Tenancy expires soon but T is missing from property

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    Tenancy expires soon but T is missing from property

    Can anyone advise me what we should do next?

    We have a flat let on a AST for the period 12 months from 1.1.2006.

    The tenant has been problamatic from the start in that after signing the tenancy agreement and moving in he failed to set up a standing order to pay the monthly rent, as is required as a condition in the rental agreement. He pays the rent each month by going into a bank and paying over the cash into our account. We let this situation ride initially but then the payment of the rent started to get later and later each month. We decided not to renew his tenancy agreement when it expires at the end of the year but were late in issuing a Section 21 notice. Thus, the notice was given on the 30th November for the 2 month period expiring on 31st January 2007. It was given in writing and delivered in person with an independent witness. The rent is normally due on the first of each calendar month. I believe that we have satisfied the Section 21 criteria. Along with the formal Section 21 notice we wrote a very nice covering letter saying that we wanted to regain possession of our flat as my brother is returning from travelling early in the New Year and would need to live there for a few months. We asked the tenant to try to vacate the flat earlier than the 2 month period and hoped he would do this as we had always tried to be reasonable with him about his late rental payments etc.

    Well, after delivering the Notice, we went home and waited fully expecting to get a call within a couple of days. That was now more than 2 weeks ago and we haven't heard a thing. We have tried calling his mobile but it always go to answer machine. We have left messages and been round to the flat many times and he's never there. No one has seen him for some time. His post box is looking rather full.

    What we want to know is what happens if he has gone away and hasn't yet read our letter or has read it and is choosing to ignore us? Coincidently this months rent due on the 1st December hasn't been paid so we are keen to catch up with him to sort that out.

    We have also called his employer to see if they know where he's gone but they tell us he no longer works for them. He was only ever a contractor and not a full employee.

    Can anyone tell us what right we have to enter the property? Should we wait for the Section 21 notice to expire before doing anything else? It looks like his possessions are still in the flat.

    It is also a condition of the lease that the property is not left unoccupied for periods exceeding 3 weeks and that too has now been breached.

    Some helpful advice would be very gratefully received.

    #2
    Tenancy could continue by operation of law- no action by either party required - but it cannot be an AST if T no longer using it as only or main residence.
    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).

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      #3
      Is it possible to look inside to see whether it appears to be empty? Also, what about the neighbours, do they have any information? Legally, I don't think you can enter until 1st February but advice given to me on this forum in similar circumstances was to put a letter through saying that as the flat appears empty and notice has been served, you will assume he has given up the tenancy and will take possession in seven days. Note though that you should only do this if you are genuinely sure he has left permanently.

      Comment


        #4
        Originally posted by jeffrey View Post
        Tenancy could continue by operation of law- no action by either party required - but it cannot be an AST if T no longer using it as only or main residence.
        Hi Jeffrey
        Thank you for your reply but could you clarify please - we don't want the tenancy to continue and hope the law will assist us in ending it rather than supporting the tenant in staying. He is in arrears with the rent and has gone AWOL. We granted him the lease as an AST and it was his main residence as far as we were aware. it is only these last few weeks that he has gone missing. Surely we don't lose the protection of the law pertaining to AST becuase our tenant may have decided to do a runner?? Or am I totally misunderstanding your drift?

        Please clarify as I am feeling increasingly uneasy but don't want to enter the flat illegally.

        Thanks

        Helen

        Comment


          #5
          Contractor

          Be careful if the tenant is a contractor he may be only working away from home for a few weeks
          I would wait and see if he comes back for Christmas especially if that is his main residence

          Comment


            #6
            Hello again and thank you for the further replies.

            The plot thickens. We have been round to the flat again tonight and it looks like someone has been there since we last checked. The post box is empty.
            We have been inside the lobby area and put another copy of our notice letter under the door of the flat rather than in the post box outside - he definitely can't say he didn't receive it now.

            We also managed to catch the neighbours at home and they said they had not seen our tenant for some time. All the flats have an allocated parking space and theirs is next to ours and they said the tenant's car has been gone for a good couple of weeks - they couldn't be more precise. We still have not entered the flat but from what we could see there still looks to be some furniture in it.

            So, we still don't know if he has our letter of the 30th November but can be sure that if he comes back to the flat again, he will not be able to avoid the copy. Can anyone tell us what we do if we do not hear from him by the end of January and he hasn't paid the rent or moved his stuff out? Will we be sure of a court possession order and can we apply for this before the 31st January deadline arrives? How can we prove abandonment?

            thanks again

            Helen

            Comment


              #7
              How about putting some coloured Stiky tape over the lock on the door, that way you will know if someone has been into the property!

              What does your tenancy agreement say about serving notices?? From that you should be able to guage whether you shoul dgive it to the tenant face to face.
              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
                Could you not drive by in the evening to see if there's any lights on, or ask the neighbours to give you a ring if they hear him/see him in the flat?

                Comment


                  #9
                  Please posters be straightforward with advice!
                  1. Jeffery only confuses the issue of main residence; it was at the time of letting so it's not important to bring it up now as it's irrelevant.
                  2. Having served the first Notice personally with a witness in attendance, was it left in the lobby or put under the door of his premises? If the former it might not have been properly served and would refer you to the wording within your tenancy agreement concerning such service.
                  3. Why leave it until 30 November to serve the Notice when it was the final day in order for it to be served to end the tenancy on 31 January; before might have been better but never mind, I'm probably splitting hairs.
                  4. Do not under any circumstances enter the flat until you have a possession order from the court, which you will not be able to apply for until 1 February at the earliest, and it could be a few weeks after that before you get it.
                  5. There's nothing wrong in serving a S.8 Ground 8, 10 & 11 Notice now if he is in arrears by more than two months (remember rent is due on 1st of each month so arrears of 2 months can occur 31 or 32 days following month of failure to meet rent in the first instance), it might get you possession a bit earlier.
                  6. The tenant doean't have to be there in order for Notices to be validly served at the premises, just make sure it goes under his door, and if possible use your witness again. (Even if he has moved out in law you only have to serve Notices to the tenant's "last known address" which of course is the property he rented from you).
                  The advice I give should not be construed as a definitive answer, and is without prejudice or liability. You are advised to consult a specialist solicitor or other person of equal legal standing.

                  Comment


                    #10
                    Originally posted by Paul_f View Post
                    There's nothing wrong in serving a S.8 Ground 8, 10 & 11 Notice now if he is in arrears by more than two months (remember rent is due on 1st of each month so arrears of 2 months can occur 31 or 32 days following month of failure to meet rent in the first instance), it might get you possession a bit earlier.
                    The S8 route also allows you to include a money claim, ie for your arrears and court costs, which would save you having to make a separate claim for this if you use the S21. And if nothing else, it might prod him into paying enough back rent to maintain the arrears below 2 months, in order to invalidate the mandatory S8 - but that can be good thing for you in terms of minimising the total loss, if you subsequently action the S21.

                    Comment


                      #11
                      Section 8 Notice can still be valid even if arrears reduced to <2 months; grounds 10/11 might be available.
                      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


                        #12
                        Hello again everyone and thank you for your continued advice here.

                        Just to recap:
                        The first S21 was delivered in person on 30 November into the flat's individual postal box situated on the outside of the building (because being flustered and stressed about getting the wretched thing delivered that day and being dippy anyway I totally forgot to take the lobby key with me!)

                        The copy of it was delivered last night by my husband, who being less dippy than me, yook the key and was able to enter the lobby and post it under the door of the individual flat.

                        Rent: is due the 1st of the month so the tenant is currently 1 month in arrears as he didn't pay this month. Do I take it he officially becomes 2 months in arrears on the 2nd January 07 and on that day we could serve the S8 notice in addition to the S21 we have already served?? Please can someone confirm this.

                        Lastly, (and please see my other thread for full detail) we know the tenant was home at 7am this morning but he wouldn't open the door. I think he's doing his best to avoid speaking to us. He has had all day to call us and hasn't.......as well as the last 3 weeks! My husband is going back round there after work today to try again. As you can imagine this isn't making for a very nice Xmas break for him - he needs a rest as he's an overworked teacher!
                        I am worried though what might happen if when confronted the tenant turns nasty.......are we best to admit defeat and just let the legal wheels turn albeit slowly?

                        Thanks again
                        Helen

                        Comment


                          #13
                          Originally posted by HelenP View Post
                          Rent: is due the 1st of the month so the tenant is currently 1 month in arrears as he didn't pay this month. Do I take it he officially becomes 2 months in arrears on the 2nd January 07 and on that day we could serve the S8 notice in addition to the S21 we have already served?? Please can someone confirm this.
                          Correct on both counts.

                          Originally posted by HelenP
                          Lastly, (and please see my other thread for full detail) we know the tenant was home at 7am this morning but he wouldn't open the door. I think he's doing his best to avoid speaking to us. He has had all day to call us and hasn't.......as well as the last 3 weeks! My husband is going back round there after work today to try again.
                          I would suggest he doesn't do that; or if he does, he just knocks once, and then leaves if there's no answer. Firstly, it's patently obvious that this tenant doesn't want to talk to you - so think about it: if you bang on the door for ten minutes he's hardly likely to change his mind, and think, "oh OK, I'll open the door now". You'll just end up more stressed and frustrated; and potentially it won't look good in court, as your tenant might well turn things round to make it appear you're harrassing him "I didn't open the door because I was too scared" etc etc - get the picture?)

                          Seems to me that you should probably consider now that your relationship has broken down and you should only communicate formally in writing (bearing in mind all the time that a judge will see all your correspondence - use that to your advantage). Also, if you now resign yourself to the fact that you won't be talking to this person again, and that you even won't be attempting to, then take it from me: it will be far less stressful for you and you'll have a much better Xmas. Just let the legal procedure take its course, in its own sweet time.
                          Last edited by Ericthelobster; 19-12-2006, 15:20 PM. Reason: typo

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