Possession order for abandonment

[KTC]

She does know that being evicted for rental arrears can without good excuses be taken by the council as making herself intentionally homeless?

If the council have stopped her HA payments because they consider her as no longer living at the property (i.e. living with her partner all the time), then whether she's evicted or not from it will surely have no bearing on whether she's homeless or not.

[scot55]

If the tenancy deposit penalty claim goes in front of court while the tenancy is ongoing, the only options the judge have is to order that it be either a) repaid to the tenant, or b) be paid into a protection scheme. If the tenancy have ended, then the court can but does not have to order the repayment of all or part of the deposit.

So if this goes to court during the section 8 proceedings, I don't see how you will win. Having said that, I have no idea how a court will treat a deposit whose deductions have been agreed and made before the the hearing.

I'm new to this so don't rip my head off, but if she is using the property for illegal gains (fraudulent housing benefits) wouldn't the court automatically issue the section 8?

And since she never actually paid the deposit, should the landlord be held responsible for protecting it?
I don't see how he can protect it if she never paid it.
He may have been legally obligated to pay it, but I would argue that the deposit was waivered due to her fianical issues.

I'm asking this to better my own knowledge, I am unfortunately not experienced enough to offer advice on the op's question...

[KTC]

Hold on, if you have enough evidence to convince a court that she is no longer occupying the place as her only or principal home, then she's no longer under an AST but a common law one.

Common law Notice to Quit (at least 4 weeks, ending on the last or first day of a full period of tenancy, with the necessary NTQ prescribed information), and then court possession on that basis. What do others think?

[KTC]

The two has no bearing on each other.

Section 8 notice for repossession under the Housing Act 1988 requires the stated grounds under that section to be proved for a possession order to be given. Grounds 8, 10, and 11 which are immediately relevant here are all related to (the lack of) payment in rent. There is also ground 14 if she has been convicted by a court for using the property for immoral or illegal purposes. Convicted there being the operative word, and it's only a discretionary ground.

[jpkeates]

It doesn't matter how the deposit was paid, there was clearly a deposit (it's in the tenancy agreement and you've discussed paying rent arrears from it).
The deposit regulations specifiy how "money" "received" in connection with a tenancy deposit must be handled and this hasn't been done.

In theory, section 8 notices are not invalidated or affected by a breach of the deposit regulations.
In practice, judges are a law unto themselves, and might, for example, award a penalty to the tenant and allow that to be used to offset rent arrears.

[Moderator2]

Two related threads have been merged.

[Wright76]

Thanks for all the advice everyone it seems it's a total minefield with no clear definition of what should be done.

The new guidelines haven't yet came into force in that link that was posted would help greatly and the sooner the better for me.

Personally I am inclined to call her bluff and put the evidence of her fraud to her, I'm inclined to change the locks under implied surrender and let her take us to court to prove otherwise.

We have valid proof the property isn't occupied and she would have some front to lie in front of a judge.

However, my partner is so very straight and is insisting everything is done to the letter of the law.

I guess I can only hope she realises this is gettin her nowhere and drops the charade.

Failing that we will have to take our chances on the judge not offsetting her arrears against a fine, even if he does that's fine as we won't see that money again regardless, we just have to hope he awards possession on one of the other discretionary grounds.

You would think the courts could see right through these people but it seems like landlords are always in the wrong?

She has no means to pay future rent how can they expect her to stay for free?!

[Wright76]

Oh this gets better!. Rang benefit fraud and she has been claiming for both herself and the child that were removed from her care. So both her ex partner and herself have been being paid for the same child!.

Although housing benefit was suspended they didn't tell DWP and so she has been receiving full benefit.

No wonder she doesn't want to lose the address!. They have suspended every benefit today and so hopefully she will now face the consequences

[section21]

Just to be clear, did the tenancy agreement state that a deposit would be paid and protected in a scheme. What is the exact wording around that?

[Wright76]

I would have to wait for our tenancy agreement to be returned from the solicitor to give you the exact wording but it says a deposit WILL be paid and there was no mention of a scheme X

[Wright76]

The 18th is fast approaching and tenant has now blocked our texts which are being returned undelivered.

She still isn't living at the property and housing benefit has been closed.

Benefit fraud rang her today and her partner answered! Unsure when her DWP payments will stop but assuming they are dealing with it.

Council tax benefit has also ceased.

How many landlords would be brave enough to assume surrender of the property?

I know the only certain way is to apply for possession order. Any current experience of current time frames in North east?

[Wright76]

Possession order for abandonment

Ongoing saga with fraudulent tenant.

We were unable to issue section 21 due to unsecured deposit so issued a section 8 (over 4 months rent arrears). It gives notice until today.

Tenant not living at property and confirmed with neighbours as well as no gas/electric since April and August.

Housing benefit and council tax closed due to no contact and answering their questions.

Notice given of inspection today and asking tenant to contact us if she is in dispute and still claims to live there.

Advice taken from council housing dept who advise we can legally go in today. We suspect property is totally empty but couldn't confirm as upstairs flat.

Tenant has not made contact since denying receiving section 8 and was given a copy of her signature signing for it!. She has since blocked all calls and texts from us and DWP have now suspended her own benefit.

I'm aware we could take a risk and assume implied surrender and change the locks but I don't trust her as far as I can throw her and wouldn't like to spend 6 months wondering what stunt she might pull.

We will therefore be applying for a possession order tomorrow.

My question is how do we state abandonment as part of the request from section 8?. We did cite breaking the tenancy agreement as well as rent arrears and a constant failure to pay on time on the section 8.

Once we are given a possession order can we then change the locks or will we still have to employ bailiffs as she is constantly ignoring us.

I will know later today if she has left anything in the flat but my guess is there will be a bed at most.

Can the judge order immediate possession or will we have to wait until a certain date?

All new to this and landlords with only one property so I apologise if I sound ignorant

[jpkeates]

If the council say you can reposess, and they confirm that in writing, I'd take the risk and repossess.
It's the council housing department who would have to take action for any illegal eviction and they're unlikely to do that if they said it was OK to take possession.
The tenant can take legal action of their own (but not a prosecution) which is costly for them to do.

If you proceed with repossession through the courts (which you can do in parallel if you want) you are actioning the s8 you have served, so you don't really want to change it now.
You'll have to pay the court fee and be given a hearing date that is likely to be a few weeks away, the hearing will happen (at which point you can tell the judge the tenant's left the property) and hopefully they'll agree a possession order.
Normally that's dated 14 days after the hearing, but it often takes longer than that to actually produce, at which point you can instruct bailiffs who have their own lead time.

The latter process is the proper legal route, but, as you can see it takes a long time.
And if there's anything wrong with the s8 it can loop round for a while - or if the tenant offers a defence to asks for a delay.

[Wright76]

Thank you for prompt reply.

I did read that it would be the same department she complained to about illegal eviction and they have everything we have done documented Over the last month. It was even this department that reported her fraud to the benefits departments so I feel she will have little support.

There is no way she can or will fund a private case but my worry was that she will ask shelter to help and they seem to be quite ruthless!

The homeless dept have washed their hands of her. It was her initial wish to be served with eviction in order to gain a council address but as they now know of both her rent arrears and fraud she doesn't have much help down that route.

She isn't even actually homeless but living with her boyfriend. Unbelievable.

When this began we initially expected her to defend the section 8 rent arrears against her non deposit and penalty and expected to have this dealt with by the court. We hoped we would still gain possession on the many discretionary grounds but worst case once the penalty had been imposed we could have then started again with a section 21

I don't think for one minute she will turn up in court now and offer any defence. If I had my way she would be thrown in jail for her blatent benefit fraud but that's a different thread again!.

So on the day of the hearing we will have the opportunity to explain the abandonment to the judge? That sounds good. And do we really need bailiffs after that if the property is empty?

I really wish we were brave enough to change the locks and move on but she is a drug addict and until two weeks ago she was still lying about living there. I really wouldn't trust her not to wait until we refurbish and have new tenants before claiming illegal eviction.

I dread to see the state of the property. With no heating or hot water since April it's likely to be stinking and no electricity since August I would heavily doubt she emptied the fridge or the freezer.

[Wright76]

Sorry just another thought, could be change the locks and notify her to contact us If she needs to be in whilst also applying for a possession order?

I don't want to do anything that will jeopardise the full eviction if she does offer some form of defence but at the same time we need to make sure the flat is secure.