Non-payment of rent question

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    Non-payment of rent question

    Hello - I have a tenant on AST who paid a deposit and first months rent on occupation on 1 Dec 2012 and who has only paid £180 since (monthly rent £725).

    I have 2 questions:

    1. If I serve a S8, the tenant has to be at least 2 months in arrears. If I just include the months of January and February, this would not count, as she has paid £180. However, can I include 1 March now in this equation, as her lease states rental to be paid on 1 March in advance (although she has not been in occupation yet all through March)? Or is it still too early to serve a S8?

    2. If I speak to her and ask her to vacate within a week, say, stating that I would not be seeking legal possession against her resulting in a CCJ, would the Court frown on this, if it didn't work and I have to apply for S8?

    Many thanks in advance
    Sandy

    #2
    1) it needs to be 2 months owing - so as soon as a rent day passes, the full months becomes due. Does your tenancy agreement say you can use section 8 and specifically grounds 8, 10 & 11?

    2) If the tenant is willing to voluntarily surrender the tenancy, that is fine. I suggest you get a deed of surrender. Anything that avoids overburdening the court system is good - indeed it is part of the opening 'CPR' rules.

    Comment


      #3
      Originally posted by SANDYT View Post
      1. If I serve a S8, the tenant has to be at least 2 months in arrears. If I just include the months of January and February, this would not count, as she has paid £180. However, can I include 1 March now in this equation, as her lease states rental to be paid on 1 March in advance (although she has not been in occupation yet all through March)? Or is it still too early to serve a S8?
      You can serve a Sec 8 using grounds 8, 10 & 11 Tomorrow(2nd March).
      The requirement for Ground 8 will then be satisfied, as the tenant would have at least £1450.00 in unpaid rent past due.

      I hope your tenancy agreement states that you can use it within the fixed term.

      Originally posted by SANDYT View Post
      2. If I speak to her and ask her to vacate within a week, say, stating that I would not be seeking legal possession against her resulting in a CCJ, would the Court frown on this, if it didn't work and I have to apply for S8?
      The court wouldn't frown on it, but there would be no point doing it in my opinion.
      Serve a Sec 8 as soon as you can, as it is the first step in months of action that you will have to take.
      You can halt the process at anytime.

      Why isn't she paying the rent?
      Allow tenants to protect their own deposits. I want free money when they do it wrong

      Comment


        #4
        Many thanks for the advice so far.

        The AST states " by obtaining a court order, the Landlord may re-enter the Property and immediately thereupon the tenancy shall absolutely determine without prejudice to the other rights and remedies of the Landlord if the Tenant has not complied with any obligation in this Agreement or should the Rent be in arrears by more than 14 days whether formally demanded or not"
        Is this clause sufficient for a S8 to be served?

        Comment


          #5
          Originally posted by SANDYT View Post
          Many thanks for the advice so far.

          The AST states " by obtaining a court order, the Landlord may re-enter the Property and immediately thereupon the tenancy shall absolutely determine without prejudice to the other rights and remedies of the Landlord if the Tenant has not complied with any obligation in this Agreement or should the Rent be in arrears by more than 14 days whether formally demanded or not"
          Is this clause sufficient for a S8 to be served?
          Statute says:
          The court shall not make an order for possession of a dwelling-house to take effect at a time when it is let on an assured fixed term tenancy unless
          (a)the ground for possession is Ground 2 or Ground 8 in Part I of Schedule 2 to this Act or any of the grounds in Part II of that Schedule, other than Ground 9 or Ground 16 (which it is) and

          (b)the terms of the tenancy make provision for it to be brought to an end on the ground in question (whether that provision takes the form of a provision for re-entry, for forfeiture, for determination by notice or otherwise).
          IMHO your tenancy agreement doesn't seem to comply with section (b)

          Comment


            #6
            OMG - help - so what do I do now? Surely the tenant can't stay in my house for another 10 months without paying rent?

            Comment


              #7
              Originally posted by Snorkerz View Post
              Statute says:

              IMHO your tenancy agreement doesn't seem to comply with section (b)
              Snorkerz - to me the LLs clause looks like a valid forfeiture clause - therefore satisfying s7(6)(b) Housing Act 1988. Are you saying that in your experience the agreement must explicitly refer to the grounds in the act?
              caveat emptor
              If it sounds like I know what I am talking about........I don't.

              Comment


                #8
                The tenancy agreement the landlord has supplied states that he must first obtain a court order to enter the premises, and then make a determination.
                The tenancy agreement also fails to say that the tenancy can be "brought to an end on the ground(Ground 8 in this case)in question)".

                I am quoting snorkerz words without checking the legislation again.
                I have no reason to believe he is misquoting. If so, in my opinion the tenancy agreement is deficient.

                I have asked the OP why the tenant is not paying the rent. This has not been answered.
                Allow tenants to protect their own deposits. I want free money when they do it wrong

                Comment


                  #9
                  s.7:
                  b)the terms of the tenancy make provision for it to be brought to an end on the ground in question (whether that provision takes the form of a provision for re-entry, for forfeiture, for determination by notice or otherwise).
                  I think Wight Knight's question was discussed at some point based on the highlighted text above.
                  I can't find a definitive answer, but:

                  Jeffrey posted recently on another forum (http://www.sheffieldforum.co.uk/arch...t-1118434.html):
                  It is a clause called a 'Proviso for Re-entry'. It has to be there as a basis for any s.8 possession ground even to be claimed BUT it cannot operate literally in most cases.
                  And (http://www.anuk.org.uk/Information/L...l_Chapter5.pdf):
                  If a landlord wishes to obtain possession of the property during the fixed term of an assured or assured shorthold tenancy, they can only seek possession if:
                  • one of the grounds for possession in Schedule 2 of the Housing Act 1988 (as amended) applies (see below); and
                  • the tenancy agreement has a clause in it providing for this (this is sometimes known as a re-entry or forfeiture clause, even though forfeiture cannot be used for assured/assured shorthold tenancies);

                  Comment


                    #10
                    thesaint - I usually follow snorkerz posts, just checking my understanding, also your question is of course exteremely important, I hope the OP answers it honestly.

                    On my reading of the OPs clause, she has a right of re-entry for non-payment of rent so meets the requirement of s7(6)(b). However if someone knows from experience that the Act has to be explicitly referred to I would like to know for my own reference, it seems odd to me that it would, but then there isn't a lot of consistency in most LL&T law as far as I can tell. Although it states a court order is required before termination, surely this is just stating the law as a court order for possession is required in all residential tenancies.

                    jjlandlord - thanks for those links, seems to help the OP, in that there is hope her clause stands - unless I'm missing something which often happens!
                    caveat emptor
                    If it sounds like I know what I am talking about........I don't.

                    Comment


                      #11
                      Reading the clause a few more times, I agree that the landlord can re-enter the property(only if the rent is 14 days late, or by court order) but, I still do not believe that the tenancy can be brought to an end depending what is found by what the landlord finds when he does re-enter).

                      If the landlord does not gain entry, what is his remedy?
                      If it was relating to repossession within the fixed term on Sec 8 grounds, why would it state "14 days"? 14 days has nothing to do with anything.
                      It's all a bit wooly to me, and does not meet the requirement.
                      Allow tenants to protect their own deposits. I want free money when they do it wrong

                      Comment


                        #12
                        Would be very interested if there is any case law of what must be in the tenancy agreement to be able to use S8 G8/10/11: Can't find any.....

                        Should we bear in mind HA 1988 S45(4)
                        http://www.legislation.gov.uk/ukpga/1988/50/section/45

                        (4) For the avoidance of doubt, it is hereby declared that any reference in this Part of this Act (however expressed) to a power for a landlord to determine a tenancy does not include a reference to a power of re-entry or forfeiture for breach of any term or condition of the tenancy.
                        (I love that phrase "For the avoidance of doubt....")

                        Cheers!
                        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
                          thesaint - Have a read through jjlandlords first link, it explains it better than me. Save to say that the act of re-entry ends the tenancy. The clause has to be there for the right to arise, as it does after 14 days, but it can only be actioned once the conditions in HA 1988 have also been met - namely 2 months arrears, 14 days notice and then a court order.
                          caveat emptor
                          If it sounds like I know what I am talking about........I don't.

                          Comment


                            #14
                            It is my opinion that the statutory reference to forfeiture clauses in section 7 does not say that a forfeiture etc clause removes the requirement for reference to the ground in question, just that such a reference can be made in the format "Don't pay and you forfeit under ground 8" or "don't pay and we may re-enter under ground 8".

                            However, I am open to contradiction on that! Westminster / Bhaal / White Knight / JJLandlord (and others with an interest in understanding statute) Comments Please!!!

                            I believe the clause in OPs AST is there in case the tenancy ceases to be an AST.

                            Comment


                              #15
                              Snorkerz,

                              Like the artfullodger I cannot find any case law that indicates whether reference to ground 8 is mandatory or not. I have done a search on lexis library and westlaw and come up with nothing, then again I don't have quite enough time to delve into the minutiae too much.

                              Here is an interesting article on the subject but not answering the question on our minds: http://www.newlawjournal.co.uk/nlj/content/fix-2.

                              From my admittedly brief research, I conclude that you can use the ground if it is listed in the agreement even if not explicitly by ground 8, none of the arrears cases bother to mention that it should be an explicit reference. Here the OP has a reference to arrears of rent, which is a mandatory ground, therefore she can bring an action.

                              Only one way to find out, and the OP only has a court fee and costs to lose (not much compared to 10 months rent!) so give a 14 day notice and get to court.
                              caveat emptor
                              If it sounds like I know what I am talking about........I don't.

                              Comment

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