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StephMarty
03-04-2009, 08:50 AM
Hi guys

I hope somebody will be able to help me. I left the UK last June for Perth, Western Australia and rented out my house. I wanted a months's deposit and rent in advance and upon leaving the UK i was given a sob story by my tenant and listened to the promises that she would get it to me "in a week". Stupid I know. To cut a very long story short my tenant has not paid rent since October of last year and has never paid the deposit etc etc. I commenced an eviction process in February of this year by serving a Section 8 Notice. A court Date was set in Mid-March and takes places at the end of April. My tenant has just contacted me and has said that "she wants my bank account details so she can pay some money but it will not be the full amount". I called my solicitor who says that I have to pass these details onto her which I have done. Further the solicitor says that the court will only entertain a possession order if more than two months arrears exist and given the current economic climate if is difficult to say whether such an issue will be granted despite the financial hardship it is causing me and my family which "may" be considered. If I am not successful in getting my possession order I will need to issue a Section 21 Notice - am I still able to issue such a notice if the court would not issue a possession order? despite not having received a deposit could I still issue such a notice? Sorry to be so long winded about this but I am at my wits end with the worry of it all and feel that if the Court does not see sense there is a strong possibility that I will not be able to afford rent in Oz and my mortgage in the UK. Any help / advice would be very much appreciated

mind the gap
03-04-2009, 09:12 AM
Hi guys

I hope somebody will be able to help me. I left the UK last June for Perth, Western Australia and rented out my house. I wanted a months's deposit and rent in advance and upon leaving the UK i was given a sob story by my tenant and listened to the promises that she would get it to me "in a week". Stupid I know. To cut a very long story short my tenant has not paid rent since October of last year and has never paid the deposit etc etc. I commenced an eviction process in February of this year by serving a Section 8 Notice. A court Date was set in Mid-March and takes places at the end of April. My tenant has just contacted me and has said that "she wants my bank account details so she can pay some money but it will not be the full amount". I called my solicitor who says that I have to pass these details onto her which I have done. Further the solicitor says that the court will only entertain a possession order if more than two months arrears exist and given the current economic climate if is difficult to say whether such an issue will be granted despite the financial hardship it is causing me and my family which "may" be considered. If I am not successful in getting my possession order I will need to issue a Section 21 Notice - am I still able to issue such a notice if the court would not issue a possession order? despite not having received a deposit could I still issue such a notice? Sorry to be so long winded about this but I am at my wits end with the worry of it all and feel that if the Court does not see sense there is a strong possibility that I will not be able to afford rent in Oz and my mortgage in the UK. Any help / advice would be very much appreciated


If your solicitor has told you this, I do not know why. As you have reproduced it above, the advice is incorrect. It should have been thus::

If the rent owed at the time of the hearing is two months or more, then the possession order will be mandatory, assuming all notices served correctly, paperwork in order, etc. Your solicitor should ensure that is the case. Sob stories on either side should not come into it.

If the tenant brings the rent owed down to below two months' worth by the time of the hearing, then the possession order will be discretionary but if other grounds e.g. 10/11 are added, you may be granted it all the same. Or you may not.

Esio Trot
03-04-2009, 09:42 AM
Regardless of what your lawyer says, or if all or most of the rent is paid, still go to court (or be represented).

Instruct your lawyer, if the mandatory ground is no longer available because sufficient rent has been paid to bring it under two months unpaid, to seek a suspended possession order.

There can be conditions to this, such as the tenant continues to pay the rent on time plus £x off the arrears.

Housing law can be quite complicated and it sounds like this area may not be a specialism for your lawyer. Did you check what areas of law he dealt with before instructing him?

StephMarty
03-04-2009, 11:14 AM
Thank you so very much. Other grounds have been added as she is in breach of the Tenancy Agreement on several other counts.............I used a UK Agency to servce all the paperwork so I (hope) can be pretty sure it is all good (???). That said, it is clear that I need to cut my losses and just get the house back............... thanks again


If your solicitor has told you this, I do not know why. As you have reproduced it above, the advice is incorrect. It should have been thus::

If the rent owed at the time of the hearing is two months or more, then the possession order will be mandatory, assuming all notices served correctly, paperwork in order, etc. Your solicitor should ensure that is the case. Sob stories on either side should not come into it.

If the tenant brings the rent owed down to below two months' worth by the time of the hearing, then the possession order will be discretionary but if other grounds e.g. 10/11 are added, you may be granted it all the same. Or you may not.

StephMarty
03-04-2009, 11:19 AM
As with the other response I received, thank you so very much. I knew nothing of a suspended possession order and it is certainly something I will be discussing with my solicitor............................ I used a UK Agency to issue all the paperwork and instruct a solicitor on my behalf - it is all kind of mind-boggling when you are so far away. I guess I just need to get the house back and sell it as finding a suitable tenant can be blinking difficult. Thanks buckets again



Regardless of what your lawyer says, or if all or most of the rent is paid, still go to court (or be represented).

Instruct your lawyer, if the mandatory ground is no longer available because sufficient rent has been paid to bring it under two months unpaid, to seek a suspended possession order.

There can be conditions to this, such as the tenant continues to pay the rent on time plus £x off the arrears.

Housing law can be quite complicated and it sounds like this area may not be a specialism for your lawyer. Did you check what areas of law he dealt with before instructing him?

johnboy
03-04-2009, 13:10 PM
Though you said you didnt take/collect a deposit. Does the contract state there is one?

StephMarty
03-04-2009, 13:41 PM
Ho Johnboy, thanks for your interest. Yes the TA does state the fact that a month's deposit and month's rent in advance was required. I guess I have to shoulder some of the blame for this but I am a sucker for a sob story and believed it when my tenant said it would be paid by a certain date hey ho............... you live and learn by making very costly mistakes! Does this cause me a problem??????



Though you said you didnt take/collect a deposit. Does the contract state there is one?

jta
03-04-2009, 13:54 PM
Hi guys

To cut a very long story short my tenant has not paid rent since October of last year and has never paid the deposit etc etc.................

I commenced an eviction process in February of this year by serving a Section 8 Notice. A court Date was set in Mid-March and takes places at the end of April.....................

My tenant has just contacted me and has said that "she wants my bank account details so she can pay some money but it will not be the full amount". If I am not successful in getting my possession order I will need to issue a Section 21 Notice - am I still able to issue such a notice if the court would not issue a possession order?

Although you say she has not paid a deposit, it may be that the contract says she has, if so, the court would expect that deposit to be in a protection scheme. If it is not, you could end up paying a penalty of 3x the amount. Further, if that is what the court believes, you would not be able to use a S21 until it is.
It might be best if, to be on the safe side, you put the equivalent of the deposit into a scheme.
It does sound like you have a professional tenant here, so be careful.

mind the gap
03-04-2009, 13:57 PM
Although you say she has not paid a deposit, it may be that the contract says she has, if so, the court would expect that deposit to be in a protection scheme. If it is not, you could end up paying a penalty of 3x the amount. Further, if that is what the court believes, you would not be able to use a S21 until it is.
It might be best if, to be on the safe side, you put the equivalent of the deposit into a scheme.
It does sound like you have a professional tenant here, so be careful.

Surely the tenant would have to produce a receipt for any deposit she claims she has paid - the court would not just take her word for it against a LL's ?

jta
03-04-2009, 14:15 PM
Surely the tenant would have to produce a receipt for any deposit she claims she has paid - the court would not just take her word for it against a LL's ?

Ok! So you get this young lady into court and she tearfully tells the judge that she did pay a deposit, but she's lost the receipt or any other paperwork, and it was in cash, so that nasty LL must have just stuck it in his pocket! Who is the judge going to believe? At best it would be 50/50. The OP is in Australia, is he going to be here to rebut anything like that? I'll say it again, he's got to be careful. No matter how good a lawyer he might have, the lawyer is not a witness.

jeffrey
03-04-2009, 14:56 PM
Of course, any civil case (except defamation) is judged by the Court on balance of probabilities. Evidence is but one element in this exercise.

jta
03-04-2009, 15:13 PM
Of course, any civil case (except defamation) is judged by the Court on the balance of probabilities. Evidence is but one element in this exercise.

So Jeffrey, in non-legalese, is my scenario a possibility?

jeffrey
03-04-2009, 15:15 PM
So Jeffrey, in non-legalese, is my scenario a possibility?
Yes, but I do not know how probable it is. Evidence is always a good idea...

StephMarty
04-04-2009, 00:35 AM
Wow - what a minefield. I do appreciate all your comments about the deposit. We knew, once received, we would have to put it in a Deposit Scheme and this was stated on the TA. But of course, was never forthcoming. I sent e-mails to the Tenant about this subject when the funds were not forthcoming with no response - so I am guessing I will need to make my solicitor aware of this. I do not yet know whether she is going to the Court Hearing but in the event she does, I may travel home just in case she tries to give an Oscar Winning performance at my expense..thanks again guys