get my property back and I intend to update this thread along the way from start to finish as it may help someone in the future.

    OK here goes..

    Property was rented on an AST in Eng & Wales @ £450 PCM payable in advance on the 1st of every month. The tenancy ran from 01-08-2008 until 31-07-2009 so we are now in (what I understand) to be a periodic tenancy as there was no renewal of contract.

    There is no mortgage on the property

    A deposit of 450 was taken but was NOT protected ( I didn't know about this in all honesty) I understand that it needs to be protected in order to sucessfully serve a S21 notice, I had a look on the DPS website and it only allows you to secure a deposit from April 2009, is there a way to secure the deposit from 01-08-2008?

    My intention would be to serve a section 8 on grounds(8/10/11) the, after two weeks apply for possession via PCOL, I have a feeling that T may claim hardship and is now pregnant and not living at the property but does go back there to check mail and has left items belonging to her in the property ( Spoke to an neighbour over the road via email) I can only assume that she is waiting to be evicted so once she has a court order requiring possesion she will go back to the LA and demand she is rehoused as she is pregnant? - is that likely?

    So once this deposit situation is sorted out and have provided the tenant with required information serve a S21 before the 31st of any month ( possibly missed the boat for April) stating that possession of the property is required after 31st July 2010 ( assuming it's served in April) Does this sound correct?

    My final question, and possibly the most important, is the house belongs to me, but given my sister has been Landlord from the start shall I ask her to secure the deposit ( if possible ) and serve notices, or do I need to do all of the above?

    I know theres a fair amount of questions there ladies and gentlemen, I apologise in for the length of my post.

    Any help would be greatly appreciated.

    #2
    Originally posted by Bhudda_Of_Disturbia View Post
    Property was rented on an AST in Eng & Wales @ £450 PCM payable in advance on the 1st of every month. The tenancy ran from 01-08-2008 until 31-07-2009 so we are now in (what I understand) to be a periodic tenancy as there was no renewal of contract.
    Correct
    A deposit of 450 was taken but was NOT protected ( I didn't know about this in all honesty) I understand that it needs to be protected in order to sucessfully serve a S21 notice, I had a look on the DPS website and it only allows you to secure a deposit from April 2009, is there a way to secure the deposit from 01-08-2008?
    So long as it IS protected when you serve the s21, the 'from' date isn't an issue
    My intention would be to serve a section 8 on grounds(8/10/11) the, after two weeks apply for possession via PCOL, I have a feeling that T may claim hardship and is now pregnant and not living at the property but does go back there to check mail and has left items belonging to her in the property ( Spoke to an neighbour over the road via email) I can only assume that she is waiting to be evicted so once she has a court order requiring possesion she will go back to the LA and demand she is rehoused as she is pregnant? - is that likely?
    If tenant is not using the property as her main residence then her agreement can not be an AST - irrespective of what is written down. Housing Act 1988 s1(1)(b). As such, you may not need the s8 or s21 process and deposit protection might not be an issue - others will comment.
    So once this deposit situation is sorted out and have provided the tenant with required information serve a S21 before the 31st of any month ( possibly missed the boat for April) stating that possession of the property is required after 31st July 2010 ( assuming it's served in April) Does this sound correct?
    Yes, serve section 21(4)(a).
    My final question, and possibly the most important, is the house belongs to me, but given my sister has been Landlord from the start shall I ask her to secure the deposit ( if possible ) and serve notices, or do I need to do all of the above?
    It sounds to me that YOU are the landlord, your sister is your agent. By rights she should be deducting tax before forwarding rental revenue to you - but that is a different matter. I believe your sister can open an account with DPS as an agent and protect your tenants deposit.

    Does your tenant have an address in England/Wales where he can serve legal documents on you?

    Comment


      #3
      Originally posted by Bhudda_Of_Disturbia View Post
      I can only assume that she is waiting to be evicted so once she has a court order requiring possesion she will go back to the LA and demand she is rehoused as she is pregnant? - is that likely?
      She will be better off if she is evicted, but the local authority may still deem her making herself intentionally homeless anyway.

      Your sister needs to inform the local authority that the tenant is no longer living at the house.
      Allow tenants to protect their own deposits. I want free money when they do it wrong

      Comment


        #4
        @Snorkerz

        Thank you for the responses, I do have an address where documents could be served although it won't be my main residence, as that was the letted property. They could be served to my parents place - would this be good enough?

        The Tenant doesn't actually know of me in all honesty, although the LA do as I was sent some information to my folks address regarding the installation of smoke alarms which was carried out by a company which my sister paid for.

        If tenant is not using the property as her main residence then her agreement can not be an AST - irrespective of what is written down. Housing Act 1988 s1(1)(b). As such, you may not need the s8 or s21 process and deposit protection might not be an issue - others will comment.
        OK - My only problem would be how do we prove she's no longer there?

        @ Thesaint - Thank you for the response - She has told them, they've not been very helpful in suggesting any sort of action.

        Comment


          #5
          Originally posted by Bhudda_Of_Disturbia View Post
          @Snorkerz

          Thank you for the responses, I do have an address where documents could be served although it won't be my main residence, as that was the letted property. They could be served to my parents place - would this be good enough?
          Was there a 'landlords' address on the tenancy document? This is vital, because if it is an AST, no rent is payable until such information is given to the tenant. It still accrues, and is payable on receipt of the information, but if she hasn't got the info then you have no claim for 'non-payment' because she has no obligation to pay. Section 48 of the 1987 Landlord & Tenant Act

          The Tenant doesn't actually know of me in all honesty,
          Nothing to worry about - many tenants of commercial landlords or landlords who use agents do not know who the landlord is - but there is still a contract between landlord & tenant.
          OK - My only problem would be how do we prove she's no longer there?
          A statement from whoever gave you that information, with her current 'main' address? Or get a tracing agency - if you google 'findermonkey' they charge £39.95 I think - no find no fee - I haven't used them so this isn't a recommendation.

          Comment


            #6
            Originally posted by Snorkerz View Post
            Was there a 'landlords' address on the tenancy document? This is vital, because if it is an AST, no rent is payable until such information is given to the tenant. It still accrues, and is payable on receipt of the information, but if she hasn't got the info then you have no claim for 'non-payment' because she has no obligation to pay. Section 47 of the 1987 Landlord & Tenant Act
            To clarify re LTA 1987:
            - section 47 requires L's address to appear on each rent demand
            - section 48 requires L's address to be notified to T (i.e. at the outset and on every change of address).

            See Part VI of the Act here: http://www.statutelaw.gov.uk/content...filesize=13346
            JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
            1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
            2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
            3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
            4. *- Contact info: click on my name (blue-highlight link).

            Comment


              #7
              Originally posted by jeffrey View Post
              To clarify re LTA 1987:
              - section 47 requires L's address to appear on each rent demand
              - section 48 requires L's address to be notified to T (i.e. at the outset and on every change of address).

              See Part VI of the Act here: http://www.statutelaw.gov.uk/content...filesize=13346
              I knew that! (typo corrected).

              Jeffrey - what is your opinion on if this is an AST, and if it is not, what is the easiest way to end the tenancy?

              Comment


                #8
                Originally posted by Snorkerz View Post
                Jeffrey - what is your opinion on if this is an AST, and if it is not, what is the easiest way to end the tenancy?
                As you mentioned in post #2, If tenant is not using the property as her main residence then her agreement can not be an AST - irrespective of what is written down. Housing Act 1988 s1(1)(b). As such, you may not need the s8 or s21 process. In that event, the Letting Agreement:
                a. is still valid; but
                b. is not an AST, no matter what it claims itself to be; and
                c. is read literally- subject to the Protection from Eviction Act 1977- so L can enforce it strictly.
                JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                4. *- Contact info: click on my name (blue-highlight link).

                Comment


                  #9
                  Originally posted by jeffrey View Post
                  c. is read literally- subject to the Protection from Eviction Act 1977- so L can enforce it strictly.
                  So, Bhudda, what does the tenancy agreement say about eviction for non payment of rent?

                  Comment


                    #10
                    Originally posted by Bhudda_Of_Disturbia View Post

                    @ Thesaint - Thank you for the response - She has told them, they've not been very helpful in suggesting any sort of action.
                    The only way you can prove she is not living there, is to show where she does live.
                    If she is not claiming housing benefit, and is not registered as living anywhere else, you have a bigger problem trying to prove she does not live there.

                    If she is claiming she lives there, then she owes rent.

                    Have a look at 192.com, this has proved handy for my Uncle when tracing tenants.
                    The free information is not that good, but you can pay a small fee to find out a bit more, but it works better if they have "actually" moved out.
                    Allow tenants to protect their own deposits. I want free money when they do it wrong

                    Comment


                      #11
                      Dear all,

                      Thank you very much for your responses.

                      Originally posted by Snorkerz
                      Was there a 'landlords' address on the tenancy document? This is vital, because if it is an AST, no rent is payable until such information is given to the tenant. It still accrues, and is payable on receipt of the information, but if she hasn't got the info then you have no claim for 'non-payment' because she has no obligation to pay.
                      There was an address but it was my sisters ( where she lives now).

                      Also looking at it, the deposit T & C on the doesn't state it will be held in a DPS scheme. It states the Landlord will hold onto the deposit. This is a tenancy agreement from 2005 ( part of a pack), I know the law changed but does this invalidate any agreement?

                      It's a Tenancy Agreement F302E England & Wales - ( for an unfurnished house or flat on an AST)

                      Originally posted by Snorkerz
                      So, Bhudda, what does the tenancy agreement say about eviction for non payment of rent?
                      For non payment of rent it states that

                      1) Any part of the rent is outstanding for more than 21 days after becoming due( whether formally demanded or not) and/or
                      2) there is any breach, non- observance or non performance by the tenant of any covenant and or other terms in this agreement which has been notified in writing to the tenant and the tenant has failed within a reasonable amount of timeto remedy the breach and and/or pay reasonable compensation to the landlord for the breach and/or
                      3) any grounds as set out as grounds 2,8 or grounds 10-15(inclusive) ( which relate to breach of any obligation by a tenant) contained in the housing act 1988 schedule 2 apply.


                      The Landlord may recover possesion of the property and this agreement shall come to an end, subject to the landlord complying with the proper legal procedure. The landlord retains all his other rights in respect of the Tenant's obligations under this agreement. Note that if possession of the proprty has not been surendered and anyone is living in the property or if the property is an assured or assured shorthold tenancy then the landlord must obtain a court order for possession before re-entering the property, This clause does not affect the tenant's rights under the protection from eviction act 1977

                      Comment


                        #12
                        Originally posted by Bhudda_Of_Disturbia View Post
                        There was an address but it was my sisters ( where she lives now).
                        No problem there
                        Also looking at it, the deposit T & C on the doesn't state it will be held in a DPS scheme. It states the Landlord will hold onto the deposit. This is a tenancy agreement from 2005 ( part of a pack), I know the law changed but does this invalidate any agreement?
                        No it's fine - you need to ensure that the tenant is provided with the 'prescribed information' relevant to the scheme - here is an example off the DPS site.
                        For non payment of rent it states that

                        1) Any part of the rent is outstanding for more than 21 days after becoming due( whether formally demanded or not) and/or
                        2) there is any breach, non- observance or non performance by the tenant of any covenant and or other terms in this agreement which has been notified in writing to the tenant and the tenant has failed within a reasonable amount of timeto remedy the breach and and/or pay reasonable compensation to the landlord for the breach and/or
                        3) any grounds as set out as grounds 2,8 or grounds 10-15(inclusive) ( which relate to breach of any obligation by a tenant) contained in the housing act 1988 schedule 2 apply.


                        The Landlord may recover possesion of the property and this agreement shall come to an end, subject to the landlord complying with the proper legal procedure. The landlord retains all his other rights in respect of the Tenant's obligations under this agreement. Note that if possession of the proprty has not been surendered and anyone is living in the property or if the property is an assured or assured shorthold tenancy then the landlord must obtain a court order for possession before re-entering the property, This clause does not affect the tenant's rights under the protection from eviction act 1977
                        So, IF you can prove the tenancy is not an AST - you can give reasonable notice (probably one month) and then re-enter the property and change the locks.

                        Comment


                          #13
                          Snorkerz, thank you very much for your time but can I just run over that again.

                          Are you saying that if I can prove she's not there as her main dwelling through, say, the aforementioned website then it doesn't meet the criteria for a AST, as such we can give her some sort of notice ( is there a particular type such as s21/S8?) and then just go in there one day and change everything without a possession order?

                          So I need not go down the S21/S8 route but what type of coverage do I have for my own back, such as a possession order or some sort of legal docs to say I can indeed do this?

                          Sorry for all the questions but this (if I am reading it correctly) is a whole new route to take as from other threads I have read seems S8 or S21 are the standard ( and mostly sucessful) routes to take.

                          Many thanks again.

                          Comment


                            #14
                            Also what if I can't prove she's not there such as neighbour won't witness or she's living with family and leaching off of them so has no fixed abode as it were?

                            Comment


                              #15
                              Originally posted by Bhudda_Of_Disturbia View Post
                              Snorkerz, thank you very much for your time but can I just run over that again.

                              Are you saying that if I can prove she's not there as her main dwelling through, say, the aforementioned website then it doesn't meet the criteria for a AST, as such we can give her some sort of notice ( is there a particular type such as s21/S8?) and then just go in there one day and change everything without a possession order?

                              So I need not go down the S21/S8 route but what type of coverage do I have for my own back, such as a possession order or some sort of legal docs to say I can indeed do this?

                              Sorry for all the questions but this (if I am reading it correctly) is a whole new route to take as from other threads I have read seems S8 or S21 are the standard ( and mostly sucessful) routes to take.

                              Many thanks again.
                              Section 8 & 21 are for ASTs only.

                              According to Jeffrey, if it is not an AST then you just have to do what the contract agreed - providing it does not conflict with the Protection from Eviction Act.

                              Your tenancy agreement says:

                              Note that if possession of the proprty has not been surendered and anyone is living in the property - they are not
                              or
                              if the property is an assured or assured shorthold tenancy - it is not
                              then the landlord must obtain a court order for possession before re-entering the property, - neither apply, so neither does this

                              The only relevant bits of PfE seems to be regarding notice:

                              5. Validity of notices to quit.— (1) [Subject to subsection (1B) below] no notice by a landlord or a tenant to quit any premises let (whether before or after the commencement of this Act) as a dwelling shall be valid unless—
                              (a)it is in writing and contains such information as may be prescribed, and
                              (b)it is given not less than 4 weeks before the date on which it is to take effect
                              I would add that I have no legal training whatsoever - I would suggest you run this reasoning past a specialist landlord/tenant solicitor before you take any action. No advice on a forum comes with a guarantee, but pay a solicitor and you would at least have proof that you act with good intentions.

                              Fingers Xed, Jeffery may come along and give his expert opinion on my thoughts - at least if he says it's cobblers, it will save you paying your own solicitor!

                              Comment

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