View Full Version : Possession order - absent tenant
03-11-2009, 00:05 AM
I'm a newbie private LL. I rent out a basement flat in the house where I live (but a self-contained flat, so I don't think I'm a resident LL). 6mth AST from 26-1-09, so now periodic. Ts are a foreign student and his girlfriend. Both Ts vanished early September (based on own knowledge, as I can hear them when they're around, as well as see through the windows) and stopped paying rent. Now 2 mths in arrears. But all their stuff remains in the flat, and mail for them is still arriving, including bank statements and the like (this I know because it is often put through my door by mistake).
I suspect T has gone back home, and either decided to stay or run into trouble with his immigration status and not been able to return. My first newbie mistake was I didn't confirm immigration status or student enrolment, and as there was never any sign of him studying, I suspect he may have been an overstayer. My second mistake was that I didn't do a proper application form to get alternative contact details. I have an email address and mobile number, but the phone is off and he's not replying to any messages.
From other posts here on abandonment, it looks like I'm on weak ground to treat the flat as abandoned, unless I hear something explicit from them. So, I guess I'll give them a section 8 notice and start a PCOL in 14 days.
(1) Given that I know for certain they aren't there, is putting the documents through the door sufficient for valid service of the notice?
(2) Assuming T doesn't reappear or make contact, how far will I have to go through the s.8 proceedings? Can I repossess the flat on the basis of a possession order alone, or do I have to get a warrant and bailiff? I'm thinking that, with a possession order in hand, the lease will be terminated, and if nobody has lived there for months then re-entering the flat wouldn't constitute an eviction. Seems bizarre to get the bailiff out just to give him the spare key to open the door. What do you think?
03-11-2009, 08:05 AM
(1) Given that I know for certain they aren't there, is putting the documents through the door sufficient for valid service of the notice?Yes, as long as you have an independent witness sign a statement stating that notice has been served.
Serve s.8 g8, 10, 11.
Now 2 mths in arrears.Assuming rent paid monthly, for s.8 g8, 2 months rent needs to be 'owed'. g8 is for rent due and give's LL mandatory grounds for possession.
Serve s.21 as a backup (for mandatory possession, not rent due).
(2) Assuming T doesn't reappear or make contact, how far will I have to go through the s.8 proceedings?You will need a Court Order & Bailiffs, or risk prosecution for illegal eviction.
03-11-2009, 08:28 AM
Is the flat a conversion from what used to be part of a house or was it built as & always a separate flat??
If a conversion I recall being advised on a semi-legal course that as a "resident Landlord" the tenant doesn't have the usual AST rights..
Result - You are an occupier with basic protection
You are likely to be an occupier with basic protection. This means that you have few rights, which may make it difficult for you to enforce any other tenancy rights, such as getting repairs done. However, your landlord has to follow the correct procedure if they want to evict you.
See the page on occupiers with basic protection for more information and contact a local advice centre if your landlord tries to evict you without following the correct procedure - use our directory to find one.
- But still need court order.
03-11-2009, 08:36 AM
Thanks for that. On Q2, I'm sure that's sound advice, but just for the sake of argument - the Protection from Eviction Law protects a "residential occupier". There must be an argument to be made that someone who has been out of the property for months, and no longer has a valid lease due to a possession order, is no longer a residential occupier.
But you're right, of course, I'm not going to hazard a criminal record over it.
03-11-2009, 08:47 AM
Lodger - interesting point. Yes, it's a converted basement, but with own entrance. That would seem to imply that it's not an AST at all (though it says so at the top of the page), but a common law tenancy. However, as you say, that doesn't help me a great deal. We don't share any facilities, so I can't turf him out as though he were, well, a Lodger!
03-11-2009, 09:14 AM
Aye: Just because something says it is an "AST" or a "Lodger's agreement" or whatever doesn't change what a court might find it to be...
If the Tenant realises what is going on he might challenge you for using the wrong forms, but as he's gorn you are probably safe...
03-11-2009, 09:32 AM
I would be deeply impressed if my tenant picked up on that!
03-11-2009, 09:47 AM
Best way to serve notices is with a certificate of posting (free) from a post office. No point using recorded delivery as it proves it hasn't been delivered... Somebody else said two CoPs, on two different days from two different post offices. No judge would believe both had been lost in post...
I believe your “tenant” is an occupier with basic protection and not an AST. The property is not a purpose built block of flats but a conversion and as you continue to live in one part of the building and he in the other he cannot be an AST.
However, even though he has basic protection he is still entitled to written notice to quit if you want him out, even though he is out! The notice period must be at least four weeks, or equivalent to the period between rent, the notice to quit must expire on either the first day or the last day of a period of the tenancy.
The notice to quit must identify the premises that are the subject of the notice, and must be given either by you, the landlord or the landlord's agent. The notice must also comply with the Notices to Quit (Prescribed Information) Regulations 1986. The regulations state that the notice must include the following information:
• 'If the tenant or licensee does not leave the dwelling, the landlord or licensor must get an order for possession from the court before the tenant or licensee can lawfully be evicted. The landlord or licensor cannot apply for such an order before the notice to quit or notice to determine has run out.'
• 'A tenant or licensee who does not know if [s/]he has any rights to remain in possession after a notice to quit or a notice to determine runs out can obtain advice from a solicitor. Help with all or part of the cost of legal advice and assistance may be available under the Legal Aid Scheme. [S/]He should also be able to obtain information from Citizens Advice, another advice centre or a rent officer.”
If this information is not included, the notice will be invalid. Once the notice to quit has expired, you must apply to court for an order for possession, if the occupier has not left. The court should strictly construe a notice to quit. If it is invalid, it cannot be amended. However, an occupier can accept a shorter notice than is required under the law. Nevertheless, it is for a landlord to prove when seeking possession that a valid notice to quit has been served.
Hope this helps.
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