T in arrears; s.21 Notice served; has L lost rights?

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    T in arrears; s.21 Notice served; has L lost rights?

    Dear all. Apologies for the long introduction but I'm setting the context...

    I'm currently trying to get out of the landlord game. We served a section 21 notice on our tenants in June. Since then, they've fallen into two months arrears with the rent and have generally ignored the letting agents' calls to chase it up.

    It looks as though they're not going to pay up and I'm starting to worry that they won't go when the S21 notice period is up. From what I can tell, all they have to say is that they've not been able to find alternative accomodation and we won't have any recourse to get them out through the S21.

    I've been pushing the agents to issue a S8 notice but they've advised against it, because of the likelihood it'll end up in court. This could be right. In my view, it would be worth it if I get my money back and land the thieving scum with a CCJ at the same time.

    I realise this is an issue that gets discussed on these boards all the time. Essentially, what I'd like to know is what ploys the tenants might use to stall the process or avoid paying off the arrears. They seem like the types who know how to play the system and I'd like to be prepared.

    Any suggestions gratefully appreciated...

    #2
    Originally posted by jeffparker View Post

    I've been pushing the agents to issue a S8 notice but they've advised against it, because of the likelihood it'll end up in court.
    The problem being???
    Allow tenants to protect their own deposits. I want free money when they do it wrong

    Comment


      #3
      I guess it's a hassle I'd prefer to avoid. We're only renting to cover the mortgage on an unsold property and with the tenants witholding the best part of 2 grand it'd be a squeeze to cover the initial costs-even if we do get them back in the end. The agents seem to think court would be a bad idea. I get the impression the tenants will be mire comfortable in the environment than us so I'm worried things might not go the right way. I'm trying to get a feel of what tricks the tenants might pull.

      Comment


        #4
        You can not force a tenant out without a court order.

        If they have 2 months unpaid, you should serve a s8 notice under grounds 8, 10 & 11. 14 days later, you can apply to the court for a possession order using the Possession Claim Online website. The cost is £100 online (£150 for a paper application).

        It will take around a month before the hearing takes place, but so long as there is still 2 months unpaid, you will get a guaranteed possession order under ground 8. If some rent has been paid, the judge can consider giving you a possession order under grounds 10 or 11. The advantage of s8 is that the judge can order the tenant to repay the missing rent too.

        If the judge grants a possession order, the tenant will be given at least 14 days to go. If the tenant still refuses to go, you will have to employ court bailiffs, which is more expense (£100 iirc) and time.

        You should not discount the section 21 process, but s8 is usually the quickest option.

        DO NOT be tempted to use any process other than shown above. to do so will almost certainly be illegal eviction, which is a criminal offence.

        Comment


          #5
          Originally posted by jeffparker View Post
          Dear all. Apologies for the long introduction but I'm setting the context...

          I'm currently trying to get out of the landlord game. We served a section 21 notice on our tenants in June. Since then, they've fallen into two months arrears with the rent and have generally ignored the letting agents' calls to chase it up.

          It looks as though they're not going to pay up and I'm starting to worry that they won't go when the S21 notice period is up. From what I can tell, all they have to say is that they've not been able to find alternative accomodation and we won't have any recourse to get them out through the S21.

          I've been pushing the agents to issue a S8 notice but they've advised against it, because of the likelihood it'll end up in court. This could be right. In my view, it would be worth it if I get my money back and land the thieving scum with a CCJ at the same time.

          I realise this is an issue that gets discussed on these boards all the time. Essentially, what I'd like to know is what ploys the tenants might use to stall the process or avoid paying off the arrears. They seem like the types who know how to play the system and I'd like to be prepared.

          Any suggestions gratefully appreciated...
          How much deposit did you take, often the once bitten twice shy tenant will use the value of the deposit to pay the last two months rent. I confess to have done it myself (I did however return the property spotless and paid interest on the arrears)

          If this is the case engage with them now and make sure the property is left in reasonable condition or you will have the faff of claiming damages in the small claims court.

          Also remember the tenant needs to two months in full arrears for a monthly contract (rather than just missing two payments, so in effect once they have missed the three monthly payment) before you can use ground 8 for a section 8 which results in mandatory eviction rather than the other grounds which are discresionary.

          Comment


            #6
            Originally posted by matthew_henson View Post
            Also remember the tenant needs to two months in full arrears for a monthly contract (rather than just missing two payments, so in effect once they have missed the three monthly payment) before you can use ground 8 for a section 8 which results in mandatory eviction rather than the other grounds which are discresionary.
            Not so. As soon as the 2nd payment is missed, s8 g8 becomes available. The actual wording is:
            Both at the date of the service of the notice under section 8 of this Act relating to the proceedings for possession and at the date of the hearing—
            (a) if rent is payable weekly or fortnightly, at least eight weeks’ rent is unpaid;
            (b) if rent is payable monthly, at least two months’ rent is unpaid;
            (c) if rent is payable quarterly, at least one quarter’s rent is more than three months in arrears; and
            (d) if rent is payable yearly, at least three months’ rent is more than three months in arrears;
            and for the purpose of this ground “rent” means rent lawfully due from the tenant.
            Weekly, fortnightly or monthly are 'unpaid' - above that, it is 'arrears'.

            Comment


              #7
              Thanks for the advice. It looks like we will be going down the S8 route. The deposit would probably cover most of the arrears, but I've got very little confidence they'll leave the house as they found it so we feel safer trying to recoup the money this way. It's a bit of a headache, but it sounds like it'll work.

              Comment


                #8
                Rent Arrears: Have I missed the boat?

                I originally posted hear a few weeks back and got some good advice which I proceeded to ignore after talking to incompetent lettings agents. Sorry about that.

                Basically, we're in the process of evicting tenants via section 21. Although I was keen to serve a section 8 notice, the agents managed to dissuade me-they suggested that it would be an implied extension of the s21 notice period. The tenants are due to go in the next week and will owe three months rent. If they've left the house in reasonable condition, the deposit will cover some of that but they still owe well over £1000 pounds.

                Is there any realistic prospect of getting this back? The tenants are likely to be traceable.

                I've looked into moneyclaim.gov but they have the caveat that I might be liable for the tenants' costs if I haven't exhausted the other possible channels. Can anyone explain what these channels are. The agents have requested payment in writing; I'm not sure what else we could be expected to have done.

                If anyone has any advice, I would appreciate it.
                Last edited by jeffparker; 15-08-2010, 22:24 PM. Reason: None

                Comment


                  #9
                  Providing the amount you claim is less than £5k, any claim is likely to be allcated to the small claims track.

                  Should you lose you will only be exposed to a very limited amount of your opponents costs. They will not, for example, be able to claim a huge amount of solicitors fees. The type of costs you would be exposed to are things like time off work, transport, car parking etc. It is unlikely to be more than £100.

                  A claim for rent arrears is likely to succeed because (in simple terms), you prove what was owed by showing the tenancy agreement. The tenant then has to prove that they paid any monies you say they didn't. If they can't, you win. Presuming you win your case, the tenant will be ordered to refund any fees you have paid.

                  The small claims process is quite simple and doesn't require the services of a solicitor. However, you might find it useful to obtain a book on the process - a number are available from your local library or Amazon.

                  If the tenant doesn't pay, you may have to take enforcement action which could include freezing his bank account or obtaining an attachment of earmings. If the tenant is on benefits, your chances of obtaining settlement are extremely limited even if you do win.

                  Comment


                    #10
                    My view is always take legal action: If not you may become know amongst the local scratterati as a soft-touch who won't pursue debts. Guess what sort of tenants you'll get then??

                    Cheers!

                    Lodger

                    PS Having taken action keep pursuing the little rats...
                    I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

                    Comment


                      #11
                      Originally posted by jeffparker View Post
                      ... The tenants are due to go in the next week and will owe three months rent. If they've left the house in reasonable condition, the deposit will cover some of that but they still owe well over £1000 pounds.
                      You say they are 'due to go' - do you mean the s.21 notice is due to expire, because, if so, it is possible the T will not leave at the expiry of the notice.

                      BTW, I assume this is an Assured Shorthold Tenancy in England/Wales, with rent less than £2,083.33 pcm - is the deposit protected in a scheme?

                      Is there any realistic prospect of getting this back?
                      Yes, if the T is working, or otherwise has sufficient means to enable you to enforce a CCJ.

                      I've looked into moneyclaim.gov but they have the caveat that I might be liable for the tenants' costs if I haven't exhausted the other possible channels. Can anyone explain what these channels are. The agents have requested payment in writing; I'm not sure what else we could be expected to have done.
                      As Snorkerz says, claims below £5K will be allocated to the small claims track, where costs awards are extremely restricted. However, claims above £5K are allocated to different tracks where the claimant is exposed to the defendant's legal costs, hence the caveat online - but this doesn't affect you.

                      One thing you must do, however, is send a 'letter before action' to the T, detailing the sums owing (so he is left in no doubt as to what is being claimed and why), and giving a deadline to pay (2 weeks is reasonable), after which you state you will issue a county court claim. This gives the defendant the opportunity to settle before you bring the claim. Keep a copy of the letter and proof of posting (a free certificate of posting is sufficient if it is likely that the T will refuse to accept signed-for services).

                      Comment


                        #12
                        Two threads by the same member have been merged here. Please do not start a new thread if you merely wish to continue a previous discussion or report on subsequent developments. It can cause unnecessary confusion (quite apart from losing the connection with facts previously established or legal points previously explained).

                        Comment


                          #13
                          If you are not that keen in presenting your case at court instruct a solicitor. (yes I know I'm bound to say that!)

                          Is there a guarantor on the agreement?

                          If you issue the claim following a Section 8 notice you could recover most of your legal costs. If you use Section 21 then you would only recover a portion.

                          I do not follow the LA statement regarding the Section 8 notice.

                          If you are of the view you might get some money from T later then use Section 8, otherwise use Section 21.

                          Make sure the deposit is protected.
                          PAUL GIBBS, solicitor, Jacobs & Reeves. My comments on this forum are correct to the best of my knowledge and belief. No responsibility or liability is accepted by reason of reliance upon such comments. This disclaimer would not apply to direct clients of Jacobs & Reeves where there is a valid retainer in place and I would be happy to confirm any advice if formally instructed. . Jacobs & Reeves now offer a fixed fee possession service.

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