rent owed, tenant will not move out, wants legal action taken

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    #16
    I did.
    When a tenant pays the landlord any rent, they're always paying any arrears off first, so the debt is always moving forward - which makes claiming it quite difficult until the tenancy has ended.

    If the tenant owes more than two month's rent, a s8 notice is more likely to either result in an eviction or (possibly) in getting the tenant to pay the arrears to below the two month limit.
    That will also impact the tenant's ability to get support from the council (it shows they're deliberately making themselves homeless - which will impact on emergency housing, it probably won't affect their eligibility for council housing either way - something most tenants don't understand).
    So they're much less likely to like that process.

    A common problem with s8 notices is that they can be defended, but that's more difficult for a tenant when they have recently signed a new tenancy agreement.
    When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
    Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

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      #17
      Actually I think - it depends.

      The debtor has to STATE to what what payments they make are allocated. If they do not, the creditor can decide.

      The debtor might NOT wish to allocate payments to older amounts (firstly because there might be time limitatiuon issues, and secondly because their failure to pay in a previous month month might be due to a specific dispute about that payment -- e.g. I refuse to pay because landlord did XYZ in that month).

      I would nevertheless progress MCOL - you really don't know if you are going to receive a penny more.

      This from a business law book (Marsh 2002)

      Clipboard-20170630.jpg

      Comment


        #18
        Originally posted by jpkeates View Post
        I did.
        When a tenant pays the landlord any rent, they're always paying any arrears off first, so the debt is always moving forward - which makes claiming it quite difficult until the tenancy has ended.
        That's not the case.

        If a tenant pays the normal rent amount on the normal due day without further comment then the landlord is entitled to consider that this is payment for that month's rent, not any arrear.

        Also, in general if a payment is made without any mention of what it is for then the creditor is free to assign the payment as he pleases, barring previous contractual agreement.

        Basically, if a tenant skips a rent payment or underpay a month then you are entitled to consider that the debt relates to that specific month.

        Comment


          #19
          I had a claim for a debt thrown out on that specific issue.
          The debt I was claiming for had been settled by subsequent payments (which were regular rent payments which resumed after a gap of several months).

          It was a small claim, so it might just have been a "judge moment", but it stuck with me.
          When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
          Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

          Comment


            #20
            The judge was wrong. That's not how it works.

            On the other hand, doing it like that means that the debt is always 'fresh' and thus you always have a further 6 years to recover it. So it might be to your advantage as well.

            Comment


              #21
              Unless I'm missing something your arrears are more than 2 months.

              They don't start just from the new AST but carry forward from the older periodic tenancy.

              When the original AST expired the tenant became periodic. Basically with the same contract as the original AST but with notice periods.

              You state the agent ran off with the original deposit?. This will cause you problems as the agent was working for you and it still belongs to the tenant and you are responsible for protecting it and returning it.

              It will likely be statute barred now although the RLA argue that it is not.

              I think you need professional legal advice to help you sort out this mess.

              The first thing you need to do though is create a record of payments made and missed. Get copies of your bank statements and go through them all documenting everything. You will need this in court.

              Comment


                #22
                Originally posted by Wright76 View Post

                The first thing you need to do though is create a record of payments made and missed. Get copies of your bank statements and go through them all documenting everything. You will need this in court.
                Surely rent payments are irrelevant for a s21 eviction?

                Comment


                  #23
                  Maybe for the eviction but not for the money claim for rent arrears

                  Comment


                    #24
                    something else has just occurred to me. what if the tenant says that i've not given him the EPC certificate and how to rentbook documents even though they were handed to him?

                    Comment


                      #25
                      on the assumption that you have no signed evidence you could write to them and ask if they still have the EPC and booklet you gave them so that it can be handed to the new tenant when they leave? you might get a response that's helpful to prove they have it?? I include a statement/clause in my TA's which states that they have received them, its signed on every page by the tenant. I don't know how that would hold up but from what I understand the penalties are not that harsh to be overly concerned (currently ....)

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                        #26
                        It's not the penalty that's an issue, lack of the Prescribed Documents invalidate a section 21 for a tenancy that began after October 1 2015.
                        Send the documents to the tenant before serving notice if you can.
                        When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                        Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                        Comment


                          #27
                          can i use the following and ask tenant to sign. If he wants to be get evicted, surely it works in his favour by signing it?

                          tenant.jpg

                          Comment


                            #28
                            The tenant wants to be evicted using s21, so they should probably do whatever they can to help you use that instead of s8.
                            When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                            Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                            Comment


                              #29
                              Explain you will only serve s21 if there are no arrears
                              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


                                #30
                                surprise surprise, he has refused to sign it...I can't understand why though.

                                I've sent 2 notices from 2 different post offices with proof of postage.

                                I may be in for the long haul on this....let's see.

                                i'm going to proceed with the sectoin 21 then move onto the next step of taking him to court.

                                in your experience, what's the shortest and long time it takes to evict tenant?

                                Comment

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