Tenants have a new house but won't leave mine!

[Bluenude]

Hi everyone, new to this forum and hoping someone can help.

We currently live abroad and our home in the UK is rented out through a letting agent.
We are moving back to the UK and so requested our house back. The letting agent served a Section 21 notice.

At this point the tenant wrote to inform our agent that as they would have moving expenses they would not be paying any more rent.
So we have 2 months rent arrears going into the 3rd month. We have submitted a small claim for this.

We submitted an accelerated possession form when the Section 21 expired.
The tenant has filled in the defence forms claiming that the Section 21 was issued incorrectly.

On receiving the defence form copies the agent called to inform us that having spoken to a solicitor friend he believes the tenant is correct and so wants to cancel the court papers and start again with a new Section 21.

The tenants in the meantime have taken possession of a new home and moved some of their belongings not all.

We have written to the court and detailed the new address and supplied evidence of the new address.

Do you think that a judge may overlook the Section 21 fault with the information regarding the new house? If not is there another way to get them out without giving them another 2 months notice?

Thanks in advance for any advice.

[thesaint]

The Sec 21 either has or hasn't been filled in correctly.
If the agent and "Solicitor" don't know, they really shouldn't be in business.

If the tenant hasn't been issued a legal notice that you require your property back, how do you expect a judge to rule that they must leave?
In the eyes of the law, you haven't given them two months notice, so you aren't giving them "another two months notice".

If you have a forwarding address, you will have no problems getting your property back, and getting a judgement for the rent owing.

[mind the gap]

Do you think that a judge may overlook the Section 21 fault with the information regarding the new house? If not is there another way to get them out without giving them another 2 months notice?

Thanks in advance for any advice.

The answer to your question is no : either the s21 was served correctly, or it wasn't. A judge will not make a discretionary order for possession if it was invalid. Sack/disinstruct your agent - and sue them for incompetence. Seriously. Serving a section 21 notice is about the most basic thing a letting agent can be asked to do and they should not mess it up. They have cost you a lot of time, money and grief.

The situation now : sounds as though your tenants are in denial! They presumably do not need two homes, and hanging onto a rental property because they still have some of their stuff in it seems a very expensive storage option!

The way forward! Strictly speaking, 'thesaint' is correct about the section 21 notice, however, pragmatically this may not be significant - it depends on the tenants' motives. Since it would appear not to be in tenants' interests to be paying a mortgage/rent for TWO properties when they could just be paying for one, the most productive approach may be to write them a Letter Before Action (as well as issuing a valid section 21, just in case) pointing out that

(i) they now owe you £x (detail why) and that you will be pursuing this through moneyclaimonline (attach a print-out of your claim so they know you mean business)
(ii) with every month which they delay surrendering the property,they wil obviously accrue further rent debts and you will pursue a claim for the rent
(iii) it would clearly be in their interests for them to end the tenancy now rather than wait for the correct s21 notice to expire.
(iv) ask them to contact you as a matter of urgency if they are willing to to agree an early surrender. This would mean they would not need to remain liable for rent until the end of the notice period, as they would otherwise.

If they have any sense they will bite your hand off, but rememember that the surrender (which should be effected by a Deed drawn up by your solicitor) should in principle be on your terms, not theirs.

You may judge that the chances of getting the money out of them are slim (are they in work?) and be willing to negotiate over the debt just to get them out - it's up to you.

If they continue to be painful and won't communicate or agree an early surrender you will just have to press on with the s21 or a s8 if rent owing reaches two full months' worth.

Good luck.

[Snorkerz]

On receiving the defence form copies the agent called to inform us that having spoken to a solicitor friend he believes the tenant is correct and so wants to cancel the court papers and start again with a new Section 21.

On what grounds is the section 21 incorrect?

Have you approached your agent with regard to compensation / damages for their error - they should be easy to quantify in court.

[mind the gap]

Actually, if they owe at least two months' rent (as #1 seems to suggest) then you would be advised to issue a section 8 notice as well, citing grounds 8,10 and 11. That gives them 14 days to end the tenancy by moving out; if they fail to do so, you can apply for a possession order on Day 15, and assuming they still owe at least 2 months' worth by the date of the hearing, the possession order should be mandatory. It would be quicker than waiting for the s 21 to expire.

[Bluenude]

Actually, if they owe at least two months' rent (as #1 seems to suggest) then you would be advised to issue a section 8 notice as well, citing grounds 8,10 and 11. That gives them 14 days to end the tenancy by moving out; if they fail to do so, you can apply for a possession order on Day 15, and assuming they still owe at least 2 months' worth by the date of the hearing, the possession order should be mandatory. It would be quicker than waiting for the s 21 to expire.

Thanks so much for the replies.

We did wonder if we should issue a Section 8 as well. The tenants have been on time with the rent every month until they were served the Section 21. Then they stopped paying. There are 2 tenants one is retired the other working but I think being topped up with some benefit.

The agent hasn't been inside the house but has inspected from outside and says the gardens etc are in a mess. Do we have grounds to issue the Section 8 citing 8,10, 12 and 9? We have read way too much and are now completely confused

The Letter Before Action sounds like the way forward, thanks for that information. I have no idea why they are dragging their feet. They apparently have a lot of stuff parts it seems were in storage before they rented our house.

[Bluenude]

On what grounds is the section 21 incorrect?

Have you approached your agent with regard to compensation / damages for their error - they should be easy to quantify in court.

Apparently it's to do with dates. It should have been served at the end of month and instead was served 3 days earlier.

No we haven't done anything in regards to the agent yet.

[mind the gap]

Apparently it's to do with dates. It should have been served at the end of month and instead was served 3 days earlier.

No we haven't done anything in regards to the agent yet.

Assuming the tenancy has already begun and any protectable deposit protected, a section 21 cannot be served 'too early' - just too late for the date it is supposed to expire. Do you mean that the expiry date was too early?

Anyway if you can serve a section 8 as well, and it sounds as though you can, do it. It's the quicker way. Worth serving both just in case they reduce the rent owed to less than two months' worth just before the hearing (just to be awkward!). This link gives useful advice about serving a section 8 notice:
http://www.letlink.co.uk/letting-fac...-8-notice.html

[Bluenude]

[QUOTE=mind the gap;228886]Assuming the tenancy has already begun and any protectable deposit protected, a section 21 cannot be served 'too early' - just too late for the date it is supposed to expire. Do you mean that the expiry date was too early?

Anyway if you can serve a section 8 as well, and it sounds as though you can, do it. It's the quicker way. Worth serving both just in case they reduce the rent owed to less than two months' worth just before the hearing (just to be awkward!).

Yes his defence says that as his rental period starts on the 1st of each month the section 21 expired on the 27th of the month.

Thanks for the link I will have a read.

[Snorkerz]

Yes his defence says that as his rental period starts on the 1st of each month the section 21 expired on the 27th of the month.

Was the section 21 notice a s21(1)(b) issued during the fixed term, or a s21(4)(a) issued after the end of the fixed term? This could be critical.

[mind the gap]

Was the section 21 notice a s21(1)(b) issued during the fixed term, or a s21(4)(a) issued after the end of the fixed term? This could be critical.

What's the betting the agent has 'lost' the paperwork?

[Snorkerz]

Have you approached your agent with regard to compensation.

I know you are narked at the tenant, but he isn't doing anything wrong by staying in the property until you get a court order. I really would be looking to the agent to sort this out and cover your losses.

What's the betting the agent has 'lost' the paperwork?

Hopefully, s21 will have been submitted with tenants defence, so OP should get a copy eventually - even if the agent has lost the evidence. MTG, you don't think the agent might lose it on purpose do you?

[mind the gap]

I know you are narked at the tenant, but he isn't doing anything wrong by staying in the property until you get a court order. I really would be looking to the agent to sort this out and cover your losses.Hopefully, s21 will have been submitted with tenants defence, so OP should get a copy eventually - even if the agent has lost the evidence. MTG, you don't think the agent might lose it on purpose do you?

Well, embarrassment (at having stuffed up) drives people to do odd things!

Whether by cock-up or conspiracy, I bet it disappears...

[Bluenude]

Was the section 21 notice a s21(1)(b) issued during the fixed term, or a s21(4)(a) issued after the end of the fixed term? This could be critical.

I have a copy of what was issued it says it is a 21(4)a)

And was supplied free in good faith from landlordzone!!! My agent clearly doesn't read the information on this site just has the free downloads!

[Lawcruncher]

The tenants in the meantime have taken possession of a new home and moved some of their belongings not all.

So, is your property the tenant's principal home now? If it is not then the tenancy is no longer an assured (shorthold) tenancy and neither a section 8 nor a section 21 notice are appropriate.