Tenant's overpaid rent but refuses to leave

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    Tenant's overpaid rent but refuses to leave

    I have already posted my scenario/dilema on here a couple of weeks ago. But in a nut-shell: problem tenant who owed me 5 months rent, housing benefit was claimed and this was back dated to the date they moved in to the property. Thus, not only am i now paid upto date, but i have 7 months housing benefit to retun to the tenant. I am also now getting the monthly rent paid direct to me via the HB.

    After the replies from members of this forum i have now decided that i want this tenant to move out. The tenant knows about this overpayment and understandably wants it back. I have told him i want him to move out and we agreed that i would give him half the rebate (about £1350) this weekend and the other half when he moved out. When i went round to give him the first payment he said he had sought legal advice and wasn't going to accept any money. He is saying this is his money and i have no right to withhold payment to him. I can't understand 'where he is coming from' on this and why he suddenly got a solicitor involved (if he has). It seems to me that we are now both in a worse situation than before. He, because he has none of the rebate at present and me because it looks like i will have to get a section 21 notice to evict him.

    Any suggestions on the way forward from here? Is talking to him the best option to make him 'see sense' or is it straight to a solicitor to get a section 21 issued?

    Am I entitled to withold this money as an 'extra bond'? Will the fact that i am holding this money have any effect on my ability to evict him?

    For information: The tenancy agreement expired 6 months ago and has not been renewed. I am not worried about the HB being reclaimed from me by the borough council (in case it is a fraudulent claim) as i have already spoke to the Housing Benefit Officer and they have assured me they won't.

    Sorry, one last point. Only one person signed the original tenancy agreement, but since then he has moved his mum and dad in (both pensioners) and sister. Will this have any effect on having them evicted?

    You should issue the section 21 immediately.You can do this yourself the wordings are readily available.The extra 'tenants' make no difference they will be treated as guests of the tenant and will be evicted at the same time.I don't understand the overpayment bit.Have you been paid by both the council and the tenant for the same period or simply overpaid by the council?


      Thanks Andy.

      Yes, I was paid by the tenant from June 04 to Dec 04. He then stopped paying me. He applied for HB and this was back dated to June 04.

      Am i right in thinking that this is now a 'periodic tenancy' and thus effects the section 21 notice i issue?

      In yours/anybody elses opinion is it better to get a solicitor to do this for you or is it relatively easy for a novice like myself to do.

      I don't think i can but could i deduct any expense of evicting the tenant from the monies i hold?


        The tenancy is periodic so correct notice is section 21 4a.If you research this site you will get enough information to serve the notice yourself (including a copy of notice required).It is really up to you if you would rather use a solicitor.You shouldn't deduct your costs from the money you hold which belongs to the tenant (although I would be tempted to hang on to it whilst the tenant is still in your property).Good luck.


          Thanks again Andy



            Some thoughts.

            1) why are you keeping this money when it is not yours ? It should be returned imedietly.
            2) I think most councils will not pay HB for a period where the tenant has alreayd paid, this is beceause they would deem that if the tenant could find the money that they should. thus it is very likely that the tenant is commiting fraud. Also in order to get full HB you have to be on a very very low income and it would be unlikely that the tenant would be entitled if they could afford to pay it themselves.




              Sorry for replying again, but after reading your post it ius absolutely clear to me that you should not be holding on to your tenants money. I should return it now or risk him taking you to court.



                Zoe - I have complained about unhelpful advice on a separate thread.Your last two posts definitely qualify.There is no reason to suppose the HB paid is not due and the extra money will come in handy when the tenant pleads poverty over paying the legal costs incurred in evicting him.This money might have to be relinquished if the tenant makes a lot of fuss but what is the point of voluntarily returning it 'immediately'!?


                  Zoe, I appreciate your reply (as i do all people who take the time to offer their help and opinions).

                  I agree that this is not my money and i have no intention of keeping it 'long term'. However, as things stand at present it gives me a bit of security. For a long time he had me in a position where he 'held all the cards'(I'm sure alot of landlords have experienced this and know exactly what I am talking about and how I feel).

                  I have already offered to give him half the money and the other half when he moves out. Why is this not acceptable to him? I can only assume he is wanting to be evicted so he can get a council house. If I am to give him back this money i am relinquishing the only bargaining tool I have.

                  If he wants to take me to court for this money then he can,(i don't know where i stand legally on this but i don't care). Its now costing me time and money to get him evicted, this is on top of all the stress and worry he caused initially by not paying for 5 months (Jan to May). My wife gave birth to our daughter in March and this was a cause of great worry for us both, at a time where financially we couldn't afford to be paying two mortgages.

                  Sorry, got a bit carried away there.

                  Please let me make this clear, i am not trying to 'rip this guy off'. He will get his money, but i have to protect myself financially.



                    I say that the money is not due as I KNOW that if the tenant has paid the rent in advance that the council will not pay it. If you think this warning is unhelpull then so be it.

                    Also I feel very strongly that the money should be returned to the tenant ASAP. You are not his bank manager and do not have to allocate him his money when you feel like it. he does not have to accept half now and half later he should have it now, which is what his solicitor has probably told him.

                    The warning about the money being not due to him, is just that a warning, if the council decide that they want the money back they may well claim it from you.

                    good luck, and congrats to you on teh baby front. I have my 14 week baby, on my lap feeding as we speak !!!



                      Andy Parker

                      My post were not unhelpfull. the money should be returned as otherwise the LL is acting outside the law. Also, like I say if the tenant had enough money to pay the rent up front then I suspect fraud, in either case if the HB know he has this money they will want it back as they will only help tenants pay rent they cannot afford.



                        Congrats to u 2 Zoe

                        I have taken on board what you have said, but that doesn't mean too say i agree with what you are saying or that i am going to act accordingly. But again i thank you for your response, this is a forum after all and everybody is entitled to their say.

                        If it starts getting too troublesome, he can have the money back, but i will continue to keep hold of it for as long as possible whilst the eviction proceedure runs its course.

                        Rightly or wrongly this is what i am going to do. I think most people in my position would do the same.

                        Regards Snowbed


                          Keep fighting - Don't despair

                          I suppose I can have my say now for what it is worth.

                          Thinking about it logically, if there is any overpayment, and there does not appear to be any doubt about it, the overpayment has resulted from the payment of HB to you for the same period for which the tenant had already paid rent to you.

                          Therefore, if any money is to be returned, it needs to be returned to the HB people and definitely not to the tenant. If you refund any money to the tenant, you will risk a double whammy because the HB people may come back to you later and ask for refund of the overpayment from you. If this happens, you will have no legs to stand on because you cannot argue that you were not aware that HB was paid to you for the period for which there was no rent outstanding.


                          If the tenant makes too much noise, tell him that the money will be returned to the HB office and you will also fully acquaint them as well as the local housing officer of ALL the facts. Make him understand that it would be best for him to leave voluntarily and quitely unless he wants to make life difficult for himself.

                          Properly advised, I would say that you should refund the money to HB office. However, you may be tempted to hang on to it as your insurance for the time when the HB Office come knocking on your door.

                          Private advice is available for a fee by sending a private message.


                            Thanks Ramnik. Although yet again i find myself confused

                            The housing benefit know that the cheque they issued(for 12 months) included a 7 month period where the tenant had already paid me. The lady at the benefits office actually told me via a telephone conversation that I should take out any arrears owed to me and pay the rest back to the tenant. People on this forum now seem to be saying that this is not the standard proceedure for housing benefit! Previous to receiving the HB cheque, I had to write to the benefits office detailing how much the tenant was in arrears, when he moved in and on what date each month the rent is due. Again the housing benefit office contacted me via telephone and requested this information, saying that they could not process the tenants claim until they had this info.

                            Although I am satisfied the HB officer will not request any payment from me for either a mistaken overpayment and/or fraudulent claim;I would feel much better holding onto the money rather than giving it to the tenant just in case they do want any of the HB back.

                            Like I have said previously, the reason I am so confident that they will not request any monies from me (even though it was paid direct to me) is that I have spoke in person to the Housing Benefits officer who said they wouldn't. They said they would only do this if they had reason to believe that the landlord knew it was a fraudulent claim and was with holding this information from them. At this point I expressed my concern that it could be fraudulent as I knew that 4 people were living in the property, one of which was working for the whole duration of the 12 months. She was very interested in this and also the fact that the name the claim was made under was not the person who had signed the original tenancy agreement(the son), but instead the father(pensioner).

                            They said they would look into the validity of the claim and write to me to let me know that the benefit had been cancelled (if it was found to be fraudulent). At present i have neither heard anything or recieved the first monthly housing benefit cheque (not due until last day of month) and as such I am in 'limbo' at the moment. In my situation, would you (sorry this is aimed at you Zoe) hand over to the tenant the overpayment knowing that either

                            a.) the claim is fraudulent and so the HB will want it back(although it isn't my problem as they would go after the tenant).

                            b.) A fraudulent claim will result in me getting no future rent (3/4 months?) whilst I evict them.

                            If it does turn out to be fraudulent then I can use the balance I am holding to cover any future rent payments until eviction.

                            Sorry if this is a little long winded


                              One more thing:

                              I'm going to see a solicitor tomorrow, so i'll let you know what he says.


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