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View Full Version : Tenant bullied me into contract extension and now wont leave



kal1979
08-04-2010, 11:23 AM
Hi - I am new to this site and an inexperienced landlord

I let my house out for 6 months through a local agent (introduction only) he assured me that he was familiar with the guarantor and there will be no problems. I sent the deposit to the DPS scheme and all was well. I never actually met the person I had the contract with but I noticed he was never there when I went to collect the rent but the house was deteriorating fast (ruined carpets, kitchen in disrepair). at the end of the 5th month I collected the rent and provided notice to the boy who was always there. I got a call from the tenant claiming that he signed a 12 month contract and to meet with him and the agent. I went to meet him and the agent didnt show up but the guarantor did. The guarantor was quite intimidating at first (telling me he has been in jail and that he knows bad people etc) then being really friendly and reassuring they requested that I give the T more time to find another place.
So I met with them again and agreed to a 4 month contract (maximum time frame to find another place). At this point the guarantor suggested that the deposit takes many weeks to be returned and agreed that I take the deposit back (they provided the password) so I did (which now sounds like a mistake)also saying the T will go ASAP.
The first month went by but then the second month I was not given the full rent (less 20%). I could not get hold of the tenant as he kept changing his number and went to the property a few times and kept being told it will be transfered to me which never happened.
I had a brief conversation with the T who told me that he will not pay the last months rent and that I should take this from the deposit
The last time I went to the property an old lady said that the T has gone to the shops and will return shortly, as I was waiting outside when I got a call from the guarantor telling me to basically go away and to call him before ever going to the property again.
It is now approaching the last month of the contract and neither the tenant or guarantor are confirming the date the T will vacate (as the 4 months extra given should have been the maximum time)
Having looked at the contracts the signatures are different and the signature on the credit check document is a PP signature so this too is different. Looking at the ID of the person whose name is on the contract (passport) he looks nothing like the T who claims it is him but appearance has changed due to illness)
I dont know what to do now because I feel threatened by the guarantor
The tenant clearly does not want to speak/ see me
The condition of the house is quite poor now
I need possesion of the property in order to complete the application for my little girl to get admission to the school for which I will need to provide proof of living there (i.e. council tax proof)
And I think I made a mistake by taking back the deposit

Please help as this is causing me sleepless nights and alot of stress!

Charles19
08-04-2010, 11:59 AM
I need possesion of the property in order to complete the application for my little girl to get admission to the school for which I will need to provide proof of living there (i.e. council tax proof)
And I think I made a mistake by taking back the deposit



My first comment is that this school issue (illegal con) you want to operate is simply not on and you lose my sympathy here right off. We were recently unable to get our child into the first/best school we wanted and accepted it. Far too much of this skulduggery goes on with second 'rented' homes.

I canot comment on anything else now as I am too cross. Except to say you have a real nightmare up and running and it will be like this for some considerable time in my view ... and may get worse. Seek help with the law and spend out for a good lawyer asap.
Chas.

justaboutsane
08-04-2010, 12:11 PM
My first comment is that this school issue (illegal con) you want to operate is simply not on and you lose my sympathy here right off. We were recently unable to get our child into the first/best school we wanted and accepted it. Far too much of this skulduggery goes on with second 'rented' homes.

I canot comment on anything else now as I am too cross. Except to say you have a real nightmare up and running and it will be like this for some considerable time in my view ... and may get worse. Seek help with the law and spend out for a good lawyer asap.
Chas.

I second this... You will be found out schools are cracking down on this scam.

Interlaken
08-04-2010, 12:16 PM
I am inclined to agree with Charles on your reason for wanting the house back but it seems that you are going to suffer plenty by return.

You should not have taken the deposit back and have sunk to the depths of your strange tenant and guarantor. With no protected deposit you cannot issue a section 21 to remove the tenant and so are a bit stuffed really. I think I would take specialist legal advice on this one.

kal1979
08-04-2010, 13:16 PM
it is not a scam, I genuinly want to move into the house now, I did not buy to let, I have been living at my parents house with my family so the rent can help with the mortgage and we can save.
The reason we bought the house was that there is a good primary school within walking distance and this will be the first year that my child goes to school after nursery this. Big conslusion you are jumping to

westminster
08-04-2010, 13:36 PM
It is now approaching the last month of the contract and neither the tenant or guarantor are confirming the date the T will vacate (as the 4 months extra given should have been the maximum time)
Having looked at the contracts the signatures are different and the signature on the credit check document is a PP signature so this too is different. Looking at the ID of the person whose name is on the contract (passport) he looks nothing like the T who claims it is him but appearance has changed due to illness)
It doesn't matter who is living there, or discrepancies in signatures, the tenant is the person named on the tenancy agreement and you must follow the legal procedure to regain possession against that name.

Firstly, serve a s.21 notice, then, if the T doesn't leave, follow up with possession proceedings. (BTW although it was stupid to return the deposit, as it has been returned, there is no longer a deposit so this won't invalidate the s.21 notice - assuming you have proof the deposit was returned).

It is reasonably easy to DIY, however, as you seem pretty clueless, and the T appears to be very untrustworthy and relying on your naivety, I would suggest you either seek legal advice from a specialist landlord & tenant solicitor, or join up with http://www.landlordlaw.co.uk/
They can either seek possession on your behalf or you can DIY with their help.

kal1979
08-04-2010, 14:26 PM
Thank you Westminister
when I say the deposit was returned, I mean it was returned to me, so I am holding this money, will that make a difference to the s. 21 notice?

jeffrey
08-04-2010, 14:30 PM
when I say the deposit was returned, I mean it was returned to me, so I am holding this money, will that make a difference to the s. 21 notice?
Yes. If L holds unprotected a deposit that is required to be protected, s.21 Notice procedures cannot be used.

kal1979
08-04-2010, 14:37 PM
can I re- place the deposit into DPS and then issue a s. 21? it has been less than 3 months since I received the deposit back

westminster
08-04-2010, 14:47 PM
Thank you Westminister
when I say the deposit was returned, I mean it was returned to me, so I am holding this money, will that make a difference to the s. 21 notice?
Yes, you'll have to protect it again and send T the prescribed information before you can serve the s.21.

It is essential to use the DPS. http://www.depositprotection.com/
The other schemes won't let you protect a deposit mid-tenancy, but the DPS will, and there is no risk of a claim for non-compliance succeeding due to a recent high court case (I won't go into why, just trust me on this).

And here's the prescribed information template
https://www.depositprotection.com/public/documentlibrary/agentinfo.aspx

Also essential to keep a copy of the prescribed information for your own records, and to get proof of posting to the tenant (a free certificate of posting is sufficient evidence, and has the advantage of the T not being able to refuse to accept delivery).

You see, what you may have on your hands is what is called a 'professional' tenant - one who knows and exploits the law and naive landlords, so you need to be careful to do everything by the book. It's quite possible T/guarantor deliberately persuaded you to unprotect the deposit knowing full well that you couldn't serve a s.21 notice with the deposit unprotected.

In your first post it sounds as if you are saying you've entered the property without the T's knowledge or consent (because you describe its condition as deteriorating and the T not there). This is highly inadvisable. If you want to inspect, get the T's permission first, in writing, and take a witness with you, to protect you against any false accusations of harassment.

Also read up on the landlord's repairing obligations.
http://www.letlink.co.uk/letting-factsheets/factsheets/factsheet-11-landlords-repairing-obligations.html

kal1979
08-04-2010, 15:22 PM
I am completing the form now and will transfer the deposit back to DPS today, the tenancy expires on the 17th of May is that the date I should use on the s.21? even though he has underpaid the rent to 17th April and indicated he has no intention of paying the rent for the last month?

Also do I need his permission/ password to get the deposit back when he doesnt pay the rent?

Thank you so much for the detailed info. Westminister

kal1979
08-04-2010, 16:10 PM
i didnt enter the property without the T's knowledge, it was when collecting rent, getting the boiler fixed, using the loo when I noticed the condition

kal1979
08-04-2010, 16:47 PM
any idea where I can get a s. 21 notice?

jeffrey
08-04-2010, 16:49 PM
any idea where I can get a s. 21 notice?

Most forms are available here at LZ. Click on "Agreements" at the top of the screen, then go down to "Rent arrears and eviction".

westminster
08-04-2010, 16:56 PM
I am completing the form now and will transfer the deposit back to DPS today, the tenancy expires on the 17th of May is that the date I should use on the s.21? even though he has underpaid the rent to 17th April and indicated he has no intention of paying the rent for the last month?
The section 21(1)(b) notice (this being the one to serve during the fixed term) must give T at least two months' notice, so 17th May is too soon. Assuming you post the prescribed information tomorrow (first class/free certificate of posting/keep copy), leave at least a day in between before posting the notice. Because the notice isn't valid before the T has the prescribed info.

And, for example, if you posted the notice on Monday 12th April, allow a couple of days for posting, as the notice is deemed served at the delivery point, not when you post it.

So, in this example, the date of the notice would be 12th April 2010 and posted on that day first class with a free certificate of posting (again, keep copy notice for your records), but you assume it's served on 14th (or even 15th April); exactly two months from this is 13th/14th June, but better to err on the side of caution so if posted on Monday I'd make the notice expire after 15th June (i.e. after midnight on 15th June). On 16th June you could then start proceedings for possession.

See
http://www.letlink.co.uk/letting-factsheets/factsheets/factsheet-21-section-21-notice-requiring-possession-of-an-assured-shorthold-tenancy.html
Form here
http://www.letlink.co.uk/GeneralInfo/General_possession/S21_1_B.pdf

BTW don't hand-deliver the notice unless you have a witness present (who will need to complete a form, I believe, verifying delivery - hence, easier to just get a free certificate of posting).


Also do I need his permission/ password to get the deposit back when he doesnt pay the rent?
No, you can start a dispute with the DPS or make a 'Single Claim'
https://www.depositprotection.com/Public/FAQs.aspx?section=SingleClaim#Q8


Thank you so much for the detailed info. Westminister
You're welcome.

westminster
08-04-2010, 16:58 PM
Most forms are available here at LZ.Yes, except some people (including me) don't seem to be able to get them to open.

westminster
08-04-2010, 17:00 PM
Also do I need his permission/ password to get the deposit back when he doesnt pay the rent?
P.s. and you'll have to wait for the end of the tenancy to raise the dispute.

kal1979
08-04-2010, 21:13 PM
I have just read through the SHT agreement and noticed the last page is actually a section 21(1)(b) notice which was signed by the tenant at the time we signed the (extra) four months contract.. Is this applicable or will I have to issue a new one?

The house was bought for the intention to live in it but financial reasons put me in a position to let it out until we were secure enough to move in which is what we now want to do. Do the same rules with regard to the deposit still apply given that I am not a career landlord? i.e. will the courts take a different view?

The reason I am asking this I guess is that deep down I am hoping that it is a case of the tenant just not repsonding due to other reasons than to stay in the house for free for a few months and that he will go by the end of the contract. If I start issuing him with notices and deposit papers then I might swing his mind to not leave perhaps? I think I know the answer to this; 'play it by the book to be safe'

I gues I just want to try to avoid months of waiting and court etc as I understand it can take upto 6 months in total

jeffrey
08-04-2010, 21:19 PM
What's an SHT Agreement? Is this property in England & Wales, please?

kal1979
08-04-2010, 21:34 PM
sorry I meant Assured Shorthold Tenancy

jeffrey
08-04-2010, 21:43 PM
I have just read through the AST agreement and noticed the last page is actually a section 21(1)(b) notice which was signed by the tenant at the time we signed the (extra) four months contract.. Is this applicable or will I have to issue a new one?
But was the s.21 Notice provably served after the AST began? If not, it's invalid in any event.

kal1979
08-04-2010, 22:04 PM
the s. 21 was served on the day the tenancy started with the contract

jeffrey
08-04-2010, 22:13 PM
Yes, but 'on the same day' inevitably causes problems- the more so as the Notice is part of the Agreement!
You'll say that it was served after the Tenancy started.
T'll say that it wasn't, as it's the last page of the Agreement.

thevaliant
08-04-2010, 23:06 PM
Yes, but 'on the same day' inevitably causes problems- the more so as the Notice is part of the Agreement!
You'll say that it was served after the Tenancy started.
T'll say that it wasn't, as it's the last page of the Agreement.

Isn't the fact that the deposit is now unprotected invalidate the S21 anyway?

(Interesting point- If a valid S21 is served, but then deposit unprotected, is the S21 still valid?)

jeffrey
08-04-2010, 23:12 PM
No. If the s.21 Notice was valid when served, nothing in s.215 of the 2004 Act affects it retroactively. The s.215 sanction merely bars L from giving a Notice when a protectable deposit was not protected (or when initial scheme requirements remained unsatisfied), rather than from relying on an already-served Notice.

westminster
08-04-2010, 23:28 PM
I have just read through the SHT agreement and noticed the last page is actually a section 21(1)(b) notice which was signed by the tenant at the time we signed the (extra) four months contract.. Is this applicable or will I have to issue a new one?
Unfortunately, as Jeffrey says, the s.21 must be served after the tenancy agreement started, and you can't prove it was.


The house was bought for the intention to live in it but financial reasons put me in a position to let it out until we were secure enough to move in which is what we now want to do. Do the same rules with regard to the deposit still apply given that I am not a career landlord? i.e. will the courts take a different view?
The same laws apply to all landlords whether amateur or not. So, no, the courts won't take a different view.


The reason I am asking this I guess is that deep down I am hoping that it is a case of the tenant just not repsonding due to other reasons than to stay in the house for free for a few months and that he will go by the end of the contract. If I start issuing him with notices and deposit papers then I might swing his mind to not leave perhaps? I think I know the answer to this; 'play it by the book to be safe'

I gues I just want to try to avoid months of waiting and court etc as I understand it can take upto 6 months in total
There is no avoiding it. You must follow the legal procedure (but a court hearing isn't necessary if you're using the accelerated procedure, it's all done on paper). If you don't issue any notice or protect the deposit or start possession proceedings, it's far more likely to encourage a 'bad' tenant to stay put - time to wake up.

And there is zero excuse or reason for not protecting the deposit - you're legally obliged to, and if you don't you're exposed to a non-compliance claim and can never serve a s.21 notice - so it's plain stupid not to.

kal1979
09-04-2010, 10:32 AM
' Quote:
Originally Posted by kal1979
I have just read through the SHT agreement and noticed the last page is actually a section 21(1)(b) notice which was signed by the tenant at the time we signed the (extra) four months contract.. Is this applicable or will I have to issue a new one?

Unfortunately, as Jeffrey says, the s.21 must be served after the tenancy agreement started, and you can't prove it was. '

The s.21 was signed on the day the agreement started and was signed by both the T and I whilst the contract was signed by both of us plus my witness and the guarantor. Is it part of the rules that state I have to date the s.21 at least 24 hours after the agreement?

I am in the process of transferring the funds to DPS now but just want to be clear on if the s.21 in place is definately not valid.. then as you siggested I'll wait until mid next week to send a new s.21 if I have to (unfortunately giving the T an extra month before starting proceeding

jeffrey
09-04-2010, 10:48 AM
The s.21 was signed on the day the agreement started and was signed by both the T and I whilst the contract was signed by both of us plus my witness and the guarantor. Is it part of the rules that state I have to date the s.21 at least 24 hours after the agreement?
Not as such, no, but L cannot serve a s.21 Notice until the AST has begun- so it's a question of proving the sequence of events.

kal1979
09-04-2010, 10:59 AM
The pages of the AST agreement are numbered and the last page is the s.21 is that not proof that the s.21 was served/ signed after the contract?
What else could prove the notice (which was served with the contract) was served after the contract was signed/ the tenancy began? perhaps a statement from my witness?

jeffrey
09-04-2010, 11:21 AM
Actually, it points to the opposite: that the Notice is part of the AST and therefore not subsequent to it.

kal1979
09-04-2010, 11:34 AM
ok, so I will have to serve a new notice next week once I have sent the 'Prescribed information relating to tenancy deposits' today. This will make sure everything is in order for if and when I start proceedings

Thank you for help and assistance, it is much appreciated