No written Letting Agreement with unpleasant T- help!

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    No written Letting Agreement with unpleasant T- help!

    Following a vicious assault a family member needed to move house asap.

    we were looking for a new tenant and as person was hubbys sister & bro in law & their children, allowed them to move in.

    No written tenancy agreement was ever drafted or signed. Moved in November 2008. all was amicable and never thought family would rip us off etc - very naive!!

    house was upgraded considerably but they have neglected/damaged and i am heartbroken.

    Behind with rent constantly and at present owes 2 months rent plus arrears owing from a year ago.

    Now dispute between her and hubby and in July she sent us a text message saying giving us 3 months notice and would be out of property first week of october.

    I wrote letter saying we agreed to her giving us 3 months notice and gave the date for moving out. i also detailed the date the rent was due to be paid and the amount of arrears owing and the dates when arrears were to be paid.

    Now she says as she sent a text message to me it was not legally binding and therefore invited me to evict her using section 21. This confused me but then i realised she needed the section 21 to go to the council to be placed on homeless list.

    If i use section 8 she will be deemed as making herself homeless due to non payment of rent.

    I had a section 8 notice served on her yesterday and now i have received a text stating that as no written tenancy agreement was in force it has to be a section 21.

    Obviously i will be seeking legal advice but hubby out of work etc and im struggling as im having to cover the mortgage on the property as she not paying rent.

    House is neglected, carpets ruined and lino ruined in kitchen
    Furniture damaged, items from house put outside in rain as to lazy to put in garage
    Garden overgrown and full of rubbish (very embarassing)
    rent never paid on time
    two months in arrears

    i thought this satisfied Section 8

    I need to know if i can use Section 8 as i need her out asap

    im so stressed i havent eaten in 3 days, can someone offer me some advice please

    Thank you in advance of any input

    B1ue

    #2
    You can most certainly use section 8 (grounds 8, 10 and 11).

    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


      #3
      I understand I have grounds to issue a section 8 however

      as there is no written/signed tenancy agreement i have been told by my sister in law that section 8 cannot be used

      Comment


        #4
        Originally posted by B1ue View Post
        No written tenancy agreement was ever drafted or signed. Moved in November 2008.
        There is still a valid oral/verbal contract. Assuming the property is in England/Wales, and the agreed rent was less than £25,000 per annum, then it is an assured shorthold tenancy.

        I had a section 8 notice served on her yesterday and now i have received a text stating that as no written tenancy agreement was in force it has to be a section 21.
        Your sister-in-law is wrong. You can apply for possession via s.8 procedure.

        BUT take note of the following advice from two forum members:
        Originally posted by Editor View Post
        No agreement does not mean there is not a legal tenancy, just that you are in a weak position when it comes to proof.

        When you go to court you will need to prove to the judge that this tenancy exists and has existed for the time you say by other means than an agreement.

        Produce a schedule of rent payments received from day one, backed up by bank statements and you should have been declaring this income on your Self Assessment Tax Return which will provide additional proof.

        If you have received rent payments by cheque or standing order there's no problem, if by cash then it's more difficult to prove.

        Your tenant has been paying Council Tax for this period at this address - get proof of this. If the Council refuse evidence on Data Protection grounds, tell them this is in pursuit of a legal claim, which is allowed (DPA P4 S35).

        Your evidence must be watertight - if it is, there's no reason why you should not be granted possession and if you go about it the right way you will get all your rent arrears with costs.
        Originally posted by Bel View Post
        You would be wise to get legal advice from someone who specialises in landlord tenant law.If you get something 'wrong' you may need another day in court and the whole eviction process takes a lot longer.

        Things you may need to consider:

        Even though a tenancy agreement does not have to be written down, a tenant can demand to have a written statement of the terms of his tenancy which you must send to him in 28 days. If in court he says he asked for one and you didn't give him such a statement, your case might not be so straight forward.

        You should also consider serving the tenant a section 47/48 notice with your address for service of notices and payment of rent. This normally is included within a written AST, but as you dont have a written one, you should do it in case the judge takes the view that no rent could lawfully be demanded without the formal notice.
        And back to the last question:
        Originally posted by B1ue View Post
        House is neglected, carpets ruined and lino ruined in kitchen
        Furniture damaged, items from house put outside in rain as to lazy to put in garage
        Garden overgrown and full of rubbish (very embarassing)
        rent never paid on time
        two months in arrears

        i thought this satisfied Section 8
        Ground 8 of section 8 is the mandatory ground - meaning the court must order possession. To fulfill this ground, there must be, at the time of the court hearing, at least two months' rent owing and unpaid.

        Note that, while you must provide a schedule of rent owing/paid/unpaid to support your application, it is up to the tenant to prove that they paid any allegedly unpaid rent.

        Unless you had a check-in inventory carried out at the start of the tenancy (unlikely!), forget it in terms of claiming for damage to the property.

        Comment


          #5
          Westminster,

          I have been told that without a written agreement the default is for the rent to be paid at the end of a period and not in advance, and therefore for the rent to be unpaid, that two period and 1 day would have to have pasted, not one period and 1 day, like a normal advance payment AST. Is this true?
          Disclaimer: What I say is either right or wrong. It may be advisable to check what I say with a solicitor. If he says I am right then I am right, unless he is wrong in which case I am wrong; but if he says I am wrong then I am wrong, unless he is wrong in which case I am right

          Comment


            #6
            Originally posted by mjbfire View Post
            Westminster,

            I have been told that without a written agreement the default is for the rent to be paid at the end of a period and not in advance, and therefore for the rent to be unpaid, that two period and 1 day would have to have passed, not one period and 1 day, like a normal advance payment AST. Is this true?
            Yes. In the absence of an agreement (written or oral) the default is indeed that rent is due in arrear. In which case, for two months' rent to be owing and unpaid then it would be as you say.

            Most written contracts do, of course, specify that rent is due in advance.

            Comment


              #7
              This is something I read on the consumer action group website:




              A verbal tenancy can't be ended under section 8 of the 1988 Act, so the existence of rent arrears is not a ground for possession. To obtain possession the landlord would have to give a section 21 notice, and bring a seperate court action for the arrears of rent.



              This is why im concerned that I cannot rely upon the Section 8 notice.

              in a way i dont want to give a section 21 as i know she will get straight onto the housing list and move out and i wont get paid the arrears or any rent up to the date she finally moves out.

              Ive accepted i wont get any money for the furniture etc.

              im just angry she gave 3 months notice, then went back on it and is now demanding i serve her with a section 21 so she gets on the council housing list

              Comment


                #8
                Serve the section 21. If she gets a council house so be it. The most important thing is to get your house back. You can always go to small claims court for any arrears at some point after she has gone. If the argument against that is that she would have no money to pay CCJ then the same stands now. You can't get blood out of a stone, as it were. Myself, I would be bloody minded enough to send in the bailiffs or get an attachment of earnings or benefit.

                Comment


                  #9
                  Er, OP did you take a deposit by any chance? If you did - and didn't protect it - then you cannot evict under a section 21. This is one situation where it would be better not to have taken one!

                  Comment


                    #10
                    Originally posted by B1ue View Post
                    This is something I read on the consumer action group website:

                    A verbal tenancy can't be ended under section 8 of the 1988 Act, so the existence of rent arrears is not a ground for possession. To obtain possession the landlord would have to give a section 21 notice, and bring a seperate court action for the arrears of rent.

                    This is why im concerned that I cannot rely upon the Section 8 notice.
                    Don't believe everything you read on CAG. Read Section 8, Housing Act 1988 - link here - and note how it fails to mention anything about not being able to use it for oral/verbal tenancies.

                    im just angry she gave 3 months notice, then went back on it
                    Even if she'd sent a letter giving notice to quit, then didn't leave, you'd still have had to obtain a possession order.

                    Comment


                      #11
                      Everybody here has given sound advice. Unfortunately, due to the high percentage of Housing Benefit tenants we look after, we've had to do a number of evictions over the years, including ones on direct family members of landlords. It's not rocket science, but you must get it right, or you will end up extremely frustrated and more out of pocket.

                      The forms you need to complete court paperwork are downloadable for free from the HMSO website, and somewhere (on the RLA website or maybe here?) someone has written an article about how to complete the process. There is also one in the content section at Letmatch.

                      Read them all through twice and read them carefully. It's worth half an hour of your life, believe me!

                      You haven't mentioned a deposit. Is there one?

                      Comment


                        #12
                        At this point we usually mention the 'distress for rent act 1737'. Since she went back on her notice you can charge her double rent until she does leave.

                        It's still good law.
                        I offer no guarantee that anything I say is correct. wysiwyg

                        Comment


                          #13
                          No deposit taken as emergency at the time and we were ensuring safety of the sister & kids.

                          Ive taken advice from a solicitor and even without a written agreement i can still use Section 8.

                          Im kind of hoping they pay the arrears due to panic and will then issue a section 21

                          Thanks for all comments, its been a relief to have some input as dealing with this alone

                          thanks guys

                          Comment


                            #14
                            How do I sue tenant for unpaid rent? Section 8 served

                            In short family members moved in quickly, no written agreement but verbal which is an AST....... Due to 3 months rent arrears and neglect section 8 notice served on tenant..

                            They have agreed to move out on 15 Oct 2010, however, how do i sue for the rent arrears?

                            Do i issue using the Section 8 proceedings or do i make a claim at the small claims court

                            Any answers appreciated, thank you

                            B1ue

                            Comment


                              #15
                              Don't assume that they will move out on the 15th - tenants may just be playing for time.

                              It is only a few days off. If they do go, AND, surrender the property to you, then claim at www.moneyclaim.gov.uk

                              If they don't go then start your possession claim at www.possessionclaim.gov.uk - this will include an award for the missing rent if you are successful.

                              Getting a court order is one thing - getting money out of people who haven't got any is totally different.

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