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View Full Version : whats the point of a tenancy agreement?



Mark1564
25-03-2010, 11:39 AM
Hi, I am a private landlord with the same problem a lot of people seem to have. I have an unmarried couple living in my house, they are going their separate ways. I sent them a letter 2 months before the end of the contract that as the fella wanted to leave I would like to terminate the contract on the natural end of its tenanacy the 1st May. I found new tenanats quickly and secured a deposit. I let the current tenants know and then they dropped the bomb shell. The lady has gone to the council to say she cant afford the tenancy and the council have kindly told her to put me through the legal ringer of posession so that her application for a council house is quicker. The fella realising he may have to keep paying the rent and my court bills has legged it with no forwarding address.

So if the AST ends on the 1st of May why cant I go in on the 1st of May put her stuff neatly outside and say goodbye. instead I have to give her two months notice which now takes me to the 1st June (How could I have given it any early they told me they wanted to leave) which means she can live in my house rent free and enjoy it until the baliff arrives. Meanwhile I loose my new tenants, pay the mortgage and court costs all of which will not be recoverable as she has no money. So why have a tenancy agreement at all, whats the point if any tenant can at the end of it say move me out then and pay for it!!!!!:mad: what would happen to me if I just booted her out and changed the locks?

jeffrey
25-03-2010, 11:43 AM
You answer your own question. The Agreement operates whilst it's in its term; at its end, L (= you) can obtain vacant possession. If T refuses to go, you can obtain a Court Order as long as you comply with the legal requirements. So what's wrong with that?

Mrs Mug
25-03-2010, 11:47 AM
what would happen to me if I just booted her out and changed the locks?

That would be classed as illegal eviction, and the police would let her straight back into your property.

Illegal eviction and harassment are criminal offences and the maximum penalty in a Crown Court is an unlimited fine and two years’ imprisonment.

Here's an example of the consequences for a landlord convicted of illegal eviction;

http://www.landlordzone.co.uk/forums/showthread.php?t=25168&highlight=uncle+tony

Mark1564
25-03-2010, 12:06 PM
You answer your own question. The Agreement operates whilst it's in its term; at its end, L (= you) can obtain vacant possession. If T refuses to go, you can obtain a Court Order as long as you comply with the legal requirements. So what's wrong with that?

Hi Jeffrey,

I am in the process of obtaining posession but in the mean time noone pays the rent and I wont be able to claim back my court costs off a soon to be council tenant. So I loose out. If at the end of every AST any tenant can force you to reposess your house, it could become very expensive. I feel frustrated that there is no real compensation for the landlord. And I do take the point of eviction so I wont go there.

Ann.C
25-03-2010, 12:15 PM
I fully sympathise as I am going through the same thing.

Just follow the process, send all paperwork twice using proof of posting (not recorded delivery as they don't sign for it) and preferably from two different post offices or at least a day apart.

If you don't follow it, it will come back and bite you on the a***, trust me.

I have had 'professional' tenants who have tried everything to stop their eviction but because I have followed the process to the law, they are now on their way and I am about to start getting their arrears through an attachment of earnings.

Good luck.

mind the gap
25-03-2010, 13:35 PM
Hi Jeffrey,

I am in the process of obtaining posession but in the mean time noone pays the rent and I wont be able to claim back my court costs off a soon to be council tenant. So I loose out. If at the end of every AST any tenant can force you to reposess your house, it could become very expensive. I feel frustrated that there is no real compensation for the landlord. And I do take the point of eviction so I wont go there.

For you, being a LL is presumably a business venture since you are clearly not doing it out of charity. Since it is a business, you might make money or you might lose it. Whether you make or lose money will depend to some extent on unpredictable factors (e.g. mortgage interest rates, tax law, how many students the govt encourage, etc), but largely on factors which you can know in advance and plan for.

One of these factors is the risk that Ts will default on rent, split up, trash your house, refuse to leave when you ask them to, etc. There are however things you can do to reduce the impact of these risks. One of them is to factor into your business plan a 'buffer zone' or insurance for void periods so you are not bankrupted by Ts defaulting, etc.

The other is to read up on the law relating to being a LL. If you come to the conclusion that the law is ridiculously unfair to LLs and you cannot be doing with it, then you can plan and pursue a different career for yourself.:)

HTH

Snorkerz
25-03-2010, 14:38 PM
Jeffrey, if Mr T is on the AST and has given written notice, or can be persuaded to by 1/4/10, would that terminate the tenancy agreement on 1/5/10? If so, could Mark1564 impose double rent under the "Distress for Rent Act 1737" (http://www.statutelaw.gov.uk/documents/1737/19/apgb/c19/18). This might make Mrs T think about finding a replacement home a little bit more quickly ;)

jeffrey
25-03-2010, 14:44 PM
Yes, I think so.
Sole tenant (or any one joint tenants) on periodic tenancy can terminate by at least one month's written Notice to L, expiring at a tenancy month end.

Mark1564
25-03-2010, 15:00 PM
Hi Snorkez and Jeffrey,

Thats very interesting. So to clarify. If I get 1 months written notice from Mr T to terminate the contract by the 1st of April then under the distress for rent Act 1737 I might be able to pursue double rent from the Mrs T. If I go down this route would this aid the section 21 process that I have started. or hinder it in the long run. Also if Mr T gives me notice how do I go about giving his deposit back with Mrs T still in the property?. Thanks for your info so far.

Mind the Gap. thanks what you say does make a lot of sense and has made me feel less frustrated.

Snorkerz
25-03-2010, 19:32 PM
Hi Snorkez and Jeffrey,

Thats very interesting. So to clarify. If I get 1 months written notice from Mr T to terminate the contract by the 1st of April then under the distress for rent Act 1737 I might be able to pursue double rent from the Mrs T. If I go down this route would this aid the section 21 process that I have started. or hinder it in the long run. Also if Mr T gives me notice how do I go about giving his deposit back with Mrs T still in the property?. Thanks for your info so far.

Mind the Gap. thanks what you say does make a lot of sense and has made me feel less frustrated.You are correct. It won't interfere with the s21 process - although if Mrs T isn't paying rent then you might be better looking at s8 as that will come with an order for missing rent (including the DfR rent from 1/5) It's cheaper too (google pcol). Have you served a section 21 notice yet? If not, s8 will be quicker too. If you have served a s21, you might want to let us know when it was posted/served, if it was a s21(1)(b) or a s21(4)(a), what the start and end dates of the tenancy were, and what expiry date (exactly) you wrote on the form

You won't be able to refund deposit to Mr T until the tenants (Mr & Mrs) give you the property back - if there is missing rent at that stage, then you would presumably make a claim against the deposit via the deposit scheme. Sadly, this means that by giving you notice Mr T would be liable for a portion of the DfR rent, but you might want to gloss over that ;)

I would suggest that as soon as you get the written notice, you write a formal letter to Mrs T advising her that if she stays beyond 1/5 than you will be charging double rent. Maybe she will find somewhere in April?

DfR is stil valid, despite being 273 years old, so let Mrs T's advisors chew on that one!

Kittaycat
25-03-2010, 20:21 PM
Hi, sorry to but in here but I used to work in the 'Homeless' section of council (some time ago so plse check it out - don't take me at my word) and basically they do run checks on whether someone is 'intentionally' homeless when they apply for housing. Not paying your rent is applicable as intentionally homeless unless you can prove that you couldn't ie losing a job. Sometimes splitting up from a partner may be a factor, but it depends. Often Housing or Homelessness depts will want a reference from the previous landlord (in this case yout) to clarify matters.

Therefore it would be an idea to sort this out with the current tenants. It may well be that the individual who wants rehousing needs to have the court order in place to 'prove' homelessness. Perhaps you could come to some sort of arrangement whereby you do what is necessary for her/him to get accepted as homeless or on the housing register PROVIDED they make a payment or whatever.

Only a suggestion ...

Mark1564
26-03-2010, 07:23 AM
Thanks Snorkez.

The soloictor who has sent out the section 21 has never heard of the DFR so thats worying to start with (can and should I really use this?) The solictor did send out a section 21(b) and a section 8 so thats goos, I can go either way. Start date of the tenancy is 1/11/09 to 30/04/10. section 21(b) served on the 22nd March seeking posession on the 31st May.

I take on board what kittaycat is saying and I am trying to wotk with my tenants. The problem I got is that the tenants in my house dropped the bombshell after I secured new tenants, so they are now homless. My tenants should have informed of their intentions before I found new tenants. They had two weeks to tell me. Though I understand that the council need a possession order to bump her up the list, I will do anything within the law to make this happen as fast as possible.

Ann.C
26-03-2010, 11:33 AM
Kittaycat is correct what she says about a Council viewing the tenant as making themselves intentionally homeless by not paying rent as that is what happened to my tenants. They failed to pay their rent and I issued the S.21 and S.8 forms and had a homeless officer on the phone to me saying that she was going to get my forms thrown out, the tenant would pay their rent etc etc.

However, 1 month later she had a totally different view of them and advised me that the Council would not be able to offer the tenant Council housing as they had to prove that they could pay their rent and as they had failed to pay any rent or anything towards the mounting arrears, they wouldn't be offering them any housing except maybe emergency accommodation as they claimed to have children now living with them.

Is your tenant not entitled to Housing Benefit now that she is by herself?

westminster
26-03-2010, 11:58 AM
So to clarify. If I get 1 months written notice from Mr T to terminate the contract by the 1st of April then under the distress for rent Act 1737 I might be able to pursue double rent from the Mrs T.

See this law report (http://www.independent.co.uk/arts-entertainment/friday-law-report-double-rent-only-due-from-trespasser-1083018.html); extract:

On the true construction of section 18 of the 1737 Act, the right to double rent only arose where (a) the tenant holding over after his own notice to quit was in fact a trespasser; and (b) the landlord had treated him as such. Reading the 1737 Act and the 1730 Act as a whole, including the preambles and recitals to the 1737 Act, it was entirely clear that the legislature was concerned only to compensate landlords for the potential loss of rent arising where a tenant held over against the landlord's insistence that he should comply with his own notice to quit.

And this link (http://blog.painsmith.co.uk/2009/11/22/tenants-notices-to-quit-holding-over-and-double-rent/); extract:


Where a tenant gives notice to quit and then does not in fact vacate the premises, staying for a few extra days the provisions of section 18 of the Distress for Rent Act 1737 come into play. This section states that to discourage tenants causing “great inconveniences … by … refusing to deliver up the possession when the landlord hath agreed with another tenant for the same” the landlord may seek double the sum normally charged in rent.

This can only occur where the tenant has given a valid notice to quit which the landlord accepts as a valid notice and where the landlord is, therefore treating the tenant as a trespasser while they hold over. In other words it can only apply where the landlord would have a right to seek possession through the Courts but is unable to do so because the tenant will not be remaining in the property for long enough to make it a practical option. The landlord may not seek double rent for a full period of the tenancy (as this would be inconsistent with treating the tenant as a trespasser) and must charge it on a daily basis. It should also be noted that failure to return keys promptly is not sufficient to engage this principle.

Mark1564
26-03-2010, 14:38 PM
I'm getting confused. If Mr T gives me notice and moves out leaving Miss T in the house living beyond the tenancy, because she hasnt given notice is she a trespasser and then liable for the DFR act? Also I do have right to seek posession and will have the time to seek it as she aint going anywhere until the council house her. So this bit may apply:

In other words it can only apply where the landlord would have a right to seek possession through the Courts but is unable to do so because the tenant will not be remaining in the property for long enough to make it a practical option