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jghomer
16-03-2006, 10:47 AM
I have a tenant who has no intention of paying any more rent. I have issued the S21 and will waiting for it to expire before applying for accelerated possession.

In the mean time, her gas, elec & water comes off our supply and we invoice her for it quarterly. As she is not paying for these either, are we allowed to disconnect the supplies? I am guessing not but I know someone here will know for certain.

There's something REALLY ANNOYING about a tenant living rent free AND not paying for utilities! :-(

Thanks in advance for any advice.

MrShed
16-03-2006, 11:00 AM
No no and no. It would be classed as harrassment.

davidjohnbutton
16-03-2006, 11:19 AM
Personally, and I have been in this situation - install an electric prepayment meter in her supply line and set the charge sufficiently high to collect any gas and water charges as well.

I doubt you would be prosecuted for this by either police or council because no law on earth can force you to pay for someone else's utilities though setting the meter as I say would be a positively grey area being that is illegal to charge more for electricity than you yourself pay - however, you could counter this by saying that although she puts 10p per unit into the meter - you only charge her 6p for the electricity consumed and the rest goes to the gas and water charges.

Only other way is for her to apply for her own supply to the utilities - she aint going to do that while she is enjoying freebies off you is she?

pms
16-03-2006, 13:22 PM
I have a tenant who has no intention of paying any more rent. I have issued the S21 and will waiting for it to expire before applying for accelerated possession.

In the mean time, her gas, elec & water comes off our supply and we invoice her for it quarterly. As she is not paying for these either, are we allowed to disconnect the supplies? I am guessing not but I know someone here will know for certain.

There's something REALLY ANNOYING about a tenant living rent free AND not paying for utilities! :-(

Thanks in advance for any advice.

I agree with Mr Shed you could be wide open to her counterclaiming harrassment against you and the S21 notice would be "thrown out" by the judge.

davidjohnbutton
16-03-2006, 15:07 PM
Cutting off the water/gas/electricity would NOT result in the S21 notice being thrown out by the judge - the only way a judge could throw such a notice out is if it did not conform to the legally required wording or if the incorrect possession date was shown or there was some other irregularity which invalidated the notice.

The tenant could not counterclaim in the possession proceedings under S21 because there is no scope for a counterclaim to possession - its either a possession order or the application is thrown out because of irregularity.

Unlike an ordinary summons issued for rent or damages where the tenant could issue a counterclaim for unlawful acts of the landlord.

Stick to what you know best PMS - clearly your landlording knowledge is not as good as your other five "strings"!

Ericthelobster
16-03-2006, 15:29 PM
Personally, and I have been in this situation - install an electric prepayment meter in her supply line and set the charge sufficiently high to collect any gas and water charges as well.Good idea - but why not have a gas prepayment meter fitted at the same time? Or does fitting these both cost if they are 'subcontracted' meters rather than the 'main' ones?

davidjohnbutton
16-03-2006, 15:43 PM
It is quite easy for an electrician to install a separate electricity meter, but not so easy for a prepayment gas meter UNLESS the person being supplied has debt problems so as not to qualify for a credit meter quite apart from the logistics of putting in a "sub" gas meter which belongs to the landlord - besides cash gas meters are no longer around - they are all Quantum meters now with a card "charged" with cash paid over the counter at the post office and then transferred as a credit to the Quantum meter.

pms
16-03-2006, 15:53 PM
Cutting off the water/gas/electricity would NOT result in the S21 notice being thrown out by the judge - the only way a judge could throw such a notice out is if it did not conform to the legally required wording or if the incorrect possession date was shown or there was some other irregularity which invalidated the notice.

The tenant could not counterclaim in the possession proceedings under S21 because there is no scope for a counterclaim to possession - its either a possession order or the application is thrown out because of irregularity.

Unlike an ordinary summons issued for rent or damages where the tenant could issue a counterclaim for unlawful acts of the landlord.

Stick to what you know best PMS - clearly your landlording knowledge is not as good as your other five "strings"!

There's holes in S21. Watch this space!! Nothing is watertight!!

Worldlife
16-03-2006, 18:08 PM
There's holes in S21. Watch this space!! Nothing is watertight!!

I await the leak with much trepidation :D

davidjohnbutton
16-03-2006, 21:35 PM
My Rolex is - at least down to 300m !!!!!!

PMS I do hate to criticise another forum member, but you really ought to refrain from making sweeping statements like you do. There are no holes in a Section 21 that is properly served with the correct dates on it and the correct wording as laid down by parliament. On seeing one of those "in the flesh" as it were accompanied by the correct forms filled in and the fee paid - a County Court Judge MUST make a possession order - he/she may make it without a hearing or at a hearing - but the ultimate result is a possession order if all the paperwork is correct and the S21 notice correctly served.

P.Pilcher
16-03-2006, 23:02 PM
And, I assume when the judge cocks it up as we have read here that they do from time to time, justified by their own trumped up importance, without a Q.C. to attempt to bring them to heel. We can appeal - we will almost certainly win but at what cost ............... legal representation, further loss of rent e.t.c. e.t.c. DJB, I know that you are absoloutely correct, but I have a little sympathy for what other posters have said.

On reading between the lines of the many posts on such matters on this board I have gained the impression that if a solicitor/barrister is appearing before a county court judge, he can get away with all sorts of things on his client's behalf as a legal professional that you or I couldn't have a hope in hell of getting away with and wouldn't try to!

P.P.

pms
16-03-2006, 23:16 PM
My Rolex is - at least down to 300m !!!!!!

PMS I do hate to criticise another forum member, but you really ought to refrain from making sweeping statements like you do. There are no holes in a Section 21 that is properly served with the correct dates on it and the correct wording as laid down by parliament. On seeing one of those "in the flesh" as it were accompanied by the correct forms filled in and the fee paid - a County Court Judge MUST make a possession order - he/she may make it without a hearing or at a hearing - but the ultimate result is a possession order if all the paperwork is correct and the S21 notice correctly served.

DJB:I gather your trying to incite Macdonald vs Ferdinad (2003) at the appeal court whch if your up with case law I need say no more.So don't critize.Judgements have a habit of going wrong (so your rolex has just lost another 150 mill) and in replying to your last reply i.e "strings" I must point out to you I manage on behalf of a landlord i.e agent.

pms
16-03-2006, 23:23 PM
And, I assume when the judge cocks it up as we have read here that they do from time to time, justified by their own trumped up importance, without a Q.C. to attempt to bring them to heel. We can appeal - we will almost certainly win but at what cost ............... legal representation, further loss of rent e.t.c. e.t.c. DJB, I know that you are absoloutely correct, but I have a little sympathy for what other posters have said.

On reading between the lines of the many posts on such matters on this board I have gained the impression that if a solicitor/barrister is appearing before a county court judge, he can get away with all sorts of things on his client's behalf as a legal professional that you or I couldn't have a hope in hell of getting away with and wouldn't try to!

P.P.

I totally agree with what you say and I think to be fair that can happen either way. Landlord or tenant

Paul_f
17-03-2006, 09:55 AM
Away with these silly arguments. DJB is more than right!

One of the exam type questions in the TA goes something like "What is the only Notice to be served upon a tenant that will (eventually) guarantee the landlord possession" And the answer is a S.21 (Don't tell me that a S.8 Notice will do the same because it won't!)

P.Pilcher
17-03-2006, 13:24 PM
Yes Paul, but are ALL county court judges aware of this? From what I have read on this board some have accepted all sorts of conditions into the granting of a possession order under the S.21 process.
On the other hand, a C.C. judge has personally advised me in a hearing, that he was prepared to accept that my letter giving a tenant 2 months notice to quit as satisfying the section 21 notice requirement - but he could not be certain that his colleagues would do the same. That was before I discovered and started to avidly read this board!

P.P.

jghomer
17-03-2006, 14:40 PM
Many thanks for your responses

pms
17-03-2006, 15:03 PM
Away with these silly arguments. DJB is more than right!

One of the exam type questions in the TA goes something like "What is the only Notice to be served upon a tenant that will (eventually) guarantee the landlord possession" And the answer is a S.21 (Don't tell me that a S.8 Notice will do the same because it won't!)

Paul f:A little scenario for you.A S21 notice is issued and the tenant files a defence and in that defence the tenant puts in something that he/she hasn't had a gas saftey check carried out which is implied within the terms of the tenancy.1) Would that not make the S21 NOTICE invalid as there has been a breach of the tenancy on the Landlords part. 2) Although the s21 notice is in order does the judge not have the descrsion to postpone the proceedings due to the fact there has been a breach.3) We know that an ast on expiry of the fixed term(1 year) becomes a spt but either way it is still an ast on the same terms and conditions as before.So technically the tenant could argue on the fact that "same terms and conditions" mean the same as the fixed term(1year).My point being here that if a tenancy becomes an SPT or AST whichever way you want to put it and the landlord wanted to end the tenancy on the 11th month would the S21 NOTICE be valid?.I beleive it would be valid but a cc judge might look at it differently.

RichieP
17-03-2006, 15:35 PM
We could all think of little scenarios that might make a judge question the vailidity of the S21, but if you're a good landlord, like most of us on here http://www.snowcrest.net/cafemocha/images/Smiley Angel.gif, then there will be no such problems.

davidjohnbutton
17-03-2006, 17:15 PM
PMS - the judge has to ONLY ask these questions:-

1. Has a S21 Notice been served? (the court form asks this question and asks how it has been served)
2. Has the S21 which has been served been completed correctly and the correct dates put on it and giving a minimum 2 months notice?
3. Do I have a copy of the written agreement showing that both landlord and tenant agreed to a let of x months?
4. Is the landlord entitled to a possession order subject to 5 below?
5. Is a hearing required because the tenant denies receipt of the notice or for some other reason that I MUST consider.
6. Because of 5 above - do I need a hearing or can I safely make a PO based on what papers I have in front of me?
7. Has the landlord paid the court fee and filled in the correct court papers?

If all is correct at either the paper decision or the hearing decision - the ultimate result is a possession order.
If not, then the claim will be struck out and the landlord has to start all over again which may include a 2 month wait for a formerly defective S21 notice to be correctly made out, served and expired.

Anything else is superflous to the decision the judge has to make - the tenant cannot put in any couterclaim in the defence and even if the house has no windows or doors and the tenant has 100 kids and his 5 grannies to re-house - there are no other considerations other than those above.

I recently heard of a solicitor report that in the claim form it was stated that the notice was served by insertion through the letter-box - the tenant claimed (falsely I believe) that he did not have a letterbox - the judge ordered a hearing - naturally it takes longer to get possession through having a hearing than an order based on paperwork alone - the result was that the solicitors concerned put in a huge bill for costs which included sending a photographer out to the property concerned to photograph the letter-box and then to appear in court as a witness - bet the tenant who had those costs awarded against him won't try the same trick again!!!!!!!

pms
17-03-2006, 22:35 PM
dJB ; Im not disagreing as to What you sayin but YOU have got to remember that S21 is only the notice to quit and as long you have all the paperwork in order then yes you would get judgment we are not arguing that but in the example I gave you earlirer how would you get around that.Ie you breached tenacey would he judge still give you you PO or would you like to be fined 15 grand this is the grey area

davidjohnbutton
17-03-2006, 23:47 PM
The judge would have no option but to give a possession order since there is no part of the legislation that says effectively "the landlord is entitled to a possession order except where he/she has not got a gas certificate" if you see what I mean.

In a breach of contract, the tenant would be entitled to damages - however, the mere fact that there is no gas certificate in itself would not lead to any compensation being paid as the tenant has not lost anything - if however, the gas appliances were faulty and caused a loss by setting something on fire and there were the same fact of no gas certificate, then the actionable cause would be the faulty gas fire (assuming it belonged to the landlord) not the lack of gas certificate. However, the HSE is the body responsible for enforcing gas safety inspections in tenanted houses and they can prosecute the landlord or sometimes the agent in the criminal courts.

Note that where a tenant fits a gas fire himself, with or without the landlords consent, the landlord ceases to be responsible for gas safety checks on any such gas fire AND the flue to which it is connected and the tenant is under no obligation to have a safety check ever - let alone each year. The landlord would still, under the above conditions, be responsible for any pipework that the landlord owns from the meter to the gas fire but mere pipework alone does not require a safety check - only if there is a user appliance at the end of it which belongs to the landlord.

MrShed
17-03-2006, 23:48 PM
I assume, DJB, that should the tenant vacate the property and leave in such an installed fire, that the landlord would become responsible for checking it were it still there when new tenants moved in? Sorry slight tangent, just curious!

davidjohnbutton
18-03-2006, 00:07 AM
My understanding is that if a tenant vacates leaving a gas fire behind - the landlord has two choices:-

1. remove it back to the joining fitting leaving the meter to fitting pipe in place.
2. leave it in and when a new tenant comes in, the landlord will have to have a gas safety inspection done each year.

effectively the gas fire would be treated under 2 as the landlords property.

pms
18-03-2006, 00:15 AM
My understanding is that if a tenant vacates leaving a gas fire behind - the landlord has two choices:-

1. remove it back to the joining fitting leaving the meter to fitting pipe in place.
2. leave it in and when a new tenant comes in, the landlord will have to have a gas safety inspection done each year.

effectively the gas fire would be treated under 2 as the landlords property.

Djb: Read the law no gas saftey check = £15,000 fine or 3 months in prison

MrShed
18-03-2006, 00:17 AM
Where has anything other been said? You appear to be contradicting for contradictings sake....no one has denied the criminality of not performing adequate gas safety checks!

davidjohnbutton
18-03-2006, 00:24 AM
See

http://www.hse.gov.uk/pubns/indg285.pdf

cris/c
18-03-2006, 11:28 AM
'Cutting off the water/gas/electricity would NOT result in the S21 notice being thrown out by the judge - the only way a judge could throw such a notice out is if it did not conform to the legally required wording or if the incorrect possession date was shown or there was some other irregularity which invalidated the notice.' DJB

DJB Question,

Is is possible that cutting off utilities could amount to harrassing the tenant into complying with the S21, therefore invalidating the notice? As I understand it, (I have only been managing my own properties for a short while, so I am still learning) only a court order can terminate the tenancy. I understand that a S21 correctily served with paperwork all in order is indisputable. If a LL makes any move to force the tenant into complying with the notice before obtaining the possession order, are you saying that the tenant would have no way of bringing this to the attention of the CC Judge without instigating a separate claim against the LL for harrassment? in other words, it has nothing to do with the S21?

MrShed
18-03-2006, 11:44 AM
cris....there is no "compliance" from the tenant with a S21, it is an automatic way of gaining possession of the property. What you are meaning would be unlawful eviction(or attempted unlawful eviction) due to harrassment, and it is irrelevant whether a S21 had been served or not at the time. It is possible that this kind of harrassment may occur more frequently after an S21 has been served, to hurry up the eviction. But easiest way to think about it is it would be a totally different type of eviction, and are not linked, even if chronologically close. I would personally suspect however that it is not all that often that both "methods" would be used, as most landlords who know enough about renting to know about S21 etc, would probably know enough to realise that the criminal act committed by unlawful eviction really isn't worth it! Maybe that is just me being optimistic however :o

cris/c
18-03-2006, 13:42 PM
Thanks Mr Shed,

Question answered.

pms
18-03-2006, 22:15 PM
'Cutting off the water/gas/electricity would NOT result in the S21 notice being thrown out by the judge - the only way a judge could throw such a notice out is if it did not conform to the legally required wording or if the incorrect possession date was shown or there was some other irregularity which invalidated the notice.' DJB

DJB Question,

Is is possible that cutting off utilities could amount to harrassing the tenant into complying with the S21, therefore invalidating the notice? As I understand it, (I have only been managing my own properties for a short while, so I am still learning) only a court order can terminate the tenancy. I understand that a S21 correctily served with paperwork all in order is indisputable. If a LL makes any move to force the tenant into complying with the notice before obtaining the possession order, are you saying that the tenant would have no way of bringing this to the attention of the CC Judge without instigating a separate claim against the LL for harrassment? in other words, it has nothing to do with the S21?

The S21 NOTICE is only the Notice to quit.That doesn't mean that the tenant has to vacate the property.Obviously to do it the legal way the landlord has to then go to court to get a pocession order,eviction etc. However that will take weeks, and in the meantime the tenant if's his clever( and has either an ast or spt) will rack up 2 months of rent arrears thus making the S21 notice invalid as the landlord would then have to issue a S8 notice for rent arrears ( nothing to say in the HA(1988) THAT you can't do this) which could mean that it could take up to a year to get your property back.However going back to the last post:The law works in a very mysterious way( although DGB MIGHT NOT AGREE WITH ME).I will try and keep it simple.Under the Rent Act(1977) an eviction can only be carried out by a court of law so in retrospect if the law has been followed then no problem.To the question of harrassment not a good idea the CCJ will favour the tenant(100%).Hope this helps but im not giving AWAY THE IMPLECATIONS OF EITHER SIDE.

davidjohnbutton
18-03-2006, 23:05 PM
Please absolutely ignore PMS - the advice given is totally duff.

The issue of a Section 21 notice is not invalidated by the tenant further accruing two months rent arrears. You can serve the S21 notice, either the a or b notice depending on whether the tenancy is in the fixed period or is a a periodic tenancy AT ANY TIME after the tenancy has commenced - but the tenant MUST be given at least TWO MONTHS NOTICE and in the case of a periodic tenancy following the fixed period. the expiry date must be the end of a period of the tenancy i.e. on a weekly tenancy, the last day before the rent day, and in the case of a monthly tenancy, the last day of the month before the rent day and must not demand possession before the end of the fixed period. There is nothing to stop a later or earlier S8 notice being issued for rent arrears, or being served at the same time as a S21 provided the rules and conditions applying to each notice are prevalent at the time of service!

It will never take a year to get possession under S21 if the notice is properly served and completed - the maximum is approx 2 months from issuing the summons and in some courts with an easier caseload and with no hearing being necessary - it could be as little as a month.

The Protection from Eviction Act 1977 is the law that says only a court can order possession of residential premises - not the Rent Act 1977 which deals with regulated rents on protected tenancies where there is no right to recover possession unless there are rent arrears or other closely defined reasons.

Also PMS, for your information - a County Court Judgment is a judgment for money in general terms - a Possession Order is just that - an order that someone gives up possession of a house. If the paperwork is right - then a S21 possession is ultimately the end result - it cannot be counterclaimed by the tenant for money - for example if the tenant says he wants compensation for repairs not being done. However, on a S8 possession, it IS possible for the tenant to counterclaim because money is being sought as well as the possession order.

Get your facts right PMS!

MrShed
18-03-2006, 23:13 PM
will rack up 2 months of rent arrears thus making the S21 notice invalid

Thats one of the funniest attempts at advice I've ever read :D

P.Pilcher
18-03-2006, 23:53 PM
There is NO way that a correctly served section 21 notice can be made invalid unless the landlord withdraws it. It is NOT affected by rent owing or anything else. As has been stated previously, this is the only guaranteed way that a landlord can regain possession of his property as no reason for the possession is required..

P.P.

pms
19-03-2006, 21:41 PM
Please absolutely ignore PMS - the advice given is totally duff.

The issue of a Section 21 notice is not invalidated by the tenant further accruing two months rent arrears. You can serve the S21 notice, either the a or b notice depending on whether the tenancy is in the fixed period or is a a periodic tenancy AT ANY TIME after the tenancy has commenced - but the tenant MUST be given at least TWO MONTHS NOTICE and in the case of a periodic tenancy following the fixed period. the expiry date must be the end of a period of the tenancy i.e. on a weekly tenancy, the last day before the rent day, and in the case of a monthly tenancy, the last day of the month before the rent day and must not demand possession before the end of the fixed period. There is nothing to stop a later or earlier S8 notice being issued for rent arrears, or being served at the same time as a S21 provided the rules and conditions applying to each notice are prevalent at the time of service!

It will never take a year to get possession under S21 if the notice is properly served and completed - the maximum is approx 2 months from issuing the summons and in some courts with an easier caseload and with no hearing being necessary - it could be as little as a month.

The Protection from Eviction Act 1977 is the law that says only a court can order possession of residential premises - not the Rent Act 1977 which deals with regulated rents on protected tenancies where there is no right to recover possession unless there are rent arrears or other closely defined reasons.

Also PMS, for your information - a County Court Judgment is a judgment for money in general terms - a Possession Order is just that - an order that someone gives up possession of a house. If the paperwork is right - then a S21 possession is ultimately the end result - it cannot be counterclaimed by the tenant for money - for example if the tenant says he wants compensation for repairs not being done. However, on a S8 possession, it IS possible for the tenant to counterclaim because money is being sought as well as the possession order.

Get your facts right PMS!

Djb: there is nothing to say that the information is duff.You seem to wallow in your own self importance i.e you do not like it because you now have someone who can "shoot you down".You try to give the impression that S21 and yourself are the best thing since " sliced bread" dream on!! THE POINT you fail to see is the judge.If everything is in order yes then the judge has no option to grant the order.BUT IT STATES IN s21 THAT the judge has to be satisfied.Satisfied to what,satisfied that there are no other mitagating circumstances that could influence a decesion(where does it say in HA(1988) THAT the paperwork has to be in order)( although this has been noted in Ferdinad vs Macdonald(2003)) it has not been amended in the act. You need to go back to previous case law to work that one out.I suggest you read CPR 55 AND THE LINK IS BELOW

http://www.hrothgar.co.uk/YAWS/rules/part-55.htm#rh-cpr-55.16(1)(b)


FURTHERMORE: DJB DON'T UNDERMINE MY INTELLIGENCE which is what you do to many of the members on this forum.I look at the law from many angles and yes in many circumstances I think that the law is an "arse" and a county court judgement at Harrogate County Court in 2004 justified this(I'll provide you with the link later) because the word "virtue" was not placed on the S21 NOTICE it was deemed to be invalid.So if a word which has the same "meaning" as virtue is used would that make the notice invalid.And DJB I DON'T NEED TO RUN TO OTHER MEMBERS TO JUSTIFY MY POSITION i call that running scared(I read the threads) and yes I will grant you one thing I do work in L.A NOT ONE BUT QUITE A FEW so obviously if you want a "battle" then bring it on, if you want constructive arguement then thats fine by me either way im not going to be silcenced by you or anyone else.As for making complaints that works both ways and what makes you think that I haven't got in first.

davidjohnbutton
19-03-2006, 22:01 PM
When I disagreed with you PMS - I did not use abusive and foul language or call you names. Neither did I call your profession into disrepute by saying for example that you were a dodgy EHO. You have done all three of these things to me and I have complained to the forum organisers by email referring them to the thread where you have done so.

I dispute the accuracy of some of the information you have posted - I have done that without being abusive.

Final word on this PMS from me - GROW UP!

pms
19-03-2006, 22:25 PM
When I disagreed with you PMS - I did not use abusive and foul language or call you names. Neither did I call your profession into disrepute by saying for example that you were a dodgy EHO. You have done all three of these things to me and I have complained to the forum organisers by email referring them to the thread where you have done so.

I dispute the accuracy of some of the information you have posted - I have done that without being abusive.

Final word on this PMS from me - GROW UP!

DJB:You have the nerve to dispute the accuracy of some of the information posted.I think your the one who needs to grow up.It is obvious that you do not like someone who gives an opinion and before you send any other post's check some of your information it's not exactly 100%.As I said in an earlier thread I have made a complaint as well so as far as im concerned we are now equal.If you want this "battle" to carry on then so be it other than that either "put up" or "shut up"

davidjohnbutton
19-03-2006, 23:18 PM
What, and ONLY what I have complained about is your use of foul language on the forum directed at me and that you called me a "dodgy landlord" on an open forum - an act of libel!