Serving Notice While An Injunction For Peaceful Enjoyment Is In Place

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    Serving Notice While An Injunction For Peaceful Enjoyment Is In Place

    Hi all,

    I am new to this and the situation is pretty complex so please bare with me and any advice would be very much appreciated.

    I have had an injunction put in place after a claim of illegal eviction. Injunction states access to property and peaceful enjoyment. The tenant is on legal aid so has a solicitor acting on their behalf.

    just to give some background information on the situation:
    The tenant never paid rent on time and was in arrears of 4 weeks and this went on for the first few months of the agreement at which point the tenant agreed that she would have the money or leave willingly. Come the date agreed no payment was made and she handed keys over willingly (witnessed by neighbours) saying she will get money paid today. I heard nothing more for 3 days at which point I was contacted by a solicitor asking me to give access back to the tenant and what I have done is illegal. I said I have no issue in giving access back if rent is paid up to date. Next thing I am being served notice to attend court for illegal eviction.

    An injunction was granted to gain access to property, peaceful enjoyment etc but this was just while a defence could be filed. In the mean time further rent has been missed, no payment has been received from the tenant.

    Also the tenant forwarded me a letter saying she wishes to drop proceedings and work a payment plan out, she also wrote to her solicitors and the courts asking for the case to be dropped.

    We agreed a payment plan and I though things were progressing but every payment date that was arranged was missed and after hearing nothing from her solicitors or courts and assuming the case was now dropped I get a letter from solicitors saying I am in breach of the injunction and i have forced them to write letters and been demanding payments that are unreasonable.

    So basically a bunch of lies because they do not want to get up to date with rent.

    So can I serve notice with this Injunction being in place until March 2013 and the tenancy ending in January 2013?

    due to:
    - They are in arrears of 4 weeks
    - Arrears continue to increase because there is a shortfall from payments received from housing benefit and the rent due
    - House is not cleaned and kept in a mess

    Also they have said about the deposit not being in a scheme but I asked for 4 weeks advance and £500 deposit but received 2 weeks and £500 so I take this as not receiving the deposit to protect, is that right or wrong?

    Apologies for the length of this but just wanted to be detailed and gain some advice on what to do moving forward.

    #2
    Serve a Sec 21 notice for possession.
    If you need to know how to do this sucessfully, ask.

    This does not interfere with a tenants "quiet enjoyment".

    According to you, you received the full deposit. Return it to the tenant.
    What date did the tenancy start?
    Allow tenants to protect their own deposits. I want free money when they do it wrong

    Comment


      #3
      If the property is in England or Wales;

      Sounds like you need to get some legal advice yourself. You may be 'new to this' but from the courts point of view you're (and should be) the expert.

      Is all your paper work in order? By that I mean, you have a signed AST, Gas Safe cert for gas appliances etc..... If you had discussed and agreed an early surrender with the tenant then this should have been formalised. The Court has clearly taken the view that any such discussion either didn't take place or was insufficient hence the illegal eviction ruling.

      I assume you want to serve a s21 notice in which case I would serve it on the tenant via their solicitor.

      Regarding the deposit. If the AST states the size / amount / value of deposit then you have to protect it once it has been received in full. If the full amount has not been received then I don't see how you can protect it.
      There is always scope for misinterpretation.

      If my posts can be interpreted in two ways, one that makes you feel angry and one that doesn't, I meant the latter.

      Everyday is an opportunity to learn something new.

      Comment


        #4
        Originally posted by mk1fan View Post

        I assume you want to serve a s21 notice in which case I would serve it on the tenant via their solicitor.
        You do realise that the landlord would have no proof that a notice had been served?
        Allow tenants to protect their own deposits. I want free money when they do it wrong

        Comment


          #5
          Originally posted by Zig View Post
          Hi all,

          I am being served notice to attend court for illegal eviction.
          It's more important to Defend yourself in Court with a Solicitor 1st before serving notice on your tenant !
          Fed up with nitpickers and rivet counters...

          Comment


            #6
            Also they have said about the deposit not being in a scheme but I asked for 4 weeks advance and £500 deposit but received 2 weeks and £500 so I take this as not receiving the deposit to protect, is that right or wrong?
            So you received some deposit: If so that needed protecting. When did the tenancy start?? Any s21 served will be invalid without sorting out the deposit (even if only £1..), possibly requiring you to return it. My understanding anyway, see legislation...
            Housing Act 2004 S213 (8)
            http://www.legislation.gov.uk/ukpga/2004/34/section/213
            (8)In subsection (7) “deposit” means a transfer of property intended to be held (by the landlord or otherwise) as security for—
            (a)the performance of any obligations of the tenant, or
            (b)the discharge of any liability of his,
            arising under or in connection with the tenancy.
            House not cleaned & in a mess is very interesting but as long as when the leave it's OK then the tenant has (as far as most Judges would opine..) done all they need. Keeping coal in the bath is not grounds for eviction... (you could try...)

            Are there any repair issues, however tenuous?? Fix them or that's grounds for defending S8 eviction...

            Think you need legal eagle reading the injunction to see if simply posting S8/S21 notices would break it or not:

            Why did you allow them the keys if they hadn't paid in full??

            Agree with 45002..
            I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

            Comment


              #7
              Originally posted by thesaint View Post
              You do realise that the landlord would have no proof that a notice had been served?
              It's perfectly acceptable to serve legal notice on an individual via their legal representative. Given that in this case the legal representative is already dealing with an issue with the same tenancy then it would seem more approriate. Sending a copy to the tenant to would be a belt and braces approach but I would include that you have also sent it to their solicitor (and vice versa).
              There is always scope for misinterpretation.

              If my posts can be interpreted in two ways, one that makes you feel angry and one that doesn't, I meant the latter.

              Everyday is an opportunity to learn something new.

              Comment


                #8
                Originally posted by theartfullodger View Post
                So you received some deposit: If so that needed protecting. When did the tenancy start?? Any s21 served will be invalid without sorting out the deposit (even if only £1..), possibly requiring you to return it. My understanding anyway, see legislation...
                If the tenancy agreement asigns a value for the deposit - say £500 - and only part of it is received then I don't see how it can be classified [leaglly] as the deposit. I wonder if it has come up yet in court and a Judge has given a ruling?
                There is always scope for misinterpretation.

                If my posts can be interpreted in two ways, one that makes you feel angry and one that doesn't, I meant the latter.

                Everyday is an opportunity to learn something new.

                Comment


                  #9
                  Dunno if it's been to court but, if it isn't "deposit" what else is it??

                  One way or another it seems that it must be
                  property intended to be held (by the landlord or otherwise) as security for—
                  (a)the performance of any obligations of the tenant, or
                  (b)the discharge of any liability of his,
                  arising under or in connection with the tenancy.
                  I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

                  Comment


                    #10
                    Originally posted by thesaint View Post
                    You do realise that the landlord would have no proof that a notice had been served?
                    If a solicitor serves a notice on behalf of a landlord, it's extremely unlikely that the court would refuse to accept the solicitor's witness statement to the effect that he had done so.

                    The witness statement is the evidence.

                    Comment


                      #11
                      I'm thinking more along the lines of the legal defining of a 'deposit'. Hence why I refer to what is in the tenancy agreement.

                      Trying to keep it simple because we're potentially heading off track, if the TA says that the 'rent' is £500 a month and only £200 is paid then the 'rent' hasn't been paid.

                      Likewise, if the TA says that the 'deposit' is £500 and only £200 is paid then the 'deposit' hasn't been paid. Yes, £200 is 'property' but it isn't the agreed property.

                      I fear that, until the full amount is paid, it might be 'nothing' which would not be good for tenants or landlords. Perhaps we've identified a loop-hole?
                      There is always scope for misinterpretation.

                      If my posts can be interpreted in two ways, one that makes you feel angry and one that doesn't, I meant the latter.

                      Everyday is an opportunity to learn something new.

                      Comment


                        #12
                        Westminster's wise words are good enough for me....
                        http://www.landlordzone.co.uk/forums...814#post366814
                        =============
                        Quote Originally Posted by Raiden View Post
                        what if I receive the deposit payment in instalments, for example there are several tenants each paying a proportion, I assume it must be 30 days from receiving the final payments and not the initial partial payments?
                        =========================
                        You assume wrong. Each installment must be protected within 30 days of receipt. But surely it's likely that you'll have each joint tenant's deposit within a 30 day period - ? In which case you can protect it all in one go. E.g. T1 pays on 1st June, T2 on 5th June, T3 on 10th June; you'll still have until 30th June to comply.
                        I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

                        Comment


                          #13
                          Artful quoted the wrong section for the definition of a tenancy deposit. The correct one is s.212(8) and states that a tenancy deposit is money held as security.
                          The tenant needs not pay the full amount agreed, as soon as he pays even one penny that penny is a deposit and must be treated as such.

                          Comment


                            #14
                            We could have been famous (in legal circles) for finding a loop hole!

                            The next logical question is this;

                            If only part of the deposit is received and placed within 'the schemes' what happens at surrender when the tenant questions the amount?

                            Regardless, it should be a timely reminder to landlords to keep their receipt / rent books up to date!
                            There is always scope for misinterpretation.

                            If my posts can be interpreted in two ways, one that makes you feel angry and one that doesn't, I meant the latter.

                            Everyday is an opportunity to learn something new.

                            Comment


                              #15
                              Originally posted by Zig View Post
                              Come the date agreed no payment was made and she handed keys over willingly (witnessed by neighbours) saying she will get money paid today. I heard nothing more for 3 days at which point I was contacted by a solicitor asking me to give access back to the tenant and what I have done is illegal. I said I have no issue in giving access back if rent is paid up to date. Next thing I am being served notice to attend court for illegal eviction.
                              And rightly so IMO. The T's right to access was not conditional on rent being paid up to date. You can only unilaterally regain possession by obtaining a court order. The T *apparently* voluntarily agreed to a surrender, which is fine if that's what happened, however, she went back on it only a couple of days later, (and we only have your version of events), so I think you're on very, very shaky ground.

                              We agreed a payment plan and I though things were progressing but every payment date that was arranged was missed and after hearing nothing from her solicitors or courts and assuming the case was now dropped I get a letter from solicitors saying I am in breach of the injunction and i have forced them to write letters and been demanding payments that are unreasonable.
                              What is the alleged breach of injunction?

                              So can I serve notice with this Injunction being in place until March 2013 and the tenancy ending in January 2013?

                              due to:
                              - They are in arrears of 4 weeks
                              - Arrears continue to increase because there is a shortfall from payments received from housing benefit and the rent due
                              - House is not cleaned and kept in a mess
                              I cannot see how serving notice pursuant to statute could breach an injunction. However, you're extremely unlikely to obtain a possession order via the s.8 route if the amount of rent owing and unpaid amounts to four weeks' worth. And being untidy is not a ground under schedule 2 Housing Act 1988.

                              You should serve a s.21 notice (but see below).
                              Also they have said about the deposit not being in a scheme but I asked for 4 weeks advance and £500 deposit but received 2 weeks and £500 so I take this as not receiving the deposit to protect, is that right or wrong?
                              Wrong. Any sum of money paid as a deposit should be protected. You can't serve a valid s.21 notice unless you first return the deposit to the tenant. Do make sure you obtain evidence of having done so.

                              Apologies for the length of this but just wanted to be detailed and gain some advice on what to do moving forward.
                              Get legal advice from a solicitor or barrister who is specialist in landlord and tenant law (i.e. not the average high street lawyer). I'm amazed you haven't yet done so. Are you aware that unlawful eviction is a criminal offence?

                              Comment

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