Nightmare scenario – any suggestions?

[//simon\\]

Hi everyone,

Thanks for taking the time to look over this post.

1. T moved in on 6 month AST. She paid money upfront then submitted Housing Benefit claim with my full approval.

2. Second month’s rent did not arrive. T admitted to spending money council paid to her. T’s view was council pays her in arrears and therefore she will pay me in arrears. I explained T&Cs. T eventually agreed to pay arrears in drips and drabs.

3. Serious fire broke out in property rendering it uninhabitable. 4 months remaining on tenancy.

4. Upon inspection of the property I together with Leaseholder witnessed evidence of drug abuse and heavy alcohol consumption.

5. Local authority made T “homeless” then immediately re-housed her, her partner and their baby.

6. T mentioned in passing to me something about a joint-tenancy with her partner to cover their new occupancy

7. T’s salvageable belongings remain in my property


For obvious reasons I do not want T to return. I am about to issue Section 8 and 21 Notices, however, in terms of T’s new occupancy it seems to be, or certainly feels like a legal limbo and/or dilemma. If the T has signed a new AST is her AST with me null and void?

Thanks in advance for any suggestions,

Simon

[Angela Macready]

If the tenant confirms that she has surrendered the property and has no intention to return, you could treat the tenancy as terminated. However, I would still want her to sign something to say she is giving up the tenancy regardless of how low the risk seems of her wanting the property back.

With regard to the possessions still in the property, to cover yourself as much as possible I would do the following:

*Make a list of all of the items and the condition that they are in.

*If any items are expensive when new, take good photographs of those items in their current condition.

*Send the 'former' tenant a letter (preferably recorded) enclosing the inventory giving her a date by when she must contact you to discuss removal. State also in the letter, clearly, that unless she contacts you by 'X' date, you will dispose of the goods as you see fit. I would give at least 14 days (and allow an additional 2 for the post to reach her). Use a date rather than '14 days'.

* When the date comes, clear the property the next day (i.e. not the same day) and if you are using a house removal firm, perhaps get them to sign the inventory to say that they agree with the condition of the goods being given to them (they probably won't do this but may be worth a try).

I would also send a reminder half way through the period that you still haven't heard from her in relation to the goods and if you still have a telephone number, give her a call too (and make a note of the date and time of the call) to make sure she is getting the letters.

Belt and braces I know but once the goods are gone, you will only have the information you collect now to rely upon as a defence.

Good luck

[jta]

Since you are already in a position to use a S8 grounds 8/10/11. why not issue it now but also add ground 14 to it (drug user), that way you can start immediate possession proceedings. If she has a new permanent home then I believe the AST is no longer valid. but I'm not 100% sure on that one.

[//simon\\]

If the tenant confirms that she has surrendered the property and has no intention to return, you could treat the tenancy as terminated. However, I would still want her to sign something to say she is giving up the tenancy regardless of how low the risk seems of her wanting the property back.

With regard to the possessions still in the property, to cover yourself as much as possible I would do the following:

*Make a list of all of the items and the condition that they are in.

*If any items are expensive when new, take good photographs of those items in their current condition.

*Send the 'former' tenant a letter (preferably recorded) enclosing the inventory giving her a date by when she must contact you to discuss removal. State also in the letter, clearly, that unless she contacts you by 'X' date, you will dispose of the goods as you see fit. I would give at least 14 days (and allow an additional 2 for the post to reach her). Use a date rather than '14 days'.

* When the date comes, clear the property the next day (i.e. not the same day) and if you are using a house removal firm, perhaps get them to sign the inventory to say that they agree with the condition of the goods being given to them (they probably won't do this but may be worth a try).

I would also send a reminder half way through the period that you still haven't heard from her in relation to the goods and if you still have a telephone number, give her a call too (and make a note of the date and time of the call) to make sure she is getting the letters.

Belt and braces I know but once the goods are gone, you will only have the information you collect now to rely upon as a defence.

Good luck

Hi Angela,

Thanks so much for you advice, it clears things up re T's possessions.

Now all I have to do is get T to confirm her "new address". Local Authority will not divulge this due to Data Protection, and I have asked T to write to me but as of yet have not received any contact.

Simon

[westminster]

If she has a new permanent home then I believe the AST is no longer valid. but I'm not 100% sure on that one.

No, if the tenant moves out then strictly speaking the AST is no longer an AST, but it would become a common-law contractual tenancy and a court order would still be required to evict.

[//simon\\]

Since you are already in a position to use a S8 grounds 8/10/11. why not issue it now but also add ground 14 to it (drug user), that way you can start immediate possession proceedings. If she has a new permanent home then I believe the AST is no longer valid. but I'm not 100% sure on that one.

Hi jta,

Thanks for this. I would agree. Under the circumstances, especially with the weight of "evidence" the Section 8 route is perhaps the best way forward.

To be honest, common sense seems to suggest that a new AST would invalidate the old one, however, one does hear some real horror stories.

Simon

[westminster]

1. T moved in on 6 month AST. She paid money upfront then submitted Housing Benefit claim with my full approval.

I don't suppose you asked for a guarantor?

4. Upon inspection of the property I together with Leaseholder witnessed evidence of drug abuse

Or reported this to the police?

5. Local authority made T “homeless” then immediately re-housed her, her partner and their baby.

Temporarily or permanently?

6. T mentioned in passing to me something about a joint-tenancy with her partner to cover their new occupancy

This indicates that she is not offering to surrender.

[//simon\\]

I don't suppose you asked for a guarantor?


Or reported this to the police?


Temporarily or permanently?


This indicates that she is not offering to surrender.

No guarantor.

Police were not that interested.

LA said that accommodation is temporary.

I agree that it sounds like T fully expects to return.

[//simon\\]

No, if the tenant moves out then strictly speaking the AST is no longer an AST, but it would become a common-law contractual tenancy and a court order would still be required to evict.

Hi,

At what point would the rules of Abandonment apply?

[westminster]

To be honest, common sense seems to suggest that a new AST would invalidate the old one

A tenancy contract does not magically become "null and void" just because a tenant signs a new tenancy contract with a new landlord. If that were so, then a tenant could easily evade their contractual liability in AST1 by signing AST2.

Or think of it in reverse; if a landlord signs AST1 with T1 then signs AST2 with T2 whilst AST1 is still in place, this doesn't end T1's tenancy.

[jta]

6. T mentioned in passing to me something about a joint-tenancy with her partner to cover their new occupancy

This indicates that she is not offering to surrender.

Simon, you could explain nicely that she would have to surrender the old tenancy before you could consider a new joint tenancy with her partner. Then consider it and turn them down.

If her brains are addled, as I suspect, she might see it as a way to con a bit more cash out of the council.

Underhanded? Of course, but when needs must.........

[Roy_Solomon]

Spam reported.

That isnt spam.

Vexatious reporting reported.

[islandgirl]

Methinks you have a strange definition of Spam, Mr Solomon....the post's content may not be spam but the info at the bottom certainly is. The author is welcome to post advice but without the free advertising (which, as spammers learn to their cost, only puts LLZoners off using their business anyway!)

[//simon\\]

Simon, you could explain nicely that she would have to surrender the old tenancy before you could consider a new joint tenancy with her partner. Then consider it and turn them down.

Hi jta,

Apologies, maybe i have confused matters here - T has signed joint tenancy with partner at her "new address". T has not expressed a wish to change anything about her current AST with me.

Regards,

Simon

[westminster]

Hi,

At what point would the rules of Abandonment apply?

There are no 'rules'; abandonment isn't in itself a procedure backed up by statute.

However, tenancies may be ended if a 'surrender by operation of law' takes place. This is where the actions of both parties are inconsistent with the tenancy continuing. (A surrender may also be effected if both parties sign a Deed of Surrender).

A tenant may make an implied offer to surrender (early, during the fixed term, when he cannot end the contract via a notice to quit) by, for example, abandoning the property, moving out his belongings, returning the keys, telling the landlord/neighbours he's leaving for good, etc. A long absence isn't in itself an implied offer, because the T might well be on a long trip abroad, or in hospital after a serious car accident, etc.

The landlord may, in return, refuse or accept the implied offer by his actions.

A refusal would simply comprise acting as though the tenancy was continuing; in this scenario, no surrender takes place and the LL can continue to hold the tenant liable for rent up to the end of the fixed term.

Legal arguments as to whether or not a surrender by operation of law has taken place may occur when a T has offered an implied surrender, and LL then goes after them for unpaid rent. T may argue that LL accepted the implied offer by, say, allowing his brother live in the property temporarily, etc, etc. An unequivocal acceptance would be reletting the property to a new tenant. Accepting the return of the keys is not in itself an acceptance, because otherwise T could evade his rental liability simply by returning them. Or you'd get into a ridiculous situation with the keys being passed back and forth.

But this isn't the scenario you're in. You are hoping that the T has made an implied offer, but she hasn't; quite the contrary, what she has said indicates that she intends to return, and you know that her current accommodation is only temporary.

However, let's say she had made an implied offer and you knew she'd signed a new AST elsewhere. And you accepted the offer by changing the locks, reletting, etc. There is nothing to stop her subsequently returning and alleging she has been illegally evicted; and because you wouldn't have a court order for possession, you'd be exposed to criminal and civil actions. Whilst you would have a defence (you'd have to prove that you had reasonable cause to believe T had ceased to reside in the property) the consequences should your defence fail are very serious.

In short, the only safe way to proceed is by obtaining a court order, or a Deed of Surrender signed by you and the tenant.