Claim struck out by judge

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    Claim struck out by judge

    We have had trouble with a tenant for months.

    Now owes over £2K. After two months arrears the Council now pay part direct to us.

    £100 short on monthly payments made by Council.

    Will not answer door, phone, texts or letters.

    Paid £175 to court for possession order, having served notice as per ourassured shorthold tenancy agreement, served further notice and now via
    court Section 20.


    We never take a deposit, which I understand is to pay for and dammage,gardening or other problems to the property at the end of a tenancy.

    We DO ask for two months rent on take up of the tenancy, to give us a buffer month to chase tenants for late or non payment of rent on time.

    In over 40 years of letting, we have never experienced this problem before.

    From the Judge's comment, he is classing the extra month's rent as a
    deposit.

    Can I contest this or what is my next best move to get this tenant out of the property please?

    Regards

    Calvados

    #2
    Unfortunately, unless the extra months rent is for a specific period of time - eg 24th Dec 2012 to 23rd Jan 2013 not "last month of the tenancy" then it is indeed considered a deposit.

    http://nearlylegal.co.uk/blog/2009/0...eposit-honest/

    I suggest you ask the tenant to agree (in writing) that you use the deposit amount against the unpaid rent, thus reducing rent owed but meaning there is no longer a deposit - meaning you can re-serve a section 21. The tenant has no obligation to agree to this. If he doesn't, then before you can issue a valid s21 you will need to return the deposit amount to him.

    Another option, which should not be affected by the deposit situation is section 8. You state there is 2 months arrears - is that the actual amount unpaid? With or without the extra months rent/deposit?

    I say it shouldn't make any difference - though there have been cases where the tenant has counter-claimed http://england.shelter.org.uk/forums...=573&#entry573 This particular report was with regard to the original 2004HA version of the rules and there has been case law and statutory revisions since then, but the principle is still there.

    Worth bearing in mind that the tenant could potentially sue you for not protecting this 'deposit' and be awarded up to 3 times the value of the deposit. Returning it or ending the tenancy won't change that situation so it may pay to tread carefully to avoid antagonising the poor tenant

    Maybe the legal equivalent of a bribe would be in order? If you leave voluntarily before the end of January I'll write off everything you owe me (sounds like it would be difficult to recover anyway) and bung you £xxx. Everyone has a price. You should take legal advice over the correct wording to ensure such an offer is within the law and that the deed of surrender, when the time comes, does what you want it to do.

    Comment


      #3
      Originally posted by Calvados View Post
      We never take a deposit, which I understand is to pay for and dammage,gardening or other problems to the property at the end of a tenancy.

      We DO ask for two months rent on take up of the tenancy, to give us a buffer month to chase tenants for late or non payment of rent on time.
      As to the first paragraph, the agreement between the parties determines what a deposit is for. In the absence of agreement I suppose it has to be implied that it covers any loss incurred by the landlord arising out of the tenancy, though it could be argued that if it is not stated what it is for it ought to be returned.

      The second paragraph does rather contradict the first. Regarding the extra month's rent as a "buffer" is really treating it as a deposit.

      Comment


        #4
        Thank you to Snorkerz and Lawcruncher, for the replies on this.

        Does this mean that no one can ask for a two, three or whatever rent in advance?

        If you can, then what is wrong with rent in advance as opposed to a deposit.

        I have a problem seeing why we can not stay with a situation of a rent at two
        months in advance, especially when it is possible to have quarterly rent on commercial properties.

        I have a friend that has a rental with the tenant having paid six months in advance and another with a tenant having paid the full twelve months in advance, so what is the problem with wanting to stay two months in advance please?

        In our experience any deposit in the past has never covered remedial work required, so we gave up on taking them.

        We also gave up on offering furnished or part frurnished.

        We do not provide any electrical equipment.

        We do take out a proper landlord building insurance, but any contents cover is left to the client.

        The tenant in question now owes nearer £3K, after taking in to account the two months rent in advance, which is of course more than used up.

        If as snorkerz says, I would have to return the so called deposit, what about the
        repairs required to problems caused by the tenant. Do we not have any right to recompense?



        Regards

        Calvados.

        Comment


          #5
          It depends what you mean by "rent in advance". If you mean that you always hold a month's rent in hand then that is in danger of being treated as a deposit.

          Comment


            #6
            How is it different to a deposit? Is the only difference the purpose for which it can be used to be limited to rent arrears? In my (inexperienced) mind, you are holding tenants money as collateral for the possibility of a future loss. Isnt that a deposit?
            All views posted reflect my personal opinion only and do not constitute professional advice which I am not qualified or knowledgeable enough to provide.

            Comment


              #7
              The law is clear as to the definition of a tenancy deposit:

              “tenancy deposit”, in relation to a shorthold tenancy, means any money 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.
              With that it mind it should be clear to OP that "two months rent on take up of the tenancy, to give us a buffer month to chase tenants for late or non payment of rent on time" fits the definition rather neatly.

              Comment


                #8
                Increasingly erratic and inept court service, deliberately diluted “No Fault” possession route and the Court Bailiffs taking more than 10 weeks to carry out enforcements. I am getting out letting properties to residential tenants. I will not buy any more properties. I will not sell the properties that I have in London. I will find alternative uses for them.

                Also, BTL buyer beware. Unless you can afford to keep the mortgage going for unto 18-24 months without getting stressed out on default don’t by properties for BTL. Also, pension funds, insurance companies should not get enticed into residential property investments unless government reforms the law and eviction process. That’s my opinion.

                Comment


                  #9
                  Thank you for your opinion 4valueguy and welcome to the forum.

                  As in any business, we have to work with the tools/facilities that are available to us. The successful ones learn how to use those facilities/tools in the best manner.

                  Comment


                    #10
                    Thank you for welcoming me and also putting across your point of view.

                    I don’t want to be negative about residential investments as I will still have some rented properties in my portfolio. However I am trying to highlight that the residential property landscape has changed over the last 8-10 years. What Mrs Thatcher intended with Housing Act 1988 has been diluted over the last few years and therefore the tools/facilities available to landlords have become less efficient and ineffectual. Landlord bodies are also unable to influence the law makers about the ‘waste’ and inefficiency built into the system.

                    In addition, the recent wave migrations also have brought both opportunities and threats to Landlord. I am aware of some recent EU migrants after years of paying rent promptly are purposely falling into arrears knowing court system is slow and it will take landlords several months to get the house back.

                    As investors, we should be aware of our investment landscape and I am sure you will agree that part of the capitalist system is to allocate our resources efficiently. Would welcome other members thoughts and experience.

                    Comment


                      #11
                      What statistical evidence - ie not heresay - can you point to regarding courts slowing down rental repossessions, and is there any difference between s21 & s8 actions??

                      I'm sure your remarks about EU migrants ( I don't recognise what you state BTW..) are not meant in any racist way.

                      Cheers & welcome!
                      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


                        #12
                        Originally posted by theartfullodger View Post
                        What statistical evidence - ie not heresay - can you point to regarding courts slowing down rental repossessions,
                        Not statistical, but my local court now has 1 baliff where there used to be 3, and a 6 week wait when it used to be 2. The court office now shuts 2 hours earlier every day.

                        It's not because of any deliberate policy to slow down possessions, It's just an effect of the cutbacks in government spending.

                        Comment


                          #13
                          Originally posted by theartfullodger View Post
                          I'm sure your remarks about EU migrants ( I don't recognise what you state BTW..) are not meant in any racist way.
                          I read it as some Ts noticing the opportunity to profit where movement rights have gone ahead of enforcement possibility.

                          It's the same issue as that French film bloke (Depardieu?) who has exploited his freedom of movement to hop over the border into Belgium and tell Monsieur Hollande to cry into his cognac.

                          Because there's no EU competence to define tax systems for the entire continent the French government are hamstrung.

                          ML
                          Refer Mad Regulators to Arkell vs Pressdram.

                          Comment


                            #14
                            It's always rather hypocritical when landlords complain about immigrants since they overwhelmingly rent. Objectively, landlords should cheer when immigration goes up.

                            Sure, when someone leaves a country it offers the opportunity to skip debt, and a few do that.
                            Wasn't Winston Churchill who left India leaving a big tab behind? Or a few British expats in a rush when all crashed?

                            Originally posted by midlandslandlord View Post
                            I read it as some Ts noticing the opportunity to profit where movement rights have gone ahead of enforcement possibility.
                            ...
                            Because there's no EU competence to define tax systems for the entire continent the French government are hamstrung.
                            Ironically, our government would probably be the first to be against either of these.

                            Comment


                              #15
                              I have only done two evictions, both in the same CC, one in 1999 with a bailiff wait of 2 weeks and one this year when the bailiff wait time quoted was about 10 weeks. I was told this was due to court mergers and cutbacks and a high workload. It seems that LLs need to factor evictions now taking an extra 2 months into the business plan.

                              On the plus side the population increase, particularly in the SE of England, without building enough housing to compensate has meant properties can be let much quicker, rents have risen considerably and LLs can choose from many potential tenants.

                              Comment

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