What constitutes end of tenancy after section 8 served?

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    What constitutes end of tenancy after section 8 served?

    Hello all

    I'm looking for some advice regarding a tenant in arrears.

    AST commenced 1st August 2009 for 6 months, rent payable mothly. This rolled over to a periodic tenancy. Tenant mostly ok, a few late payments, but nothing serious until recently.

    The rent was missed on 1st January 2012 but this was not unusual. The rent was then not paid on 1st February and so I contacted T regarding this. They expressed suprise, said the money had left their account, and would look into it. Since then I've had lots of excuses, claiming problems with the bank, frozen bank account and so on. Kept promising to send cheques etc.. with no money being paid. Now the mobile phone number no longer works and the only contact method is email, which is only occasionally responded to. I live quite far away and have not visited the property since before Christmas.

    I am issuing s8 and s21 on Monday next week and have done a great deal of research using this very useful forum regarding dates and wording and so on. Ideally I'd like the s8 route to be successful so that I can get a money order as well as possession order as we're going to be talking about 7 or more months rent by the time this gets to court. I'm also happy to accept s21 running its course just to get the house back, and then pursuing money claim regarding the arrears. T is employed and I know where they work.

    My question though, relates to what happens after the s8 is served. Assuming that T doesn't respond or tries to defend, it goes to court and hopefully I get both a money order and possesion order. However, what happens if T vacates during the 2 week notice period of the s8?

    I assume that since I've served the notice they can simply vacate in the two week period. How exactly does that work? Is there any requirement for them to give me written notice or even let me know that they are leaving? Can they simply post the keys back? Are they liable for rent until the end of the current period, the end of the s8 expiry date, or the date they move out? Can I still use the s8 to go to court to request the money order if they just vacate but do not pay the arrears?

    Most importantly, what in this case constitutes the tenancy ending? If I just receive keys through the post without any notice, is that enough for them to have complied with the s8? What if they move out, and I hear nothing from them?


    Any help much appreciated, please let me know if you need any further details.

    #2
    How on earth can you let a tenant go seven months into arrears without taking action?

    If tenant is working why has he stopped paying rent?

    If tenant vacates in the weeks prior to court hearing you can still go ahead and get the court order to end the tenancy and the judgement for the money order. Then you have to locate tenant using a tracing agency - sometimes is takes a while for a paper trail to lead to T's new abode to start to enforce the judgement.

    If tenant does not vacate by the date set by the court (usually 14-28days hence) then you will have to get the court bailiff in to remove tenant.
    If tenant writes to you surrendering keys and confirming his intentions that would be perfect. I does not often work like that in practice!


    Regarding Section 8 - if there is any disrepair on the dwelling this canbe used by the tenant as a reason to defend the S8 application. If judge adjourns the case for reports you will have a long wait with no rent. Is the property is sound condition?



    Freedom at the point of zero............

    Comment


      #3
      @Interlaken

      Thanks for your reply.

      The rent is currently 5 months behind and I let it get this far because T is the daughter of a family friend (I know - lesson learned) and they had previously been a reasonably good tenant, claiming issues with their bank. Now it has become very clear that these were lies and I don't know why they've stopped paying. She has a new bf who has moved in to the property and, having spoken with a mutual friend, it seems possible that he may be behind this. The property was in sound condition when I last inspected in December and I've heard nothing from T reporting any issues or requesting any work/repairs.

      I understand that if T does not respond to the s8 then I apply for a court date. If they do not defend, then I'll likely get both a possession order and a money order. And from there it's the baliffs and so on.

      If T does write to me to surrender keys and confirm intentions (but doesn't pay the arrears) then I do not see this as perfect. Yes, I get the property back, but what about the money order? In this situation, while the rent remains unpaid, can the s8 proceed and go to court? Or must I accept possession back and have to start a new money claim to recover the arrears?

      And what if they simply just leave, without writing to me or surrendering the keys? I expect I treat this as if they are still in the property and allow the s8 to take its course? I'm really unclear as to what rights T has once they receive the s8 and s21.

      The mutual friend I've spoken with informed me that they think the bf is planning to move. I have a feeling that they may just do a runner, so I want to make sure I follow the law correctly, rather than just assume anything.

      Thanks again.

      Comment


        #4
        Update:

        S8 and s21 notices were posted (from 2 different post offices, with certificates of posting) on Monday, and today my sister and her husband went to the property to serve in person. They've said that the property has definitely been abandoned; it's been stripped bare from what they can see, including my furniture. The doors were locked, and T has changed the locks. They posted the notices through the letter box anyway.

        Q - do I still need to wait for the 2 week notice period to expire before applying to the court for possession?

        Thanks

        Comment


          #5
          Legally yes.

          Shame about your contents. I would keep an eye on the property daily for any action or anyone else trying to take up occupation.

          I personally might take other action not recommended by this site but only you can decide.



          Freedom at the point of zero............

          Comment


            #6
            If you decide to follow the letter of the law, then do not mention that you think they have left, just carry on as if they were still there.
            You will be lighter in the wallet by £285.00, no rental income for four months, and should have your property back by October to start preparing it for your next tenant.

            If it were my property, I would forget about applying for a possession order, and get in the property immediately, change the locks, report the theft of the furniture, and get the property re-let asap.
            Allow tenants to protect their own deposits. I want free money when they do it wrong

            Comment


              #7
              Thanks for the advice. I'm inclined to follow the legal route and let s8 run it's course because a) I'd like to get a money order (T has assets and is working AFAIK) and b) it seems much safer from what I've read on here.

              @thesaint - when you say 'don't mention that you think they've left' are you referring to the application to the court, or the hearing, or both? What's the reasoning behind this, am I not more likely to get possession sooner if they believe the property to be abandoned?

              Thanks again

              Comment


                #8
                The reason behind thesaints comment is that if none of the tenants are using the property as their principle home, it is no longer an AST. If it is no longer an AST, then none of the 1988 Housing Act applies - no section 8, no section 21.

                Take a look at your tenancy agreement and let us know what it says about you taking back possession if the property is abandoned (there may be a quicker 'legal' route)

                Comment


                  #9
                  A section 8 notice does not end a tenancy. Where the tenancy is periodic the tenant can only end it by serving a notice to quit. If he leaves without notice the tenancy continues. The landlord may then terminate it by serving a notice to quit or by invoking any relevant provision in the tenancy agreement.

                  Comment


                    #10
                    Thanks again for the advice.

                    It's post#8 and #9 that confuse me, as they seem to be contradicting each other. #8 is saying that if T just leaves, the tenancy ends and the act no longer applies, whereas lot's of other posts on the forum suggst that the T remains T until they give proper notice or the court awards possession. For reference, I have included the wording of the abandonment clause from the AST below.

                    5.6 Abandonment
                    5.6.1 If it comes to the attention of the Landlord that the Premises have not been occupied by the Tenant for more than 21 days and the Tenant has not given the Landlord notice in accordance with clause 3.6.4 above, and if, following further investigation by the Landlord, the Landlord forms the belief, and has reasonable cause to believe, that the Tenant has ceased to reside at the Premises, the Landlord may treat the Premises as being abandoned by the Tenant and re-enter the Premises and thereby bring this agreement to an end. Such entry by the Landlord will not affect any right or rights the Landlord may have against the Tenant in respect of any subsisting breach by the Tenant of the Tenant's agreements and obligations under this agreement as at the date of the re-entry.

                    Thanks

                    Comment


                      #11
                      Originally posted by elniinio View Post
                      Thanks again for the advice.

                      It's post#8 and #9 that confuse me, as they seem to be contradicting each other. #8 is saying that if T just leaves, the tenancy ends and the act no longer applies, whereas lot's of other posts on the forum suggst that the T remains T until they give proper notice or the court awards possession.
                      Post #8 does not state that the tenancy ends, it states that you can't use the 1988 housing Act to gain possession of your property.
                      Allow tenants to protect their own deposits. I want free money when they do it wrong

                      Comment


                        #12
                        It states that its 'no longer an AST', which I read to mean that the tenancy ends. If it's no longer an AST, what is it? Does T walking out (without notice or contact) have the effect that I can no longer use the housing act to regain possession? What if T turns up again in a weeks time? I'm sorry if I'm being too daft to understand this, but I'm just not reconciling the idea that T is still T until surrender or legal possession (hence all the advice here about NOT re-entering and changing locks etc..) with the idea that it's no longer an AST when T decides unilaterally to leave.

                        Comment


                          #13
                          Posts 8 and 9 do not contradict each other.

                          A tenancy is an assured tenancy "if and so long as" various conditions are fulfilled, one of which is that the tenant occupies the property as his only or main home. If a tenant under an assured tenancy (which includes an assured shorthold tenancy) gives up occupation it ceases to be an assured tenancy, but not a tenancy. If he returns before the tenancy ends and it is again his only or main home it becomes an assured tenancy again.

                          Comment


                            #14
                            Originally posted by elniinio View Post
                            It states that its 'no longer an AST', which I read to mean that the tenancy ends. If it's no longer an AST, what is it? Does T walking out (without notice or contact) have the effect that I can no longer use the housing act to regain possession? What if T turns up again in a weeks time? I'm sorry if I'm being too daft to understand this, but I'm just not reconciling the idea that T is still T until surrender or legal possession (hence all the advice here about NOT re-entering and changing locks etc..) with the idea that it's no longer an AST when T decides unilaterally to leave.
                            Hence my advice earlier:


                            Originally posted by thesaint View Post
                            If you decide to follow the letter of the law, then do not mention that you think they have left, just carry on as if they were still there.
                            You will be lighter in the wallet by £285.00, no rental income for four months, and should have your property back by October to start preparing it for your next tenant.

                            If it were my property, I would forget about applying for a possession order, and get in the property immediately, change the locks, report the theft of the furniture, and get the property re-let asap.
                            Allow tenants to protect their own deposits. I want free money when they do it wrong

                            Comment


                              #15
                              Thanks again for the clarification, much appreciated.

                              I've still heard nothing from T and so am visiting the property tomorrow to check out the situation for myself. I'm still inclined towards the legal s8 route and will take the advice on-board and not mention my suspicions about the property being empty. The rationale here is that I want to get the money order at the same time as possession, so I can then apply for attachment of earnings. If I get in the property and re-let, I'd have to use money claim and I don't have a current address for service of papers. I'll post an update with any progress. Thanks again for all the advice; I can't state enough how helpful this forum is!

                              Comment

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