AST Tenant refuses to leave

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  • AST Tenant refuses to leave

    Hello everybody. I would be very grateful if somebody could give me some advice.
    I have an AST tenant, whose tenancy ends on 13/09/06.
    I knew she wanted to stay for longer but she didn’t accept a new term, because I tried to raise the rent a bit. Then I served the notice of S21 over 2 months prior. Now she failed to pay the final month’s rent, possibly in ‘revenge’. I have already brought this matter to the small claim court. Furthermore, she indicates a wish to occupy my property until she finds an alternative. In this case she says she will pay the rent per existing rate. I definitely refuse to extend the lease to her. I will apply for an accelerated possession order on 14 /09 06.
    My questions are;
    If the rent is paid to my bank, is she entitled to be a periodic tenant (although I dissent)?
    Should I carry on paying utilities and council tax (under the current agreement), although she is in breach of the contract?
    I want to charge her for the extended occupancy (assuming she stays beyond 13/09/06 and for an unknown period of time thereafter). At what rate can I charge her? Considering that I have no idea when she will leave, and that the contract will have expired, can I charge her at a (obviously higher) daily rate?
    When can I charge her?
    She works as a community support officer; is it possible for me to receive the money she owes me through the employer (the home office) deducting it from her salary (after the court issuing an earning attachment order)?

  • #2
    Originally posted by tommy123 View Post
    My questions are;
    If the rent is paid to my bank, is she entitled to be a periodic tenant (although I dissent)? She is a tenant until the court says otherwise. So basically yes, but even if she didn't pay any rent at all she would still be a tenant.
    Should I carry on paying utilities and council tax (under the current agreement), although she is in breach of the contract? Yes, to do otherwise may well be seen as harrassment.
    I want to charge her for the extended occupancy (assuming she stays beyond 13/09/06 and for an unknown period of time thereafter). At what rate can I charge her? Considering that I have no idea when she will leave, and that the contract will have expired, can I charge her at a (obviously higher) daily rate? I am assuming that you mean over and above the rent. No you cannot do this.
    When can I charge her?
    She works as a community support officer; is it possible for me to receive the money she owes me through the employer (the home office) deducting it from her salary (after the court issuing an earning attachment order)? Yes, it is possible, but you would have to try it to see if it succeeds.
    Hope this helps.
    Any posts by myself are my opinion ONLY. They should never be taken as correct or factual without confirmation from a legal professional. All information is given without prejudice or liability.

    Comment


    • #3
      AST tenant refuses to leave

      It appears that your tenant believes (wrongly) that she has a degree of security of tenure. The law is clearly on your side and you will (eventually) be able to evict your tenant if she continues to refuse to go. Fortunately for you, she is working and you know where she works, so you should be able to recover any money owed through Court action. Just be careful that you dont make any mistakes in filling in the Court forms.

      Comment


      • #4
        I would suggest you agree to work with her until she finds somewhere within reasonable timeframe as effectively she can refuse to leave anyway and you have to get a S21 which runs from 2 months from start of normal due date then if she doesnt leave then you have to apply to court - which for me took another 7 weeks - and even then the court can allow 14-42 working days for them to leave............. so if they want to mess you around they can................ and they can do so in such a way that they dont need to pay.......

        I have had a tenant in my property who should have left in April and they have paid limited rent since then - the law is always on the tenants side in the short term and on your side eventually if you go down the ridiculously biased (towards tenant) legal route

        Maybe I'm sceptical as I was in your position - but they simply didnt leave and then they stopped paying rent........ I think for me I've just been unlucky and have someone whose playing the system (when I went the legal route of S21 thats when the rent stopped and the damage really commenced..... and theres nothing you can do about it) - you should be lucky and agree with her to pay up to when she leaves - allow her say a month to find somewhere - thats reasonable. If she doesnt leave you'll have to go the S21 or alternatively - well I'm sure you can think of one (but think of any consequences and dont do anything yourself!)

        Comment


        • #5
          sti5brigade, tommy123 has already issued a S21 notice, as per:

          Originally posted by tommy123 View Post
          ... I served the notice of S21 over 2 months prior....
          tommy, I am not legally trained but have had some good pointers from other threads.

          First, check, double-check and triple-check that your S21 notice is correct. (see all the other threads on this re correct dates usually).
          Once you are certain that the dates are right, apply to court which you can do straight away, and without giving her further notice that you are going to do so.

          Once you get judgment and the defendant doesn't pay you can apply for an Attachment of Earnings order. This is something that most people are keen to avoid as it also goes on their employment records as far as I know so the possibility that you will apply for it should be incentive to pay. Complete the forms and have them ready to show at the court hearing, to show her you're serious about it.

          You say you've taken the non-payment of rent to small claims already. Have you had a date for any hearing? I'm very surprised you're paying utilities as part of your agreement. That sounds like a licence for the tenant to be completely careless with heating, closing windows etc. I wonder if you will also be able to claim the additional utilities costs under your claim, seeing as these are directly due to her occupancy - anyone care to answer that one?

          One final Q, are you doing this yourself or getting a solicitor involved? For your small claim you wouldn't be able to get your solicitor's costs back, not sure but I think you could claim your costs on the accellerated possession bit.

          Comment


          • #6
            IF the tenancy agreement says that the landlord will pay for the utilities, then no he cannot claim any of it back. Not sure about your comment about AoE going onto employment records...obviously people will know at your place of work, but I don't think it goes onto the company records, and what difference would it make if it did?
            Any posts by myself are my opinion ONLY. They should never be taken as correct or factual without confirmation from a legal professional. All information is given without prejudice or liability.

            Comment


            • #7
              I don't think it goes on your company records... My Ex had a DOA put on him due to CSA arrears.. he simply quit his job! ( something else you have to consider cos you may not find out where he goes!) My ex started back at the same employer after an 18 month gap and nothing has been done about his DOA.. I have had to call CSA and get it sorted from their end (buts a whole other story!)

              I think things like this should go on your eployment record so that it can be implemented each time you move, that way ppl will think twice about a) getting into debt and b) moving employers/quitting work to avoid the DOA.
              GOVERNMENT HEALTH WARNING: I am a woman and am therefore prone to episodes of PMT... if you don't like what I have to say you can jolly well put it in your pipe and SMOKE IT!!

              Oh and on a serious note... I am NOT a Legal person and therefore anything I post could be complete and utter drivel... but its what I have learned in the University called Life!

              Comment


              • #8
                Originally posted by MrShed View Post
                IF the tenancy agreement says that the landlord will pay for the utilities, then no he cannot claim any of it back. Not sure about your comment about AoE going onto employment records...obviously people will know at your place of work, but I don't think it goes onto the company records, and what difference would it make if it did?
                MrShed, I of course only meant for the time that she overstayed her welcome, as you could argue that any future tenancy would not include utilities and council tax, so by her staying she's cost you more money. Just a thought, wasn't at all sure. You could certainly try it and let the judge decide...

                tommy123, be careful of doing anything financially with your tenant that is any different from the current terms, as if you actually accept anything else from her she could argue that as terms of a further tenancy.

                Comment


                • #9
                  Originally posted by Surrey View Post
                  MrShed, I of course only meant for the time that she overstayed her welcome, as you could argue that any future tenancy would not include utilities and council tax, so by her staying she's cost you more money. Just a thought, wasn't at all sure. You could certainly try it and let the judge decide...
                  No you couldn't....the periodic tenancy is on the same terms as the original AST. The only way to get out of these terms is by issuing a new AST, which he obviously does not want to do!
                  Any posts by myself are my opinion ONLY. They should never be taken as correct or factual without confirmation from a legal professional. All information is given without prejudice or liability.

                  Comment


                  • #10
                    Originally posted by johnjw View Post
                    It appears that your tenant believes (wrongly) that she has a degree of security of tenure. The law is clearly on your side and you will (eventually) be able to evict your tenant if she continues to refuse to go. Fortunately for you, she is working and you know where she works, so you should be able to recover any money owed through Court action. Just be careful that you dont make any mistakes in filling in the Court forms.
                    She doe's have a degree of security of tenure until the court makes an order for poccession.By accepting rent you would not be creating a new tenancy as a perodic tenancy would be in existance,just give her no ammo to delay the claim(harrasement,trying to evict etc).As for getting any money owed through court action don't hold your breathe getting the CCJ is one thing trying to enforce it is another.Good Luck anyway.
                    Disclaimer:I have over 30 years experience in housing(both social and private) as an EHO and Building Surveyor.I am also a certified expert witness having spent the last 15years working in housing litigation.The advice I give is from experience in working for various Local Authorities and how the law is interpretated.Housing Law is a minefield and is continually being amended if in any doubt you should consult a solicitor or someone of equal legal standing.

                    Comment


                    • #11
                      Thank you to those who answered my questions.

                      I am not a novice at legal proceedings. For more than a decade, I have been at court regarding family matters. I have paid a fortune to my solicitors and I have been granted cost orders on a number of occasions (90% of the costs successfully recovered). I know in this case I can only recover application fees, meaning it would be foolish to employ a solicitor. Therefore I shall to do it myself.

                      The flat I rent out is a shared flat. I use one room in the flat to accommodate my occasional guests. But the other half of the year, my tenant can use the facilities by herself. I pay all bills because I wish to avoid any dispute over the bills. Now, the cost of utilities has doubled, as I expected, so I have to alter the terms. However she neither accepts the terms nor moves out.

                      She has to file her defense or admission in 10 days. I believe it is an effective punishment for her either way; whether she attends the hearing (having to take a day off) or pays extra money.

                      My new question is:
                      Is it a good idea to make a new claim every month, on the 14th, forcing her to pay the rent (although I dissent, she is my periodic tenant, whether I like it or not)?

                      I shall apply for an accelerated possession order. If I encounter any difficulties when filling in the form, I will post and ask for some help and advice.

                      Once again, thanks to all of you who have replied!

                      Comment


                      • #12
                        Originally posted by MrShed View Post
                        No you couldn't....the periodic tenancy is on the same terms as the original AST. The only way to get out of these terms is by issuing a new AST, which he obviously does not want to do!
                        Sorry MrShed, my fault for not phrasing what I meant clearly enough - I meant a future tenancy with a different tenant.

                        Comment


                        • #13
                          AST Tenant refuses to leave

                          A Community Support Officer with the Home Office sounds like a decent job - even a career post. I'm surprised that she is prepared to ignore the terms of the AST (which part of the Community is she supporting?) and risk a CCJ or Attachment of Earnings order. I believe that you can accept any money she gives you as mesne profits without any risk of creating a new tenancy. If she falls 2 months in arrears, you can of course get a Possession Order almost straight away. Good luck.

                          Comment


                          • #14
                            Originally posted by Surrey View Post
                            Sorry MrShed, my fault for not phrasing what I meant clearly enough - I meant a future tenancy with a different tenant.
                            Ah ha no problem!
                            Any posts by myself are my opinion ONLY. They should never be taken as correct or factual without confirmation from a legal professional. All information is given without prejudice or liability.

                            Comment


                            • #15
                              Hello everybody,
                              After the court issued the notice of the proceeding, she wrote to me and made a settlement offer and paid me the arrears, the court fee and the interest. She gave me an undertaking that she would vacate the flat this Saturday, three days exceeding the fixed term. Now I have successfully repossessed the flat. Taking quick action by applying for the small claim immediately turned out to be an effective crackdown maneuver.
                              Thank you very much to all of you who replied.

                              Comment

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