Is it normal for T to defend s.8/s.21 claims?

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    Is it normal for T to defend s.8/s.21 claims?

    Tenant stopped paying rent once I gave 2 months' notice to leave (I need to move back in, it's my home)... on periodic tenancy, etc, etc. He is refusing to leave and I served a Section 21 and recently a Section 8.

    I have also started a small claim against him for fear he will disappear without paying the arrears. He has acknowledged service, thus buying another 28 days, and intends to defend all of the claim.

    Is that what usually happens? I have done everything by the book as far as I can see, I can prove he didn't pay with bank statements... do people think they may as well chance it and see rather than just pay up?

    Confused

    #2
    Originally posted by nudibranch View Post
    Tenant stopped paying rent once I gave 2 months' notice to leave (I need to move back in, it's my home)... on periodic tenancy, etc, etc. He is refusing to leave and I served a Section 21 and recently a Section 8.

    I have also started a small claim against him for fear he will disappear without paying the arrears. He has acknowledged service, thus buying another 28 days, and intends to defend all of the claim.

    Is that what usually happens? I have done everything by the book as far as I can see, I can prove he didn't pay with bank statements... do people think they may as well chance it and see rather than just pay up?

    Confused
    Your section 8 should come with an order for the missing rent. It might be sensible to withdraw the small claims case before you have to pay allocation and hearing fees.

    Comment


      #3
      Originally posted by nudibranch View Post
      I can prove he didn't pay with bank statements...
      It'd be impossible for you to prove T hadn't paid the rent.

      Therefore, it is not the LL who has to prove T hasn't paid, but the T who must prove he did in defence of your allegations.

      Comment


        #4
        Originally posted by nudibranch View Post
        Tenant stopped paying rent once I gave 2 months' notice to leave (I need to move back in, it's my home)...
        Nope: It is tenants home, & tenants property. It is landlord's investment... It may become your home.. if and when tenant departs following due process of law..

        You presumably wish to exercise your legal rights to recover the investment? Why should T not exercise his legal rights to hold on to his home/property??


        Cheers!

        Artful
        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


          #5
          Better: it's T's home at present, because L granted rights to occupy. L owns it but subject to those rights (which the law protects to an extent).
          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


            #6
            Originally posted by theartfullodger View Post
            Nope: It is tenants home, & tenants property. It is landlord's investment... It may become your home.. if and when tenant departs following due process of law..

            You presumably wish to exercise your legal rights to recover the investment? Why should T not exercise his legal rights to hold on to his home/property??


            Cheers!

            Artful
            Ok, but I'm not really debating his legal rights, or mine, to live in the property - I'm wondering why he has decided to defend the claim for arrears when he can't prove he's paid (because he hasn't)?
            He has had all required notice (in fact more than 2 months), everything has been done by the book. He decided not to pay because I gave notice - not because he can't afford to. I just thought it odd to defend the claim and wanted to know if that was a normal state of affairs?

            Comment


              #7
              I believe that the answer is fairly simple: He has little knowledge of the law. He can only defend a correctly drafted and served section 21 notice by claiming severe hardship under which circumstances the judge may consider delaying the granting of the possession order by a maximum of six weeks (I think). He can only defend a section 8 ground 8 action by either paying the arrears on the court steps before the action or proving to the judge that the rent has been paid.
              Incidentally, the idea of paying the arrears on the court steps is a risky one! I have just heard from an advocate friend who is involved in this sort of thing all the time. Apparently a tenant had taken up a 6 month AST, paid the first month's rent and nothing more except giving promises which had dragged the matter on for four months. Said tenant attended for the inevitable court hearing and produced all the arrears in cash on the spot. Advocate friend stated that as he had no authority from his client's client to accept these moneys and possessed no stationary on which to issue a receipt anyway the rent remained unpaid. Judge harrumpted a bit and considered the paperwork, appreciating the implications. Then stated that he was satisfied that the conditions of ground 10 had been satisfied thus a possession order was issued without further ado!

              Tenant 0, Landlord (with professional legal assistance) 1!

              P.P.
              Any information given in this post is based on my personal experience as a landlord, what I have learned from this and other boards and elsewhere. It is not to be relied on. Definitive advice is only available from a Solicitor or other appropriately qualified person.

              Comment


                #8
                Originally posted by P.Pilcher View Post
                Judge harrumpted a bit
                That is my favourite bit.
                'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

                Comment


                  #9
                  Actually...a related thought...if T did manage to persuade the LL/solicitor/anybody to accept the arrears on the courtroom steps (and thus thwart the awarding of the court order), would he then avoid being liable for LL's court fees (as I think he otherwise would be, i.e. if the court order were awarded)? Would the LL still end up out of pocket, or would he not have to pay either?
                  'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

                  Comment


                    #10
                    Any settlement before actually going into the courtroom (i.e. on the steps of the court as it is commonly referred to) would have to include the court fee and any other awardable costs (i.e. of attendance on the day, i.e. loss of earnings, car park, travel etc.)

                    If that fails or is not accepted by the representative of or the landlord in person, then the matter would go into court hearing as normal and the defendant would offer the money and the claimant would ask for costs.

                    The liability, subject to court awarding, for the court fee arises as soon as a possession summons is paid for, but its not a debt from defendant to claimant until awarded by the judge.

                    Where I have been involved in possession claims and the defendant has paid up beforehand (i.e. some days before) the hearing has only been vacated on payment in cash of all the arrears and the court fee.

                    Comment


                      #11
                      Originally posted by P.Pilcher View Post
                      I believe that the answer is fairly simple: He has little knowledge of the law. He can only defend a correctly drafted and served section 21 notice by claiming severe hardship under which circumstances the judge may consider delaying the granting of the possession order by a maximum of six weeks (I think). He can only defend a section 8 ground 8 action by either paying the arrears on the court steps before the action or proving to the judge that the rent has been paid.
                      Incidentally, the idea of paying the arrears on the court steps is a risky one! I have just heard from an advocate friend who is involved in this sort of thing all the time. Apparently a tenant had taken up a 6 month AST, paid the first month's rent and nothing more except giving promises which had dragged the matter on for four months. Said tenant attended for the inevitable court hearing and produced all the arrears in cash on the spot. Advocate friend stated that as he had no authority from his client's client to accept these moneys and possessed no stationary on which to issue a receipt anyway the rent remained unpaid. Judge harrumpted a bit and considered the paperwork, appreciating the implications. Then stated that he was satisfied that the conditions of ground 10 had been satisfied thus a possession order was issued without further ado!

                      Tenant 0, Landlord (with professional legal assistance) 1!

                      P.P.
                      Indeed: I too like the occasional harrumph! (With "h" I think...) when I'm allowed one.

                      A well-known housing charity's advice to T in such cases regarding this point is to ensure payment a day or so in advance of court date also, for the reason expounded above.. and I think by post, proof-of-postage, photocopy of cheque or something along those lines..
                      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


                        #12
                        Originally posted by theartfullodger View Post
                        Indeed: I too like the occasional harrumph! (With "h" I think...) when I'm allowed one.

                        A well-known housing charity's advice to T in such cases regarding this point is to ensure payment a day or so in advance of court date also, for the reason expounded above.. and I think by post, proof-of-postage, photocopy of cheque or something along those lines..
                        Actually, if I were a LL in this position (T offering to cough up on court steps), I think I would take the money (and get him out via a s21), rather than go home gleefully clutching my court order - but still minus the hundreds he owed me...a bird in the hand?
                        'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

                        Comment


                          #13
                          Note that a tenant offering a cheque which cannot be cleared before the court hearing date is still regarded as not having paid - the cheque is merely a promise.

                          Had this last year when a client received a cheque the day of a possession hearing - I advised client to take it to court and ask judge to make a possession order on grounds of 2 months or more unpaid and then bank cheque but not enforce possession if it cleared. Cheque turned out to be stolen from tenants boyfriends dad who to avoid unpleasantness paid up the unpaid amount (over £3k) Tenant then went into unpaid rent again and was subseqently evicted.

                          Comment


                            #14
                            Originally posted by theartfullodger View Post
                            Indeed: I too like the occasional harrumph! (With "h" I think...) when I'm allowed one.
                            Do you think I could get away with doing it as well, from time to time? Seems to be a bit of a man-thing, really. 'S not fair!
                            'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

                            Comment


                              #15
                              Originally posted by nudibranch View Post
                              Tenant stopped paying rent once I gave 2 months' notice to leave (I need to move back in, it's my home)... on periodic tenancy, etc, etc. He is refusing to leave and I served a Section 21 and recently a Section 8.

                              I have also started a small claim against him for fear he will disappear without paying the arrears. He has acknowledged service, thus buying another 28 days, and intends to defend all of the claim.

                              Is that what usually happens? I have done everything by the book as far as I can see, I can prove he didn't pay with bank statements... do people think they may as well chance it and see rather than just pay up?

                              Confused
                              ...

                              Originally posted by P.Pilcher View Post
                              I believe that the answer is fairly simple: He has little knowledge of the law.
                              Maybe so, or...

                              Maybe T knows all the ins and outs and is playing L like a violin, with intention to inflict maximal damage on the L even if in the worst case (for T) scenario it would cost T a few extra quid.

                              Maybe T is mightily pissed because he's intention was to stay in the house for many years happily paying rent on time. Now T is at least 1-2k£ out of pocket as well as exposed to enormous inconvenience because he has to move at no fault of his own.

                              Maybe T has kids, who might have friends living next door, and a good school located nearby and now T's familty has to move.

                              Maybe T's wife now wants 2 more bedrooms in the next house.

                              Maybe T is going to counterclaim set-off against the rent for whatever little sins L may or may not committed during the tenancy. Be it some disrepairs, breach of quiet enjoyment, racial discrimination, harassment, attempts of illegal eviction, failure to do electrical inspection, failure to provide gas safety certificates, failure to secure the deposit... the list goes on... Now have a look at small print of L's rental garantee and legal fees insurance. Surprise, surprise! Insurance is invalidated if there are any allegations of harrasment.

                              Maybe T's financials have changed since L vetted him at the start. Maybe T has a limited income now and even if L wins in the court it would be next to impossible to get anything actually paid.

                              Maybe 5£ a month if L is lucky.

                              Maybe, and this is rather a scary thought, T now is eligible for Legal Aid or even worse frequents forums like this or CAG or, got forbid, housingpricecrash.

                              Maybe knowing that L has subsidized T's housing to the tune of a few k£ a year is not enough to satisfy T's vengefully thoughts.

                              Maybe L has failed to follow pre-action protocol, and T knows that playing his cards right T will not have to pay L's costs anyway.

                              Maybe T does small claims for sports. Like started with claiming overdraft fees from banks and than moved on to lack of prescribed terms in consumer credit agreements, than on faulty default notices, than to age discrimination in job adverts and so on... Suddenly, the snobbery champion L seems like a fair game to T as well.

                              Maybe T is studying law in Uni and eager to get some 'practice' at L's expence.

                              Maybe T simply was not able to find an alternative rental yet, particularly assuming lack of a good reference from L and is saving for 6 month rent upfront... yes at L's expence.

                              Maybe T is in receipt of an invalid s.21 notice and considers what risks and liabilities T faces should he move out and than a few years after have a claim from L that T has moved out without giving a proper notice to quit and now T should pay a couple years worth of rent.

                              Maybe T is a freaking russian chess grossmeister and has IQ twice that of the L, L's agent and L's solicitor combined on logarithmic scale. Yep, L has clue what this means by T knows.

                              Maybe T has a severe case of insulted intelligence because of the lame demands and posing by L and LA.

                              Maybe L has failed to do proper inventory and have it signed by T.

                              Maybe T is holding up to claim 3x unprotected deposit once the tenancy is over.

                              Maybe T is going to trash the house once he moved out.

                              Maybe T will let some squatters know that once T moves out a window upstairs will be left open and there is a ladder in the garden.... LOL property ladder no less...

                              Maybe T is going to move overseas. There are 120 countries or so... good luck tracing...

                              Maybe T will take all the white goods, as well as anything that has some copper in it as well as hardwood floors.

                              Maybe T will piss into every corner of the property and defecate into the fireplace.

                              Maybe all of the above!

                              Maybe more...

                              Maybe L shall take his head out of the backside and realize the truth. T has an asset - possession of the property. L wants this asset, badly.

                              Maybe L should try to tone down on snobbery extravaganza and discuss this matter with T honestly and politely and without treating T as if he's a L's serf.

                              Maybe it worth to give something to T to get the asset (possession of the property) or try to agree full and final settlement accepting somewhat less than initially expected rent due and find a compromise, middle ground, with T.

                              Maybe L shall first decide what's more important, a snobbery contest or getting out of this predicament with least possible risks, losses and wasted time. Than act accordingly.

                              Just a thought... maybe... :-)

                              P.S. damn, it now sounds as a rogue tenant manual, though it also might be used as a risk assesment tool
                              Last edited by justaguy; 24-09-2010, 00:51 AM. Reason: added a few maybes :-) and some realy malicious maybes and PS

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