Troublesome Tenant-Please help

[PlanB]

Re: Troublesome Tenant-Please help

is issue a section 8 over the next few days and court date would stand up with some substance.

I can't guarantee that because a DJ could say that your application for possession is invalid since (a) it didn't refer to Section 8 as grounds on the form (or did it?) and (b) the Tenant's deposit wasn't insured at the time you made the application even though it is by the time you get to the hearing.

You should leave the court hearing which has been listed in the diary as that will keep everybody focussed while you try to resolve the problem. You've already paid the £100 court costs of the application which you won't get back if you discontinue so keep going and hope for an anti-tenant judge on the day and hope the Tenant doesn't get legal representation. The best thing to happen would be for her not to turn up to the hearing so you get your possession order by default. A lot of Tenants simply move out on the day of the hearing or more likely when they get the date of the eviction from the court 14 days later.

She may be one of those Tenants who knows how to play the game. If she isn't then that lady at Housing Options is clearly teaching her how to.

[PlanB]

Re: Troublesome Tenant-Please help

Failing that I make peace and re-issue a AST and wait 6 months?

Have you had any contact with your Tenant since she moved in last July? It would be helpful to understand where the relationship has broken down so I can suggest how to repair it or how best to get rid of her. At the moment she's holding all the cards. If she can get her arrears below 8 weeks by the time she walks into the hearing on 17th April I doubt you'd get a possession order even if you get all the legal paperwork right now because you won't be legally entitled to possession.

Have you ever discussed the rent arrears with her and what reason does she give for not paying on time? HB is normally paid fortnightly in arrears which can mess with a Landlord's expected timetable (once a month on the 13th in your case). Is she having a laugh or is she suffering genuine problems in her life? She's been with you since July 2013 so is this the first time she's got into arrears? Something may have happened which you can try to work through with her.

Sadly you can't just issue her with an AST because she already has an assured tenancy agreement which you can't ever take away from her unless she breaches the terms of that contract. You'll have to somehow persuade her to surrender the one she's got first. She may be happy to do that and move off. If she wants to stay then you could offer her a six-month AST in return for some sort of inducement. She doesn't have to co-operate that's why I suggested making peace with her.

I'm afraid she's sitting pretty at the moment although you can get her out over rent arrears. So why not make contact over the weekend to start a conversation. Tell her you're going to serve her with a Section 8 Notice for the arrears next week because you have to protect your own position and you're not doing it to be nasty. Tell her because you haven't had her rent you can't afford to pay the mortgage and you may lose the property altogether. She may not have thought of that. It's surprising how many Tenants think that all Landlords are rich capitalist bastards who squander their rent money on luxuries when nothing could be further from the truth.

I don't know the woman so this may not work if she's pure evil. But a combination of good cop bad cop may work. Talk to her and also serve a Section 8 Notice.

[mpeverton1980]

Re: Troublesome Tenant-Please help

Hi Many thanks for your reply and work on this.

So my only choice really is issue a section 8 over the next few days and court date would stand up with some substance. Failing that I make peace and re-issue a AST and wait 6 months?

[PlanB]

Re: Troublesome Tenant-Please help

That's a lot of information to absorb so I'll not post any more today. But I do want to add a disclaimer in that I am not a lawyer. I'm a Landlord with many miles on the clock so I've learnt what and what not to do over the years. I want to give you as much information as possible so you can manage this situation but if your Tenant gets legal assistance to help her remain in the property then I suggest you do too.

If it was me I would move heaven and earth to make peace with your Tenant. Your aim should be to get her to surrender that Assured Tenancy agreement and move out voluntarily without the need for court action. She's already sought preliminary advice and it looks like the law is on her side.

One bargaining point could be to suggest that you would write off those arrears if she surrenders the tenancy agreement and you will then issue her with a new six month AST. You would then be free to get rid of her after six months using Section 21. But don't do anything until you've heard from the Council about HB payments coming direct to you. If you write off her rent arrears then the Council is no longer obliged to pay you her HB.

At the moment your Tenant is in rent arrears. That's pretty much the only way you'll ever get her out of your property. So don't be hasty by making any offers to write them off until things are become clearer on the legal side.

[PlanB]

Re: Troublesome Tenant-Please help

I noticed an anomaly in your tenancy agreement. It's dated 13th July 2013 yet it refers to "for the term of a minimum of six months commencing 2nd July 2011" .

What's that all about? Has she been living there since 2011 and you didn't get round to issuing the tenancy agreement for two years? Or is this an error which could make the tenancy agreement void

[PlanB]

Re: Troublesome Tenant-Please help

Your Tenant has applied to the Council to get re-housed because you intend to evict her. If she has rent arrears I doubt they will re-house her as this may be seen as *intentionally homeless* especially if she was getting HB which she didn't pass on to the Landlord. They will have told her this.

The Council also has the power to remedy her situation by paying you (as Landlord) her HB direct. It's in the Council interests to get the Tenant's rent paid and to keep those arrears under 8 weeks' worth so you can't take possession under Section 8. They won't want another person on the housing waiting list when they've probably got too many already. They will want you to keep her.

I see you've made a formal request to the Council (15th March) for the rent to be paid direct. Have you had a reply?

If an arrangement to clear the arrears is made then you will have less chance of succeeding with your possession claim particularly if the Defendant (your Tenant) asks the court for an adjournment while she gets her financial act together. If the DJ sees light at the end of the tunnel he may well adjourn. At worst he may make a suspended possession order which allows her to stay in the property unless she breaks the terms of that order.

[PlanB]

Re: Troublesome Tenant-Please help

I see the court has listed your possession hearing date for 17th April.

I haven't seen your application to the court but what "grounds" did you state for seeking possession? Was it s.21 or s.8 or both?

I need to double-check but if you issued the summons for possession using section 8 then the court can make an order two weeks later (if it agrees with your claim) but not before. This means you may still be able to use that hearing date if you serve a Section 8 Notice on your Tenant asap.

If you used Section 21 as your grounds then the court can't make an order within two months so that hearing cannot go ahead if you have to now serve a new Section 21 Notice. However since you're not entitled to use Section 21 as grounds for possession that's irrelevant, unless you used that as your grounds and then your application will fail because your Section 21 Notice is invalid so little point in attending a hearing.

You can download a reliable template of a Section 8 Notice for Assured Tenancy agreements in this link. It's form No 3:

https://www.gov.uk/assured-tenancy-forms

[PlanB]

Re: Troublesome Tenant-Please help

council seem to be hanging onto to this assured tenancy versus assured shorthold. do I need to worry about this?

. . . . . issued 21 to get possesion

I've seen your "Notice" and I'm afraid the lady in Housing Options is right when she says that it is invalid. You referred to it in your post as being a section 21 Notice but I've seen it and it's not. There's a prescribed format for a s.21 Notice which must state various legal jargon. Your "notice" is in effect simply a letter telling her to move out. Sadly you can't do that. She cannot be evicted until you first get a possession order from the court.

Since your Tenant has an Assured Tenancy you cannot use section 21 to remove her because that's only for ASTs. You will have to serve her with a new Notice under Section 8 for her rent arrears.

I'm afraid you're back to square one with the notice. Here's some information taken from a law firm's website to help you understand the process:


Termination of an assured tenancy


The Housing Act 1988 provides that a landlord can only terminate an assured tenancy by serving a notice under Section 8 of the Act. This notice is known commonly as a Section 8 Notice and/or a Notice Seeking Possession.
The notice has to be in a prescribed form and must set out the grounds for possession on which the landlord is relying. The grounds on which the landlord can rely are set out in Schedule 2 of the Act and the landlord can specify more than one.
Some of the grounds set out in Schedule 2 are mandatory grounds. This means that if, at the possession hearing, the judge is satisfied that the landlord has proven the mandatory ground specified in the Section 8 Notice, the judge must make an order for possession.
The remaining grounds are discretionary grounds. This means that if, at the possession hearing, the judge is satisfied that the landlord has proven the mandatory ground specified in the Section 8 Notice, the judge may make an order for possession if it considers it is reasonable to do so. In other words, the court can choose whether or not to make an order for possession and there is no guarantee that it will do so.

[PlanB]

Re: Troublesome Tenant-Please help

MP I've received your documents by email.

You've created this problem by issuing your Tenant with an Assured Tenancy Agreement not an Assured Shorthold Tenancy agreement. Do we blame Google for this error since it wouldn't have come from an agent?

What your Tenant now has is a tenancy for life and beyond. If she dies "succession" kicks in which means her husband/partner/child can inherit the tenancy. In effect you're stuck with her forever. The tenancy agreement states a minimum term of six months but no end date. It's not a fixed term contract.

Thank God she has rent arrears because that is one of the only reasons you can use to lawfully get her out. See those rent arrears as a blessing in disguise. Once she's paid them you cannot evict her ever. She could be entitled to live there for the next 50 years or more (unless she breaches the terms of her agreement).

I'm not wanting to alarm you, I simply want you to know the facts so you can make an informed decision on what you can and can't legally to do next (I'll get to tactics and strategy later).

Here is some in formation on the enhanced legal rights for tenants with Assured Tenancies. As I said before it's extremely rare to find these in the private rental sector, they are only used by councils and Housing Associations.

http://england.shelter.org.uk/get_advice/private_renting/private_renting_agreements/assured_tenancies

[CleverClogs (RIP)]

Re: Troublesome Tenant-Please help

Oh goody, are you offering to be my personal sub-editor?

No - you couldn't afford me.

How do you know I wasn't advising the OP to seek a receipt for the documents written in red ink

I don't.

Didn't you once work for the Manchester Grauniad?

[PlanB]

Re: Troublesome Tenant-Please help

"Red" or "Read"?

Oh goody, are you offering to be my personal sub-editor?

How do you know I wasn't advising the OP to seek a receipt for the documents written in red ink

[CleverClogs (RIP)]

Re: Troublesome Tenant-Please help

Tick the box requiring a "Red" receipt if you're sending it to the Tenants by email.

"Red" or "Read"?

[PlanB]

Re: Troublesome Tenant-Please help

Rent in arreas of three months approx. £1350.00 owed. . . . . I have contacted the local council and declared that i am not receiving any rent from tenant who is claiming benefits (DSS) . . . . Tenant has lied to council with regards to how many weeks that they are in arrears.

Once the Tenants are eight weeks or more in rent arrears the Local Authority must pay the HB to the Landlord direct. You say you live in Shropshire (is the let property in the same area?) and the Council admits this on their own website. The onus is on you to prove that you have not received the rent. But I would like to think the HB team will ask the Tenant for proof that they have.

http://shropshire.gov.uk/benefits/lo...d-information/

Now my next question is if you get the HB/rent paid direct by the council would you still want to evict them? Why not bank the money until things stabilize and then evict them when you're ready. If the Tenants have received HB and not passed it on to you (causing £1,350 arrears) then you may be able to claw that back through the Council who will claw it back from the Tenants. I can't promise that but I'll look into it for you.

How long have the Tenants been in the property and have they been a pain from the beginning or is it only the rent money that's the problem? Once that's sorted things may got better.

[PlanB]

Re: Troublesome Tenant-Please help

It's good that you have now insured the Tenants' deposit. You will no longer be prevented from getting a possession order on that issue. However it's possible that a pedantic DJ would say that the deposit was not placed in a scheme at the time you served the Section 21 Notice which could render it invalid. To be safe I would serve them with another one now you've protected it. You must also send them a copy of the insurance certificate and the prescribed information for tenants which should have been emailed to you by mydeposits in PDF format. Tick the box requiring a "Red" receipt if you're sending it to the Tenants by email.

I assume that the original fixed period of the tenancy agreement has expired which is why you are using Section 21 to gain possession. This is a 'no fault' ground for possession. In other words you don't have to give any reason other than the fact that you want the property back.

On your application for possession did you also refer to rent arrears? And have you also served the Tenants a Section 8 Notice for those arrears? You can collect those rent arrears by issuing a County Court Summons if you didn't include them. I see that as a bit pointless since they clearly haven't got any money so it would be a hollow victory to get a CCJ.

[CleverClogs (RIP)]

Re: Troublesome Tenant-Please help

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