Troublesome Tenant-Please help

[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

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

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 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

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.

[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

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.

[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.

[CleverClogs (RIP)]

Re: Troublesome Tenant-Please help

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?

Or invite her up to your mansion and feed her to the piranha fish in the moat?

[mpeverton1980]

Re: Troublesome Tenant-Please help

tempted, very tempted ha

[PlanB]

Re: Troublesome Tenant-Please help

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

Are you going ahead with this hearing next Thursday or did you make peace with your Tenant and persuade the Council to pay their Housing Benefit direct to you in future? I know you want rid of them for other reasons but in the meantime you needed to stabilize the financial situation. If you can get that HB paid into your bank account it should continue to be paid all through the lengthy eviction process.

If you're not getting the rent then I expect you may be facing cash-flow problems with your mortgage which need to be tackled. If that is the case then I'm happy to help if you want. The first question would be is the loan a Buy To Let mortgage or a residential mortgage? If it's the latter does the lender know you've moved out and let it (you will need their permission to do this to avoid any breach of contract issues)? I ask because the two products would be handled differently in the event of legal problems.

Anyway, I'm here if you need me

[PlanB]

Re: Troublesome Tenant-Please help

I've received and read your email

Good luck with your hearing tomorrow. If you've served the Section 8 Notice then you're in with a chance. Take a copy of it with you to show the DJ.

If you have only sought possession on the grounds of Section 21 (and didn't mention Section 8 in your application) then you may come unstuck. From memory you didn't serve the Section 8 Notice until after you had issued proceedings which could be the problem. A court can only deal with whatever is asked for in an application.

Take a copy of the Section 21 Notice with you too and argue that it's valid if challenged. If the Tenant or their representative tell the court that they have an Assured Tenancy not an AST then you may fail to get possession.

However if no one turns up (which is often the case) you should keep your mouth shut about the Assured Tenancy and hope the DJ gives you the Order you are seeking.

I would also tell the court that you are only seeking possession because you're at risk of having the property repossessed due to rent arrears because this means without rent coming in you can't pay your mortgage. Go for the synmathy vote if the DJ is dithering or sitting on the fence.

Let us know how you get on. I'll keep my fingers crossed for you

[PlanB]

Re: Troublesome Tenant-Please help

I've remembered one more thing which may help you in court tomorrow.

Take that letter from the Council which says you will be getting HB payments direct because they can't/won't pay you direct unless your Tenant has 8 weeks rent arrears. This will act as evidence that your Tenant has rent arrears so you're entitled to possession under Section 8. I say this because your Tenant may argue that they're not in arrears and the onus is on you to prove that they are since it's your application.

If your application fails then ask the DJ whether you have to make a fresh application using Section 8. It may mean going back to the drawing board but at least you are now getting the rent paid which should tide you over until you remove this troublesome Tenant *

* MP told me about the HB direct payments in an email which is why you won't have seen it on his thread.

[mpeverton1980]

Re: Troublesome Tenant-Please help

Hi All, just update for you. Didn't go to plan at Court today. I was very hopeful this morning and when the tenant didn't turn up thought it would have just been a formality really.

However the court referenced the local councils letter (Type of tenancy) and adjourned the case for 2-3 weeks to give my tenant chance to raise a defence. He advised me to take some advice but financially cannot afford too! (catch 22 scenario really) If the tenant does not put a defence together in this time then I will automatically be awarded the possession order!..

Thanks to all for your help on this, I will never forget the support advice given by you all.X

[PlanB]

Re: Troublesome Tenant-Please help

Didn't go to plan at Court today. I was very hopeful this morning and when the tenant didn't turn up thought it would have just been a formality really.

However the court referenced the local councils letter (Type of tenancy) and adjourned the case for 2-3 weeks to give my tenant chance to raise a defence. . . . If the tenant does not put a defence together in this time then I will automatically be awarded the possession order!..

I had a feeling the Assured Tenancy issue would get in the way If it hadn't been for that you would have got your possession order today since your Tenant didn't turn up for the hearing.

How did the court get to see the Council's letter, did you provide it with your application? Once the court had seen that letter the DJ would be wary of making an order for possession which could result in a set-aside application from the Defendant (Tenant) since you cannot use Section 21 on an Assured Tenancy (as far as I'm aware). It does seem the DJ was doing her job for her because she hadn't filed a Defence raising the Assured Tenancy issue. Courts do tend to side with Tenants and make possession orders only as a last resort.

Have you now served your Section 8 Notice on the Tenant and did the judge make any comments on either the s.21 or the s.8 as grounds for possession? Your Section 21 Notice didn't look compliant to me but maybe the court will accept its 'informality' because you are a LIP. Although that won't get round the Assured Tenancy problem if she does file a Defence.

Is there anyone who can keep watch on the property to see if the Tenant moves out? Some will do a runner once they know there's a repossession on the cards. She won't get re-housed by the Council if she has rent arrears because she'll be classed as *intentionally homeless* but only if you've included the rent arrears in your application and the possession order specifically refers to them. As a single person with no children she won't be seen as being in Priority Need either. She may not want to hang around if she can't use your repossession as a way to get a council place.

If the Tenant didn't show up this time then maybe they won't show up next time. When you've got over the events of today, please let me know as much as possible in case I can help you prepare for the next hearing. Even if your Tenant moves out you have no automatic right to enter the property until you have a possession order.

At least you've got rent coming in while this plays out so not all bad Forget about it over the Easter weekend while you enjoy time with your family.