New landlord has returned court docs; tenants damaged new flat and left owing rent

[Amica]

I am assisting my partner in his first attempt to claim possession. He owns the flat and is the landlord on the lease. When he and the tenants signed the lease, the guarantor (the mother of one of the tenants) was present and signed the lease at the same time. I witnessed the signatures.

My partner served section 8 notice in August. He served the notice in person to both the tenants and the guarantor, which I witnessed.

The form for the section 8 notice asks in paragraph 1 for the names of the tenants. Only the tenants were named, not the guarantor.

Now, in filling out Forms N5 and N119, it seems the guarantor should be included with the tenants as a defendant. Although the guarantor is not named in paragraph 1 of the section 8 notice, she is named and specified as guarantor in the part of the notice explaining reliance on ground 17. She pursued and arranged the tenancy and knowingly made false statements to induce my partner to grant it.

Is it OK to include the guarantor as a defendant on Forms N5 and N119 when she was not named in paragraph 1 of the section 8 notice?

This is my first post. Any response will be much appreciated.

[Snorkerz]

This depends on the purpose the guarantor signed the tenancy agreement as - were they 'tenant' (even though they didn't live there) or 'guarantor'.

If the former, they should be named on the section 8 notice and on the court application.
If the latter - they shouldn't. The possession hearing will confirm the tenants liability but you will need a separate claim to investigate whether the guarantor is actually liable for the tenants debt.

Did the guarantor have a chance to reed the document beforehand (how long?) and was the document executed as a deed?

[Amica]

Many thanks for your response. It is very helpful.

The guarantor signed the tenancy agreement as a 'guarantor', not as a 'tenant'.

Yes, she had around one week to read the agreement in advance of signing it.

We did not know a guarantor might sign as a 'tenant' even though they will not be living in the property. For the future, would you advise having guarantors sign as tenants? I expect it will always depend on the agreement, but I wonder if there are particular circumstances in which you would reject prospective tenants if their guarantor declines to sign as a tenant.

In this case, it seems that having the guarantor sign as a tenant would probably not have made much difference.

The agreement simply states: 'Signed by the Guarantor:' and 'In the presence of:'. Would you advise tenancy agreements routinely to state 'Executed as a deed:'? If so, can you do this for both tenants and guarantors? Would you?

Otherwise in this case the agreement's provisions relating to the guarantee seem watertight. There is extensive language defining and confirming the guarantor's responsibility, including a 'continuing responsibility' to 'perform and observe' obligations which the tenants fail to fulfil, and provision that 'The liability of the Guarantor hereunder shall be a primary obligation and debt of the Guarantor and not merely liability as a guarantor...', etc. Given the guarantor's leading role in pursuing and arranging the tenancy, it seemed appropriate that she should be included in the possession claim as a defendant.

I will, however, do as you have advised.

[Snorkerz]

If the guarantors liability was not executed as a deed then your chance of enforcing the guarantee is greatly weakened. If it isn't a deed, it is a contract. A contract needs some benefit (consideration) to pass both ways - the guarantor got nothing out of this. Also, you can not have a contract that is un-endable. Your guarantor could, theoretically, tell you tomorrow that he no longer wants to be a guarantor.

The guarantor has no tenancy rights - why would you seek possession from him?

[Amica]

Thank you.

In this case the guarantor is deriving significant benefit from the contract. The tenants - one of which is her adult son - and their baby were living in her home. She claimed among other things that they were out of the country, staying with the other set of parents, while she pursued the tenancy. Given a few months experience, it is abundantly clear why she wanted them out of her home.

I thought it might be possible to include the guarantor in the section 8 claim because, in using section 8, the landlord is able to include a claim for unpaid rent, in addition to claiming possession.

[Snorkerz]

I understand your thinking, but section 8 is primarily a 'possession claim' and you are not seeking possession from the guarantor.

I am not convinced that there has been 'consideration' as (a) she could have kicked them out whether you had granted the tenancy or not and (b) the real 'benefit' was to the tenant and once they are an adult, they are legally separate from the parent.

However - I hope I'm wrong and you win your claim - it is really up to the judges interpretation of the documents and the arguments put forward by both sides.

[Amica]

Your responses have been helpful. Thank you again.

[Amica]

Possession proceedings issued, tenants moving out today without notice

In the past week a county court issued my partner's claim for possession (based on Section 8 notice) and set the date for the hearing, and we have just been informed by a neighbour that the tenants are moving out today. More than two months rent is unpaid. They have given no notice. We do not know what they intend to do with the keys. The six month term of the AST has not yet expired.

My partner is working today, and it is a 100 mile round trip journey to the flat, so there is little chance of going to the flat immediately to try to speak to the tenants while they are moving out. My partner is reluctant to confront them in any event given that one of them was physically violent on one occasion and, since that incident, the violent tenant refused to speak to my partner when he made the attempt in a communal part of the building. The tenant turned his back and hurried away, refusing to talk.

We may be able to drive out to the flat this evening.

This is the first time we have gone through the process of eviction. What immediate measures should we take given the apparent departure of the tenants? Do we just recover possession of the vacant flat, have it repaired and redecorated (it will need it), let it to new tenants and wait for the hearing?

Any advice will be much appreciated. (Advice received on this forum in issuing proceedings was very helpful.)

[Snorkerz]

Unless your tenants actually surrender the tenancy to you then the tenancy (and their liability) continues.

If they do surrender, something in writing would help in case things turn dodgy further down the line.

You can continue your section 8 claim even if the tenant surrenders, for the rent and the court fees you have already paid.

[Amica]

Thank you, Snorkerz.

We're not sure how to get the tenants formally to surrender. As of today, we won't know where they are. The email address they gave my partner at the outset does not work. They have been communicating by phone and text message only. Should we text them today? Apologies for asking a silly question, but I've read on this forum about the difficulties of using text messages as evidence, and since my partner has not yet mastered the conversion of his text messages into properly dated evidence, I'm reluctant to rely on an exchange of text messages.

We can write to the tenants' guarantor informing her that the tenancy and their liability continue until the tenants surrender the tenancy in writing, but we have little reason to expect the guarantor to cooperate.

In these circumstances what is a judge likely to expect us to do? My partner thinks the tenants will now just vanish and ignore the court proceedings.

[thesaint]

I would carry on with the court proceedings, and not tell them that you think the tenants have left.
The tenants can not give a valid notice anyway.

[Amica]

Good idea, thesaint. Thank you.

There is no doubt we will continue with the court proceedings fully to realise the protection of the law against tenants who hold in contempt a fair and reasonable landlord, and the lease they signed, while mistreating and damaging the spacious, pleasant and well maintained, not to say delightful, flat let to them.

After I witnessed one of the tenants assaulting my partner, and both tenants using extremely foul and abusive language, it took me only one week to research the law (with the help of this forum and website) and write a Section 8 notice relying on Grounds 10, 11, 12, 13, 14 and 17. I worked hard to use the correct procedure and form, the correct grounds and the correct timing and manner of service, hesitating only when the tenants claimed via a text message after receiving the notice that they did not want to go to court and would leave the flat by the end of August. I let them slow me down in figuring out how to get court proceedings issued. Next time - if we ever misjudge prospective tenants on this level again - I won't hesitate.

I take your point that the tenants cannot give a valid notice anyway. The term of the lease has not yet expired. I hadn't fully considered this.

[thesaint]

When you go to court, ensure that you take an up to date rent statement.
1 week before the court date, post a copy to the tenant(at the address)from a Post Office, and get a certificate of posting, and also submit one to the court.

You have not taken the tenant to court with any mandatory grounds, so whilst you can't be guaranteed that the judge takes the amount of rent being at least two months into account.
The defendants "no show" should persuade him to grant possession.

[Snorkerz]

The term of the lease has not yet expired. I hadn't fully considered this.

Does the tenancy agreement allow you to use the grounds you have cited? If not, the judge can not grant possession before the end of the fixed term. See section 7.

[Amica]

Thank you, Snorkerz, for the reference to section 7.

Yes, the tenancy agreement allows us to use the grounds I cited. The agreement provides that '...if any of the circumstances mentioned in Grounds 2 and 8 of Part I of Schedule II or Grounds 10-15 of Part II of Schedule II to the Housing Act 1988 arise, then the landlord may re-enter the Premises and end the tenancy.' I pointed this out in the particulars of claim, stating that circumstances mentioned in grounds 8, 10, 11, 12, 13 and 14 have arisen.

In completing the claim form and particulars, I considered requesting leave for the court to add ground 8 to the Section 8 notice. I decided this was inappropriate because at the time of service of the notice only one month's rent was unpaid. By the time the claim form was filed, two months' rent were unpaid, so I pointed out in the particulars that circumstances mentioned in ground 8 had arisen.

Thank you, thesaint, for your detailed advice on updating the rent statement. I will do so.

I very much appreciate all the advice provided.