one (of four) tenants not paying rent on a joint and several tenancy

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    one (of four) tenants not paying rent on a joint and several tenancy

    Dear all

    I have a knotty – but fundamentally simple – problem with a tenant not paying his rent.

    I let a house to four students, who are jointly and severally liable on an AST. They are supposed to pay £1420 a month in rent, which they split roughly equally between the four of them. They each pay their shares to me individually.

    Three of the tenants have been paying their rent regularly with no problems. One, however, has missed the past three months’ payments and now owes me £1005.


    I have given him an ultimatum that he must pay his full month’s rent and part of the backlog every month from now on, starting on 1 January. If he does not, I would like to start to take action against him resulting in possession and also forcing him to pay the rent he owes.


    I have read this article on Landlordzone – http://www.landlordzone.co.uk/rent_a..._evictions.htm – but I still have some questions before I serve a s.8 notice (the tenancy is for a fixed term and does not end until 1 August 2013. I understand that this means that a s. 21 notice cannot be served – is this correct?). The questions are:

    1. I understand that the s. 8 notice needs two months’ rent to be outstanding. The tenant in question is a full three months behind on his rent, but as it is a joint and several tenancy does this mean that the rent for the whole house needs to be at least two months in arrears? (i.e. in this case £2840 would need to be outstanding – which would effectively mean that the non-paying tenant could live in the house rent-free until the end of the term anyway!)

    2. I understand that I will have to serve s. 8 notices on all four tenants, and then offer the three paying tenants and a replacement to the non-paying tenant a new tenancy. Is this correct?

    3. I understand that possession proceedings are separate from rent recovery proceedings. Could I launch a small claims court claim against the non-paying tenant while he is still living in my house? (perhaps even before starting possession proceedings). This would be useful because at least I know where he is when he is living in my house!


    I am aware that as the contract allows for joint and several liability, I can pursue any of the tenants, but as three of them have been paying their rent diligently I feel it would be unfair to pursue them for the rent (although I might be legally entitled to).

    Thank you in advance for your help.

    #2
    Surely the easiest way forward is to press the others into paying up for the debt of the other. Let them sort it out rather than you do all the running. If you go down the S8 route then you will end the tenancy of all the tenants.

    Does the debtor have a guarantor?



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

    Comment


      #3
      You can not evict a single tenant in a joint tenancy, you must evict all four for together they are 'the tenant'. You can issue a section 8 notice on ground 10 as soon as even 1p of their joint rent is unpaid, but (presuming rent due monthly) there needs to be £2840 unpaid before you can serve a section 8 notice under ground 8.

      If you gain possession against the 4, ow do you anticipate enforcing it against just 1 of them? If you use the only legal enforcement menthod - Bailiffs - they will physically remove all 4.

      You are correct that you can decide against eviction and sue for unpaid rent against the non-payer (or all tenants) as it falls due. However, note that a section 8 eviction notice can come with an order for unpaid rent at no extra cost.

      Comment


        #4
        Originally posted by Gwan Galon View Post
        I let a house to four students, who are jointly and severally liable on an AST. They are supposed to pay £1420 a month in rent, which they split roughly equally between the four of them. They each pay their shares to me individually.

        Three of the tenants have been paying their rent regularly with no problems. One, however, has missed the past three months’ payments and now owes me £1005.
        Together the students comprise 'the Tenant', not four quarters of a tenant; all of them are jointly and individually liable for all of 'the Rent'. So, legally speaking, all four joint tenants owe you £1005.


        I still have some questions before I serve a s.8 notice (the tenancy is for a fixed term and does not end until 1 August 2013. I understand that this means that a s. 21 notice cannot be served – is this correct?).
        A s.21 notice may be served at any time after the tenancy has begun and after any deposit paid has been protected and the prescribed information given to the T. The notice must give at least two months and should not expire before fixed term expiry.

        I understand that the s. 8 notice needs two months’ rent to be outstanding. The tenant in question is a full three months behind on his rent, but as it is a joint and several tenancy does this mean that the rent for the whole house needs to be at least two months in arrears?
        Yes, if you wish to cite the mandatory ground 8 in the s.8 notice.


        I understand that I will have to serve s. 8 notices on all four tenants, and then offer the three paying tenants and a replacement to the non-paying tenant a new tenancy. Is this correct?
        Any notice served must name 'the Tenant', i.e. all four students. You can serve four copies of the notice, one addressed to each individual student. After the notice expires you will then be entitled to apply to the court for a possession order. If you obtain one, then you will need to ask a court bailiff to enforce it. The bailiff will evict everyone from the property, and the current tenancy will end at that point. Only then will you be in a position to grant a new tenancy.

        Could I launch a small claims court claim against the non-paying tenant while he is still living in my house?
        Yes, you may bring a county court claim against the one who isn't paying his 'share'. If the amount is less than £5K the claim will be allocated to the small claims track.

        You may think it unfair to claim against all four as co-defendants, however, as Interlaken points out, a claim against all four would encourage them to sort it out amongst themselves, as the three who've paid will pressure the fourth to pay up. If he doesn't and they end up having to pay, then they can claim against the non-payer.

        Personally, I'd recommend that you claim against all four as this is the best way of ensuring you get the money they owe you.

        Comment


          #5
          You can always get possession of the property, and then allow the other 3 to return immediately.

          You would then have the option of who you want to chase for the money(i.e the non-payer).
          Allow tenants to protect their own deposits. I want free money when they do it wrong

          Comment


            #6
            Everyone.
            Thank you for your advice which is valuable. I am currently sifting through and pondering it.

            Comment


              #7
              Good luck.

              Comment


                #8
                In practice your best option is to contact the non-payer's Guarantor. You did get a Guarantor for each student, I take it?
                'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

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