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View Full Version : I am due in Court shortly...advice very much appreciated.



Alex1934
26-02-2010, 21:39 PM
I am due in Court shortly to gain (hopefully) possession of my house which has a tenant there who stopped paying rent 4 months ago. All relevant Sections 21 and 8 have been sent in accordance with the law, and I have a Court date pending.

My question is this. The tenant apparently lost his job, and applied for council housing in January. The council sent out forms on which I obviously had to state tenant was in arrears, at that time 2 months. Having spoken to the council, they told me they would not offer this person a council house, but temporary accommodation to get him back on his feet. They assured me this would not affect my case.

Then they began paying his rent directly to me. This was backdated to the
21st December....at first I was delighted, although the rent the council pay is £80 per month short of the actual rent itself, it is better than nothing.

But I am not so happy now, reading through here, to find that a possession order will probably not be granted to me, to get my house back, because of the council's payments making this tenant only 6 weeks in arrears and not the 8 weeks needed for a judge to give me my property back!

I have to ask myself why have the council done this to me? I have prospective tenants eager to rent at another £50 per month more than this man was paying....I have difficulty paying the mortgage whilst not receiving rent, and even now I have rent coming in form the council, £80 short does make a difference.

So, can any of you kind and knowledgeable people tell me where I am likely to stand now?

If, and it seems likely, the judge throws this in favour of the tenant, I have been advised to issue a S21 immediately and get him out in 2 months. Meanwhile I assume the council will continue to pay the rent.

One way or another, again from advice I have had, the tenant cannot stay there indefinately, at some point he will have to leave, and I simply would be most grateful to hear your advice about this.

Many thanks.

westminster
26-02-2010, 21:49 PM
I am due in Court shortly to gain (hopefully) possession of my house which has a tenant there who stopped paying rent 4 months ago. All relevant Sections 21 and 8 have been sent in accordance with the law, and I have a Court date pending.....

......If, and it seems likely, the judge throws this in favour of the tenant, I have been advised to issue a S21 immediately and get him out in 2 months. Meanwhile I assume the council will continue to pay the rent.

One way or another, again from advice I have had, the tenant cannot stay there indefinately, at some point he will have to leave, and I simply would be most grateful to hear your advice about this.

So, have you served a s.21 or not and when does it/fixed term expire? Is it an AST and, if T paid a deposit, did you protect it in a scheme?

Assuming it is an assured shorthold tenancy in England/Wales, and any protectable deposit is protected, then yes, you can eventually regain possession and T cannot remain in occupation indefinitely.

Alex1934
26-02-2010, 22:37 PM
So, have you served a s.21 or not and when does it/fixed term expire? Is it an AST and, if T paid a deposit, did you protect it in a scheme?

Assuming it is an assured shorthold tenancy in England/Wales, and any protectable deposit is protected, then yes, you can eventually regain possession and T cannot remain in occupation indefinitely.


Yes indeed S21 expires 5th March. Tentant is on periodic fixed term expired in October 2009. It WAS an AST and T paid deposit which is with the DPS.

Thank you.

mind the gap
26-02-2010, 23:24 PM
Yes - on 5th March if T has not vacated you can apply for a court order for possession and assuming s21 is correctly served you will get a mandatory possession order.

The council were not paying your T's rent just to make life difficult for you, by the way :rolleyes: At least he will not owe as much when he finally does go - and they are surely doing you a favour since the chances of him paying you himself seem remote, don't they?

Alex1934
26-02-2010, 23:47 PM
Yes - on 5th March if T has not vacated you can apply for a court order for possession and assuming s21 is correctly served you will get a mandatory possession order.

The council were not paying your T's rent just to make life difficult for you, by the way :rolleyes: At least he will not owe as much when he finally does go - and they are surely doing you a favour since the chances of him paying you himself seem remote, don't they?

Hi, thanks for your reply.

There is an S8 out which the Court action is on apparently. I don't understand how I can also apply for eviction on the S21 if I have a Court date for the S8?

I have read a lot on here and it seems that if the tenant owes LESS than 8 weeks rent then he cannot be evicted? As it stands, due to he council's payments, he now only owes 6 weeks rent, so, in this instance, will the judge go in his favour and not mine, because it is less than 8 weeks owed?

Thank you

P.Pilcher
27-02-2010, 00:12 AM
A section 8 action and a section 21 action are two entirely different legal processes and do not affect each other. You would appear to have a court date set for your section 8 action and to be succesful, you will need to satisfy the judge that your tenant is two months overdue with his rent. Although the council are paying him housing benefit, if his arrears total in excess of a whole month unpaid (assuming that your AST required him to pay his rent monthly in advance). You should be successful, which would appear to be the case here - unless he finds some money to reduce his arrears to be below a month by the time the case is heard.
A section 21 action is a "no fault" action. The tenant must be given a minimum of two months notice, which in your case should end on a rent day. (The day in the month on which rent is due.) You cannot apply to the court for a section 21 action to commence until this notice period has expired in your case the 5th. March. I hope that your section 21 notice was correctly worded, particularly using the expression for expiry: "after 4th. March".
Section 21 actions are often started alongside section 8 ones because the notce period is much longer, but possession orders under section 21 are easier to obtain. Thus if the section 8 one is rejected by the judge, the section 21 notice period is already running which reduces the overall time to get the necessary possession order.

P.P.

davidjohnbutton
27-02-2010, 00:47 AM
Also, if you served your S8 on grounds 10 and 11 as well as ground 8, you can ask the judge to make a suspended possession order so that if the tenant goes into arrears again, you can use the same summons to evict (how exactly will depend on the wording the judge uses in the order)

Another option is to ask for the hearing to be vacated and the matter adjourned for 12 months with liberty to restore. Then if the tenant again goes into 2 months or more arrears, you can restore the hearing and obtain a possession order provided there are two or more months worth unpaid at the hearing date.

Ensure that one way or another, you are awarded the court fee unless the tenant has voluntarily already paid it.

havensRus
27-02-2010, 11:04 AM
Then they began paying his rent directly to me. This was backdated to the
21st December....at first I was delighted, although the rent the council pay is £80 per month short of the actual rent itself, it is better than nothing.

I have to ask myself why have the council done this to me?

The Council have done what is right by paying the housing benefit to you directly due to the accrued arrears.

If you'd asked for direct payment and they'd refused or come up with the myriad of excuses as to why they couldn't pay to you, you'd be wondering why they were doing it to you and causing you hardship etc. etc. .....

Its refreshingly ironic... if there's such an expression, to hear a LL bemoan the fact that the LHA was being paid to them directly. There are some LLs that will gladly switch places with you on that basis.

davidjohnbutton has given you very good advice ... use it.

mind the gap
27-02-2010, 12:06 PM
The Council have done what is right by paying the housing benefit to you directly due to the accrued arrears.

If you'd asked for direct payment and they'd refused or come up with the myriad of excuses as to why they couldn't pay to you, you'd be wondering why they were doing it to you and causing you hardship etc. etc. .....

Its refreshingly ironic... if there's such an expression, to hear a LL bemoan the fact that the LHA was being paid to them directly. There are some LLs that will gladly switch places with you on that basis.

davidjohnbutton has given you very good advice ... use it.
I agree absolutely. It is bizarre to hear someone complain that they are being paid, isn't it?

Alex1934
27-02-2010, 18:11 PM
Thank you for your good advice everyone, and to you davidjohnbutton in particular.

It may seem bizarre, but I am far from complaining about the money being paid to me. My concern was simply that having scrolled thorugh here for hours, I was under the impression the judge would not make an order for eviction in my favour if the rent was less than 8 weeks overdue, and, since the Council have, by their fantastic action, reduced the rent owing to only 6 weeks, I was worried this would affect the judges's decision.

As we all know, being a landlord is not a lot of fun in cases like this. I am lucky that in 9 years with 6 properties I have only come across this situation once. I have indeed had bad tenants, who have left houses in an awful state costing a lot to repair, and several who have done a bunk, some also who have not paid up, but left well before any Court case. This is my first Court case, and I must admit to having had a lot of conflicting advice and information. So I was not sure what to expect to be honest.

Thank you very much for your help everyone.

davidjohnbutton
27-02-2010, 18:48 PM
One final piece of advice if I may.

The day before the hearing, make up a folder containing the following in this order.

1 Schedule of rent due and paid with dates and arrears figures carried forward with the latest arrear as the first page of the bundle. (including payments received from both tenants and HB office)
2 The Rent agreement
3 The S8 Notice you are relying on
4 Any copies of letters you have sent to tenants about the arrears.

You then need to type on an outer page.

In the Whatever County Court

Case Number 12345678

Between

Landlords name (Claimant)

and

Tenants name(s) (Defendant(s)

CLAIMANT'S BUNDLE FOR USE AT THE HEARING ON (date)


Staple the lot together x 3* in the top left hand corner only. (* 4 if there are 2 defendants - so thats one for you, one for each defendant and one for judge)

This looks a little more professional and the judge is more likely to take your figures on the rent arrears total than if you turn up with it written on scraps of paper. When you get into the room, identify yourself and give a copy of the bundle to the judge with the comment "May I give you this please Sir/Ma'am - its a copy of the defendants rent account, contract and S8 notice"

Expect the other side to either:-

1 Not turn up
2. Turn up unrepresented and dispute the figures or
3 Turn up with a local housing aid bod or solicitor.

No matter what is chucked at you, keep it calm and professional and you will win.

Alex1934
27-02-2010, 19:13 PM
Thank you for your excellent advice which I have printed out!

Congratulations on a forum which is most helpful, courteous and enlightening.

mind the gap
27-02-2010, 19:25 PM
Thank you for your excellent advice which I have printed out!

Congratulations on a forum which is most helpful, courteous and enlightening.
Good luck with your claim - please post back and let us know how you get on with it.

Always Problems
28-02-2010, 08:53 AM
I would have thought that with 6 properties over a period of 9 years that it would have been inevitable that one day you would end up taking a tenant to court. But I notice that you can get "Landlords Insurance" which would presumably cover your legal fees, or is it too expensive.

Ericthelobster
28-02-2010, 13:35 PM
No matter what is chucked at you, keep it calm and professional and you will win.I'd certainly echo DJB's advice, from my own (much more limited than his) court experiences.

I've had the impression that at the start of the hearings (ie, with me representing myself) that the judges had been thinking 'Oh God, here we go, another d-i-y job' but have then been favourably impressed with the bundle/presentation - which has been achieved entirely from the sterling advice provided by this forum, like the above - and I ended up with a good outcome in all the cases.

Alex1934
28-02-2010, 18:28 PM
I will certainly let you know the outcome !!!

Yes, I do have Landlord's Insurance, and this is paying for the costs. I do think it is worth the extra money, and pay it happily as I knew I would one day have to face this particular circumstance.

I would have got rent recovery also, as it was on my Policy, BUT, the letting agent, who found this tenant, did not do a full credit check on the tenant before we all signed up.

I was assured by them and have the letter that this was done.... but it was not done, and apparently it was due to an 'oversight' by someone who left the company. I handed this over to my solicitor......who happens to be a close family member (lucky)! and she is persuing them for negligence. Tis particular company found me 4 tenants in all, only one of whom was and is really kosher. 2 bunked...one left the house immaculate and wrote telling me to keep the Deposit, which of course meant a trip to the solicitor for an Affidavit, and then waiting a long time for the DPS to process all this. But at least I had the money in the end. The other is just the same old story but at least it didn't take me long to re-rent to a very nice couple.

And so on! I expect you have heard it all before with knobs on!

Thanks again for your outstanding help and advice.

havensRus
02-03-2010, 20:13 PM
Alex1934, check out an example of a Witness bundle in post #30 of this thread (http://www.landlordzone.co.uk/forums/showthread.php?t=17426&highlight=filling+n119&page=3). Its what I use, and has stood me in good stead each an every time without fail.

Alex1934
02-03-2010, 23:02 PM
Brilliant, havensRus, many thanks. :)

Cipher
03-03-2010, 07:58 AM
I cant download or view the attachment it opens a new empty tab, i have tried right click save link as but its trying to download a .gif file
Any ideas - do I need to a have number of posts before i can view attachments?

havensRus
03-03-2010, 13:19 PM
I cant download or view the attachment it opens a new empty tab, i have tried right click save link as but its trying to download a .gif file
Any ideas - do I need to a have number of posts before i can view attachments?

there's no threshold of #posts required - AFAIK.

I've just tried downloading myself, and it's fine. I use Firefox, so it may be different if you use IE or other browser. Right click on file, select "save link as" (or save file as"), and it does come up with the selection window and "Save type as" Gif image by default. However, if you select file type as "All files" instead of gif, you should be able to save as the original pdf file.

HTH. If not PM me and I'll email you directly.

Alex1934
10-03-2010, 23:08 PM
Good evening. Just following up on the Court case this week. The tenant has been given 14 days to leave, which is brilliant news.

My experience was rather nerve wracking, as I had to wait for some time before I was called with my advocate into Chambers, but once there, I was greeted, by the Judge, then he asked me to be seated. My advocate spoke to the Judge, she answered several questions very quickly, and he made the Order for Possession there and then.

It is a relief and the process was very enlightening and also very fast.

I took in a folder exactly as advised on here, (thank you again) and the advocate was the only person who had sight of it, the Judge already had most of the information in front of him. But I was very pleased I had spent the time and effort to put it all together.

I feel justice has been done, and I can now get my house back and move on.

Thank you again for all your help.

westminster
11-03-2010, 00:42 AM
Happy news and justice has been done. :)

davidjohnbutton
11-03-2010, 00:50 AM
I assume that this was plain sailing because the tenants didnt turn up to defend or squabble????

If they had, your folder of paperwork would have been required and would have been of immense help to the judge.

On day 15, if tenant still resident - get the Warrant of Possession ordered and I do hope all goes well and you get the property back quickly.