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View Full Version : T in arrears- use Notices under s.8 or s.21 of 1988 Act?



tubbs
27-01-2009, 12:23 PM
help with rent arrears

hi people new to this forum and lettings really and looking for some advice/help, here is the picture so far, hop its not too long.

1st months rent was paid to the agent

2nd months rent was due to me on Dec 3rd, after much hard trying and many excuses paid on the 6th Jan with a promise of Jan 3rds rent on Jan 8th, though she had slipped into 2 months arrears thought would give her a week rather than serve the section 8.

24 days on form the 3rd of Jan and I have had part payment of £100 a couple of weeks ago towards Jan's rent as claims wages cheque bounced but the rest I have not seen. As od today not a sign thats it coming soon either. Lots of stories/apprant lies from day one, cheques bouncing, solicitors acting on her behalf to claim back etc, just one thing after another.

So on one hand i've got all theses stories and excuses which make me think she is just taking the mick and such a liar or she is trying her best in difficult circumstances, after all i've at least had some rent which perhaps if she was simply looking to not pay I would have had none!

At present claiming to have no money at all, waiting for loan, soon as she has I will get the rent etc etc

supposedly Feb's rent will not be a problem as her wages should be paid into her bank on the 7th by her new employer (the rent is due on the 3rd but I have agreed to take it on the 8th the day after she gets paid,)I have not sent letters claiming outstanding rent but have sent messages originally saying rent must be paid on the 6th and 8th of Jan or further action must be taken, part of which has been paid.

So, some may say get her out straight away, some may say give her time as she's made some effort to apy something, comments please.

Also, the section 8 seems to be my best way to evict as the 6 month lease does not end until April. Does she HAVE to be in 2 months arrears for me to serve this (i dont think she does if i calim under section 10 or 11 but not sure)? If Feb 3rd comes around and she hasnt paid all of Jan's rent and is back in 2 months arrears I'm thinking giving her until Feb 8th to clear things as she says she is paid on the 8th, so if nothing paid by the 8th I can serve this notice, so what is the correct procedure of doing this?

but, is she settles say Jan's rent but another problem with Feb then she slipd back to 1 months in arrears, does this mean I can't serve this notice? (but as mentioned above mayb i can claiming section 10/11.

jeffrey
27-01-2009, 12:24 PM
Way too long. Please summarise!

tubbs
27-01-2009, 12:41 PM
any better?

MrJohnnyB
27-01-2009, 12:49 PM
Also, the section 8 seems to be my best way to evict as the 6 month lease does not end until April. Does she HAVE to be in 2 months arrears for me to serve this (i dont think she does if i calim under section 10 or 11 but not sure)? .

The two month thing applies to Ground 8. Grounds 10 & 11 both are probably better for your situation really. In that 11 basically means you have failed to recieve payment on time on more than one occassion.

jeffrey
27-01-2009, 13:02 PM
Also, the section 8 seems to be my best way to evict as the 6 month lease does not end until April. Does she HAVE to be in 2 months arrears for me to serve this?
No, she has to have two months' rent unpaid- not the same thing. Search for other LZ threads re section 8, if you need more.

tubbs
27-01-2009, 13:04 PM
The two month thing applies to Ground 8. Grounds 10 & 11 both are probably better for your situation really. In that 11 basically means you have failed to recieve payment on time on more than one occassion.

so even if i do get paid eventually for Jan and say even get Febs on the 8th as agreed I can still issue notice to evict under the grounds that she's constantly paying late then? though guess its not as clear cut getting the eviction notice if she's up to date though?

jeffrey
27-01-2009, 13:05 PM
so even if i do get paid eventually for Jan and say even get Febs on the 8th as agreed I can still issue notice to evict under the grounds that she's constantly paying late then? though guess its not as clear cut getting the eviction notice if she's up to date though?
Well, it's not a "Notice to Evict"; but, yes, you can still use [discretionary] grounds 10/11 in your s.8 Notice.

Paul Gibbs
27-01-2009, 14:00 PM
NB grounds 10 and 11 are discretionary - so you would have to convince the judge its right for her to be evicted. The judge could exercise his/her discretion and allow T to stay.

Ground 8 is a mandatory ground so as long as the tenant does not clear the arrears to less than 2 months rent the court has no discretion and must award possession.

It might be worth waiting a short period so that ground 8 is available - otherwise you are at the mercy of the judge

tubbs
27-01-2009, 15:50 PM
thanks for the advice ppl, 3rd of feb is when she would be 2 months in arrears, but i've already accepted to take her rent on the 8th after she's paid at her new job so I will wait until the 8th to see if febs is paid, by then hopefully i will have jans rent anyway.

if nothing by the 8th and she IS in 2 months then I will have to act, although i was advised by an agent to just serve section 21 which would come into force on the 3rd of May, they said this should be quicker to get rid of them than go down the section 8 route in february, and after reading a few threads in here the section 8 could take a long time. would anyone concur to simply issue the section 21 and hope to get some more rent before she leaves?

Poppy
27-01-2009, 16:05 PM
Yes, there is nothing to prevent you issuing a section 21 notice to expire when the fixed term ends and potentially have it running along with a section 8 notice. Make sure you get the dates correct on the section 21 notice.

jeffrey
27-01-2009, 16:06 PM
thanks for the advice ppl, 3rd of feb is when she would be 2 months in arrears, but i've already accepted to take her rent on the 8th after she's paid at her new job so I will wait until the 8th to see if febs is paid, by then hopefully i will have jans rent anyway.

if nothing by the 8th and she IS in 2 months then I will have to act, although i was advised by an agent to just serve section 21 which would come into force on the 3rd of May, they said this should be quicker to get rid of them than go down the section 8 route in february, and after reading a few threads in here the section 8 could take a long time. would anyone concur to simply issue the section 21 and hope to get some more rent before she leaves?
Keep in mind the difference between "in arrears" and "unpaid". They are NOT the same!
See http://www.landlordzone.co.uk/forums/showthread.php?t=15964 for chapter and verse.

tubbs
28-01-2009, 13:55 PM
Keep in mind the difference between "in arrears" and "unpaid". They are NOT the same!
See http://www.landlordzone.co.uk/forums/showthread.php?t=15964 for chapter and verse.

thanks for that, i keep saying arrears when in actual fact it would be 'upaid' so i should be ok, only once you suffer problems are your eyes opened up to the tangled web of tenancy agreements, well it seems that way to me anyway.

tubbs
09-02-2009, 12:39 PM
hi ppl,

about 11.5 weeks to run on an AST with T approx 1.75 months rent in arrears, after reading various things i'm just considering serving the s21 as this may come up quicker than a court appearance for the s8 and may be easier to get pos back.

1st point is what happens when the AST runs out and the s21 becomes active? can i simply go into the house and claim pos myself? maybe change the locks if for some reason T refuses to move out? or will this be a lenghty process like the s8 route to evict, i.e. 2 months for a court hearing etc. so in reality its not perhaps quicker than the s8 route.

2nd point is in terms of recovering the rent arrears does one route (s8 or s21) make it easier to reclaim money or are both pretty much relying on the small claims court/ccj route? which in theory sound good but in practice may be a waste of time.

3rd is it easy to make sure i get the deposit from the letting agents to cover unpaid rent.

thought/comments appreciated.

Paul Gibbs
09-02-2009, 16:44 PM
when the fixed period within the tenancy expires the tenancy automatically reverts to being a statutory periodic tenancy.

To evict the tenant you need to serve either a s21 notice or a s8 notice (if you have grounds)

Once the required time has elapsed you cannot just walk into the property - You will need to issue court proceedings to recover possession. If you have served a s21 notice you can use the accelerated procedure.

If you use the accelerated procedure you cannot claim for rent arrears - if you want to do this you need to commence a normal part 8 claim (form N5 from the court) You should think whether it is economically viable before you risk throwing good money after bad - do you have a guarantor?

When did the tenants move in? Their deposit should be protected!!!

tubbs
09-02-2009, 17:52 PM
when the fixed period within the tenancy expires the tenancy automatically reverts to being a statutory periodic tenancy.

To evict the tenant you need to serve either a s21 notice or a s8 notice (if you have grounds)

Once the required time has elapsed you cannot just walk into the property - You will need to issue court proceedings to recover possession. If you have served a s21 notice you can use the accelerated procedure.

If you use the accelerated procedure you cannot claim for rent arrears - if you want to do this you need to commence a normal part 8 claim (form N5 from the court) You should think whether it is economically viable before you risk throwing good money after bad - do you have a guarantor?

When did the tenants move in? Their deposit should be protected!!!

thanks paul

normal part 8 claim, is this the same as section 8 claim? yes i will have grounds as rent not paid and rent always late.

so ur saying if I issue the s21 only and wait for that date to seek pos then i cant claim for unpaid rent fullstop? even when theyve left say in the claims court etc?

i've reluctant to get a solicitor involved for the added costs especially if they cant be recovered, hence the s21, hope to get as much rent as i can from them before they leave, read £1000 somewhere, could do the sec8 myself but of course as a newbie very caucious

unf there is no guarantor, T moved in on the 3rd Nov, the agent has their deposit, I'm pretty certain it is protected as i could have done that myself but they said they could hold it, its a big chain agent. should i be able to at least keep this relativley easy as payment towards unpaid rent.

so, if the T did not move out after the s21 it could then take 2 months or so to get rid, so perhaps not quicker than sec8, but in theory they should move out after the 6 months, whether they've paid rent or not, not sure if that means they would stay in or just move on.

jeffrey
09-02-2009, 18:26 PM
normal part 8 claim, is this the same as section 8 claim?
No. Distinguish between:
a. section 8 (of the Housing Act 1988); and
b. Part 8 (of the Civil Procedure Rules).

tubbs
29-10-2009, 13:00 PM
hi people, sorry for length of post just trying to give all info.

background..... T's signed the first AST (two friends, both names on contract) and the S21 was issued and signed by them both. 2nd contract was issued but this appears to have been never signed by them and now appears lost, in actual fact to help process one of the T's benefit claims we reverted back to the 1st contact and sent copies of this to him and the council and took the stance that we are now on a monthly periodic.

my first quesiton is regarding the S21 that was issued way back, want to confirm that as the date of this has passed it is live and still active as the new contracts (which incidentally were due to expire 2nd Dec 09) seem lost forever. therefore i dont need to give 2 months notice, i can say i need you out in 1 month or whatever, or i could even go straight to court to have them evicted or act upon the S21, though i realise the court could see this as unfair i just want clarification. probably looking at the 30 days notice.

second question... one of T's has claimed to not have lived there for 2 months, which i believe, he has still paid his half of rent but has no intention to stay past the 2nd of Dec, I have told him to confirm in writing (not sure if thats actually necessary). Anyway the other T is behind with his payments, 5 weeks worth and another month due on the 2nd of Nov. what is the legal situation of one giving me notice? I obv want rid of the non payer also but does he have any right to stay longer? if one leaves do they both have to as its a shared contract, and up to me to take on the other on his own?

although i was thinking of writing explaining that the S21 was issued on such an such date and i require possession in one month i.e on 2nd Dec anyway to get rid of them both wihtout the 2 months notice

jeffrey
29-10-2009, 14:38 PM
The second AST is still running, even if the documentation is missing.

tubbs
30-10-2009, 14:33 PM
The second AST is still running, even if the documentation is missing.

even if never signed and no copy anywhere? i asked about this a while ago and there is nothing to indicate that thye accepted new contract ie increase in rent etc.

but if one is leaving the other has to also yes?

jeffrey
01-11-2009, 22:51 PM
It's always a question of evidence. What can you prove?

tubbs
25-11-2009, 10:46 AM
hi

i issued a 2nd AST to the T's which was due to run out on the 2nd Dec, however this was never signed and both copies were misslaid in their hands, a cop of the AST was requested by one of the T's for a housing benefit claim so without any sign of the new one the old/existing one was given to him and a copy sent to the council. i have been told that the 2nd AST IS in place but i am certain it does not physically exist anywhere.

My plan therefore is to use the S21 that was given when they signed the first AST, the date on this of course will be about 6 months but that doesnt matter right? if so then whats the next steps from having a S21 that is good to go?

one tenant for sure wants to leave in a weeks time (2nd Dec), i'm not so sure about the other, despite indicating that he is, he's payin no rent with me so might think he's onto a good thing, i've not issued another S8 or S21 thinking the 2nd AST was live as I thought i could get away with the first one, plus with the T not paying rent at the moment i wanted to keep realtions as good as possible to try and get some money, hoping that they both indeed move out on schedule. anyway the money/rent is another issue this is really about the process i need to follow having this S21 in my hand signed by them both.

thanks

P.Pilcher
25-11-2009, 11:09 AM
Remember that judges are tenant friendly and will bend over backwards to keep a tenant in place if they can. Documents like your second AST have a property of magically re-appearing when they are needed and this will cancel out your original section 21 notice.
The totally correct procedure I suppose would be to serve a new section 21 notice and after the two month notice period apply to the court using Form N5 as you do not possess a copy of the new AST - even though it is unsigned.
Alternatively, as you have a copy of the original AST which is signed and the second should have been lost, you could risk applying to the court using form N5A now as more than two months notice has been served and keep your fingers crossed!

Please note what I say below.

P.P.

tom999
25-11-2009, 11:55 AM
i've not issued another S8 or S21 thinking the 2nd AST was live as I thought i could get away with the first one...A Judge and T's may have a slightly different perspective, particularly when LL is trying to remove T from the property.

Second AST* may be oral (does not need to "physically exist"), and will replace first AST, making existing s.21 invalid. Serve a new valid s.21 for second AST, with correct expiry date. Once expired and providing 2 months notice has been given (and after fixed term of AST), apply for a Court Order, using Form N5 (or Form N5B).

* If AST in E&W and any protectable deposit is protected.

jeffrey
25-11-2009, 11:55 AM
Remember that judges are tenant friendly.
No. Judges and Courts are governed by strict impartiality rules. Only if a law itself is 'tenant-friendly' can they be too.

tubbs
26-11-2009, 09:55 AM
thanks for replies


Documents like your second AST have a property of magically re-appearing when they are needed and this will cancel out your original section 21 notice.

as you have a copy of the original AST which is signed and the second should have been lost, you could risk applying to the court using form N5A now as more than two months notice has been served and keep your fingers crossed!

Please note what I say below.

P.P.

yes i know that but that would be the risk i would take, i just dont want the non paying tenant who is left behind thinking he has another 2 months of free rent, although a S8 served at the same time might hurry him along.


A Judge and T's may have a slightly different perspective, particularly when LL is trying to remove T from the property.

Second AST* may be oral (does not need to "physically exist"), and will replace first AST, making existing s.21 invalid. Serve a new valid s.21 for second AST, with correct expiry date. Once expired and providing 2 months notice has been given (and after fixed term of AST), apply for a Court Order, using Form N5 (or Form N5B).

* If AST in E&W and any protectable deposit is protected.

yes i guess the the T's could argue the 2nd is verbally agreed, afterall they have indicated moving out on the 2nd of Dec which is when that one runs out. they are intelligent people and could use this against me.

what do you mean by your last comment tom... the *

tom999
26-11-2009, 10:13 AM
what do you mean by your last comment tom... the *

s.21 would only be valid providing that for an AST in England or Wales; any deposit taken from T was protected in a government approved scheme, i.e. if annual rent < £25k & tenancy began after April 2007.

tubbs
26-11-2009, 10:33 AM
hi

is there a example of a S8 i can see? i have downloaded the one form this site and its full of text which i'm not sure if should be deleted or not, notes i think that shouldnt be there on the actual form, so a copy of an actual form would be handy to look at.

thanks

jeffrey
26-11-2009, 12:26 PM
tenancy began after April 2007.
Nearly. Read '...began on or after 6 April 2007'.

Moderator1
01-03-2010, 17:04 PM
Five separate threads by same member have been merged here. Do not cause problems by starting continuation threads; use the same one.