Tenant gone AWOL, evicted, threatened to sue, solicitor, legal, ARRGGHH!!!!!

[Kevin Ranton]

Hi guys,

Has been a while since I have been on here, and was wondering if someone could point me in the right direction please.

I have a single male tenant on job seekers who doesn't really live at my property, as he is either at his girlfriends, prison, or mental hospital. But 99% stays at his girlfriends.

With the property being empty it has been keep getting broken into so I've had to go round and replace locks and windows, and it will be a month before he will contact me for the key to the new door as he doesnt really live there.

His jobseekers allowance stopped in October, so I havent recieved any rent since then. He is imposible to get hold of as he doesn't have a phone and doesn't live where he should.

In December there was a big break in where the front door was totaly smashed off the frame, and a window smashed. I replaced the door which had a new lock and told myself if he doesn't contact me soon I'll have to get some new tenants in as he might have done a runner and I can't keep having this empty property.

I gave it untill now to start advertising the property, which is a month after he hasn't had a key and still no contact, and nearly 3 month arrears.

He has just phoned me this evening wanting the key to get back into the property but I dont want him back in. He says he is going to sue me and contact a solictor as it is illegal eviction. But he owes me 3 month rent, has no phone, and doesn't live where he should so how can I give him a notice?????

Any help greatly appreciated.

Thanks, Kevin

[Snorkerz]

He can have a tenancy and not live there.
His tenancy does not end until he offers you surrender / you accept OR you get a court order.

Neither of these seem to have happened so keeping him out of the property would seem to be illegal eviction.

I presume all hs belongings are in there? I presume all his mail is still being delivered there?

If you want him out, you will need to follow either section 8 or section 21 but you really do need to let him back in the property.

IF he were to make a formal complaint about illegal eviction, you may be able to convince a judge that he had surrendered the tenancy by his actions - not being there and not paying rent - put the presence of his belongings would make that one a tough one to succeed with. The fine is up to £5k / 6 months prison and there could be a civil claim too. However, even if you were to be found not guilty then it is an awful lot of stress and potential expense defending yourself.

So far as where to serve eviction papers - at the tenancy address.

[Kevin Ranton]

Thank you for the reply.

All that is in the property that belongs to him is an old sofa and a microwave, as all his belongings are at his girlfriends as he lives there. I'm giving him back the sofa and microwave no problem.

I have now prepared the property for new tenants and would just love a legal leg to stand on of not letting him back in the property. It's just how long can you leave a property empty with no rent coming in before you decide the tenenat has done a runner.

[jjlandlord]

Is there a proviso for re-entry and forfeiture if rent say 14 days unpaid in tenancy agreement?

Others will comment on this and the possibility to rely on it, but if you can show that he no longer lives at the property then tenancy is no longer an AST but a common law tenancy and above mentioned clause will apply.

[Snorkerz]

Others will comment on this and the possibility to rely on it, but if you can show that he no longer lives at the property then tenancy is no longer an AST but a common law tenancy and above mentioned clause will apply.

Totally true if it is no longer his primary residence, but illegal eviction isn't dependant on an AST. If he has a tenancy then either the tenant is evicted or he surrenders -

In this case it would be nice to think he has surrendered the property by his actions, BUT, only a magistrate can decide that for certain. Is that a risk the landlord wants to take with a tenant who is already suggesting illegal eviction?

The legal process for eviction would indeed depend on the tenancy agreement, if there is an apropriate clause then the landlord can apply to the court on form N5.

[Kevin Ranton]

Thank you very much for your replies.

Looks like I'm going to have to meet the tenant face to face and hand him a section 21, and hope he doesn't decide to trash the house within his 28 days. Or just agree not to take him to court for rent arrears if he disappears without a fuss.

I've been a landord for 4 year now and have never had this issue before! So not familiar with an N5 form.

[Snorkerz]

A section 21 is not applicable if the tenancy is no longer an AST - and it can't be if your rental property is no longer his main home.

Why is it not applicable? Because anything in the 1988 Housing Act doesn't apply if it is excluded by it!

Section 1(1)

1 Assured tenancies.
(1)A tenancy under which a dwelling-house is let as a separate dwelling is for the purposes of this Act an assured tenancy if and so long as
(a)the tenant or, as the case may be, each of the joint tenants is an individual; and
(b)the tenant or, as the case may be, at least one of the joint tenants occupies the dwelling-house as his only or principal home; and
(c)the tenancy is not one which, by virtue of subsection (2) or subsection (6) below, cannot be an assured tenancy.

N5 is a standard court form, you fill it in and send 3 copies to the court with the fee of £175.
http://hmctsformfinder.justice.gov.u...ms/n5_0805.pdf

However, lets for one minute work on the basis that the tenancy is still an AST - the notice period for a section 21 is a minimum of two months ad that is only the first stage of the evicion process.

[Kevin Ranton]

Thanks for your help. I think it will be still classed as an AST, as he is down with housing benefits as it being his address.

But AARRGGHH! Sounds like the law is in place to give working class people a hard time yet again. Think my next step is going to try and reason with the tenant. Ask him to disappear and I will write off the arrears. Or the next step looks a boat load of hassle.

[Snorkerz]

I'm not sure - 'principle home' - a microwave and a sofa?

To evict this person should be quicker with the N5 route because a section 21 is likely to take 4 months from now whereas (depending on the wording of your tenancy agreement) N5 should be less than 2 months (ie as long as it takes to get a court hearing).

Please be careful - note the penalties for illegal eviction in post #2 - "Ask him to disappear".

[Parchester]

Offer him a few hundred quid to surrender the tenancy and return the keys. Meet him with a document for him to sign stating this. If he's got somewhere else to live then it's a good bet he'd accept this proposal. It hurts, but will cost you more in the long run if you go the legal route.

[Kevin Ranton]

Thank you guys.

Referring to the part where I agreed to write off his arrears if he just disappeared, would I have a leg to stand on in claiming back my 3 month arrears if I took him to court?

I'll go with the N5 route, or the piece offering idea from Parchester depending on how my conversation goes with him tomorrow.

[jjlandlord]

Totally true if it is no longer his primary residence, but illegal eviction isn't dependant on an AST. If he has a tenancy then either the tenant is evicted or he surrenders -

Of course.
That said the argument is that if T no longer resides at the property and we assume that the tenancy has ended (if proviso for re-entry/forfeiture) what would then be illegal eviction?

I'm not suggesting that it'd necessarily be worth trying to go to court to test the above, though.

[Parchester]

Thank you guys.

Referring to the part where I agreed to write off his arrears if he just disappeared, would I have a leg to stand on in claiming back my 3 month arrears if I took him to court?

Depends if it's in writing or not, but do you really think he will have money to claim back? If it's only three months I'd just write it off as the stress and time in chasing the debt down will hardly be worth it. If you go the legal route it could well be another three months before he's out so Id prepare a surrender agreement for him to sign and take a few hundred quid cash with you to lay on the table. The sight of money is often enough to make such an agreement be accepted on the spot.

[Kevin Ranton]

Thanks Parchester, thats one of the routes I'm going to go down tomorrow it the threat of taking him to court for arrears doesn't work.

Well wish me luck! Ha ha

[westminster]

Is there a proviso for re-entry and forfeiture if rent say 14 days unpaid in tenancy agreement?

Others will comment on this and the possibility to rely on it, but if you can show that he no longer lives at the property then tenancy is no longer an AST but a common law tenancy and above mentioned clause will apply.

What is relevant is whether the Protection from Eviction Act 1977 applies. And it applies to common law tenancies as well as ASTs, so regardless of a proviso for re-entry, it's highly likely you'll still need a court order to legally evict the occupier.