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Nancy
21-10-2010, 20:42 PM
Hi,
In 1998 I rented a property with an Assured Tenancy Agreement and in 2004 it was purchased and my son in law became the landlord. There was no official notification and no agreement. I paid the rent to him.

In 2008 my ex son in law now was awarded £20K from the divorce to be paid by Sept.30th. 2010 or my house would have to be sold. The CCJ stated that SHE was responsible for the mortgage. I sent her the rent each month as requested. She sent it to him as the mortgage payments were coming out of his bank account.

The last four months she has not done this due to personal circumstances.

I have now received a notice of eviction Sections 8,10 and 11 which end 8/11 and Section 21 which ends December 30th. She is also named on both although she is in Australia.

I offered to up the monthly rent to gradually pay off the arrears which I don't owe, she can't afford to. This was refused. I have proof of payments and proof of offer and refusal.

Where do I go from here?



Nancy

dc61
21-10-2010, 20:49 PM
sorry but I am confused - you are referring to "she" - who is "she"? What relevance does "she" have to anything when you state the house was purchased and your son in law became your landlord?

mind the gap
21-10-2010, 20:54 PM
sorry but I am confused - you are referring to "she" - who is "she"? What relevance does "she" have to anything when you state the house was purchased and your son in law became your landlord?

The context suggests that 'she' is OP's daughter.

mind the gap
21-10-2010, 21:02 PM
oh, that makes it a bit clearer then. thanks.

If I thought you were genuinely interested, instead of just keen to rack up posts, I would be pleased to have helped.

Snorkerz
21-10-2010, 21:41 PM
If (ex) son in law was the landlord, why did you send the rent to 'her'? Did you receive any instruction to do so, and if so, from whom?

mind the gap
21-10-2010, 21:50 PM
If (ex) son in law was the landlord, why did you send the rent to 'her'? Did you receive any instruction to do so, and if so, from whom?

I agree it's confusing, but I suspect the son-in-law was perhaps no longer the LL after his divorce, just paid the mortgage on the property on behalf of his ex-wife who was the LL?

Until OP clarifies, I'm not sure how much we can help.

Nancy
22-10-2010, 07:45 AM
sorry but I am confused - you are referring to "she" - who is "she"? What relevance does "she" have to anything when you state the house was purchased and your son in law became your landlord?

Oops! ........daughter


Nancy

Nancy
22-10-2010, 07:50 AM
If (ex) son in law was the landlord, why did you send the rent to 'her'? Did you receive any instruction to do so, and if so, from whom?

If my memory serves correctly this is what we assumed was the right thing to do as the court had made her responsible. He was in agreement.

Nancy
22-10-2010, 07:53 AM
I agree it's confusing, but I suspect the son-in-law was perhaps no longer the LL after his divorce, just paid the mortgage on the property on behalf of his ex-wife who was the LL?

Until OP clarifies, I'm not sure how much we can help.

Apologies. I've lived with this for so long I forget that no one else has! SIL was the landlord but the CCJ had made my daughter responsible for the mortgage.


Nancy

Snorkerz
22-10-2010, 08:33 AM
Okay, so SIL is the landlord, but you haven't been paying rent to him, you have decided to pay money to your daughter instead of paying rent to the landlord. Up until now you have been lucky that D has been paying SIL for you. Now, your landlod hasn't had the rent, so you need to sue D for the money you have paid to her for rent. Until you have official information from SIL, he remains the landlord.

Think of it this way - if you have a loan with Barclays, you can't just start paying HSBC.

As MTG says, it may be that a divorce settlement has changed things - but until someone officially tells you (as tenant) officially, then nothing changes.

If we assume that D is your landlord, the next question is, have you been provided with an address in England or Wales for the service of documents to D? The answer to that is obviously no - because your paperwork says that SIL is landlord. No rent is payable until such an address is provided. Once it is provided, then all unpaid rent becomes immediately due, but it does mean that the section 8 notice you have received is invalid because no rent was due at the time of service.

I also suspect that a section 21 notice served by D, before SIL has advised you that she is LL, would be invalid - but I'd wait for a more knowledgable member to comment. Again - HSBC can't reposess a property on a Barclays mortgage - same principle.

Nancy
22-10-2010, 10:01 AM
Okay, so SIL is the landlord, but you haven't been paying rent to him, you have decided to pay money to your daughter instead of paying rent to the landlord.

No I didn't decide. The decision was based on the CCJ making D responsible for the mortgage. Up until now you have been lucky that D has been paying SIL for you. Now, your landlod hasn't had the rent, so you need to sue D for the money you have paid to her for rent.

D in Australia Until you have official information from SIL, he remains the landlord.

Think of it this way - if you have a loan with Barclays, you can't just start paying HSBC.

As MTG says, it may be that a divorce settlement has changed things - but until someone officially tells you (as tenant) officially, then nothing changes.

If we assume that D is your landlord, the next question is, have you been provided with an address in England or Wales for the service of documents to D? The answer to that is obviously no - because your paperwork says that SIL is landlord. No rent is payable until such an address is provided. Once it is provided, then all unpaid rent becomes immediately due, but it does mean that the section 8 notice you have received is invalid because no rent was due at the time of service.

D NOT landlord. SIL on mortgage. No documents from anyone.
I also suspect that a section 21 notice served by D, before SIL has advised you that she is LL, would be invalid - but I'd wait for a more knowledgable member to comment. Again - HSBC can't reposess a property on a Barclays mortgage - same principle.

I think I'm more confused now than when I started . I don't know how else to say it. SIL on mortgage. CCJ made D responsible for mortgage. Rent went to her. Bank account statements prove that. She hasn't passed on the last three months.

Receive two notices of eviction one dated 22nd September second dated 19th October.

jeffrey
22-10-2010, 10:48 AM
How can a CCJ against one person make someone else legally liable for a mortgage?
The mortgagee (lender) would certainly not be bound, anyway!

Snorkerz
22-10-2010, 11:01 AM
The mortgage is irrelevant. Who owns the property? Is it still D & SIL on the deeds?

property mongrel
22-10-2010, 11:27 AM
Apologies for a long post, but I wanted to be clear on this situation.

In 2004 your Son In Law, SIL, purchased the property. You paid him rent, whether or not there was formal agreement this creates a tenancy with you as Tenant and him as Landlord. He has all the responsibilities of a LL. Was the property solely in his name, was your daughter’s name mentioned on the property deeds as owner?

So your son in law owns the property that you live in as of 2004 and he is your landlord.

2008, your daughter and son in law divorce. As part of the divorce settlement Daughter gets house but eX-Son-In-Law (XSIL) is awarded £20k in lieu, to be paid within a period of time and in any case by 20 September 2010 or the house would have to be sold to make the payment? Until the £20k payment is made he is still a joint owner.

By CCJ, do you actually mean the divorce settlement paperwork? Did the Court say that she will keep the house but she must buy him out, pay him £20k by September 2010? She was also ordered to keep up the mortgage payments. Instead of her taking the mortgage on alone or a new mortgage and buying XSIL out, daughter and XSIL kept the existing mortgage going.

Until the house is sold they are both still owners, his share is £20k worth. He is still your LL I believe, and you should pay him rent. Is the mortgage in joint names?

Since 2008, the divorce date, you have not paid your LL any rent. Instead you chose to pay "rent" money to your daughter so that she can afford to pay the mortgage payments via XSIL. But she is not making the mortgage payments as per the court order for whatever reason and now does XSIL want the house sold, and you out asap?

I am not sure if by effectively accepting "rent" from you, your daughter created a tenancy with you? Or how this will affect the Tenancy with your existing XSIL LL?

Nancy - Are you basically asking who has the right to evict you and what process must they use?

If XSIL is still your LL you have not paid HIM rent for 2 years.

pm

Nancy
22-10-2010, 13:45 PM
Apologies for a long post, but I wanted to be clear on this situation.

In 2004 your Son In Law, SIL, purchased the property. You paid him rent, whether or not there was formal agreement this creates a tenancy with you as Tenant and him as Landlord. He has all the responsibilities of a LL. Was the property solely in his name, was your daughter’s name mentioned on the property deeds as owner?

No. SIL was sole owner

So your son in law owns the property that you live in as of 2004 and he is your landlord. Yes

2008, your daughter and son in law divorce. As part of the divorce settlement Daughter gets house but eX-Son-In-Law (XSIL) is awarded £20k in lieu, to be paid within a period of time and in any case by 20 September 2010 or the house would have to be sold to make the payment? Until the £20k payment is made he is still a joint owner.

No. D and SL divorce 2004. D sells family home, meets someone else, marries and moves. SL agrees £12K but refuses to sign papers for money, thinking he's holding up the divorce. More court action, D uses money for solicitors etc.

By CCJ, do you actually mean the divorce settlement paperwork? Did the Court say that she will keep the house but she must buy him out, pay him £20k by September 2010? She was also ordered to keep up the mortgage payments. Instead of her taking the mortgage on alone or a new mortgage and buying XSIL out, daughter and XSIL kept the existing mortgage going.

No. 2008 more court action by XSIL. Awarded £20K. Still landlord to whom I am paying rent. Court states D is responsible for mortgage and her name must be put on the Land Registry. Just found his solicitors didn't do this. As D is responsible for mortgage, rent paid to her. Funds transferred to XSIL's bank account. We thought this was the right thing to do at the time.

2010 D intends paying £20K then company goes bellylup, no money.I'm still paying rent to her. Money very tight for D and she uses July, August and September's to buy essentials. I didn't know. No contact by XSIL complaining to me.

New SIL gets job in Australia. More court action re grandsons...... all go to Australia. Intends paying but money still very tight.

2010 Receive notice of eviction under Sections 8,10,11 and 21

Receive another notice of eviction as above with D's name added.

He wants me out whatever.

Until the house is sold they are both still owners, his share is £20k worth. He is still your LL I believe, and you should pay him rent. Is the mortgage in joint names? Since 2008, the divorce date, you have not paid your LL any rent. Instead you chose to pay "rent" money to your daughter so that she can afford to pay the mortgage payments via XSIL. But she is not making the mortgage payments as per the court order for whatever reason and now does XSIL want the house sold, and you out asap?

I am not sure if by effectively accepting "rent" from you, your daughter created a tenancy with you? Or how this will affect the Tenancy with your existing XSIL LL?

Nancy - Are you basically asking who has the right to evict you and what process must they use? NO
If XSIL is still your LL you have not paid HIM rent for 2 years.

pm

Tried to answer your PM but it wouldn't send.


Nancy

jeffrey
22-10-2010, 14:03 PM
Tried to answer your PM but it wouldn't send.


Nancy
I think that members who have posted fewer than 10 times cannot send Private Messages.

Snorkerz
22-10-2010, 14:17 PM
Right, based on your answers to PMs post.

You made a decision to pay the rent to your daughter - the court order did not instruct you to and the landlord (xSIL) did not instruct you to. The landlord has been happy to go along with this because D has (in effect) been paying the money on to him.

However, D is no longer paying this money to xSIL. As a result, xSIL is not getting rent. You have not paid rent to him - or to a person authorised by him. You owe xSIL rent, your daughter owes you the money she has mis-appropriated.

Presuming you have not been supplied with an address in England/Wales for the service of documents (s47, 1985 Landlord and Tenant Act) then the landlord can not demand rent - so the s8 is defendable because you don't owe any rent RIGHT NOW. As soon as he provides such an address, the full unpaid rent will become due and he can re-issue a s8 depending on the level of unpaid rent then.

The status of the s21 is not clear - but even if it is invalid now, a new (valid) one could easily be issued.

TBH - I think your best course of action would be to accept that the landlord is going to (eventually) be able to evict you and start looking for a new home.

property mongrel
22-10-2010, 15:06 PM
If the settlement did not order that Mum should pay rent money to Daughter who would then pay mortgage, then XSIL has lost out on at least 2 years rent. Court ordered Daughter to pay mortgage, and XSIL was in receipt of rent from Mum.

Someone might realise this and seek to recover the money if you continue to fight for your occupancy?

pm

Nancy
22-10-2010, 15:19 PM
If the settlement did not order that Mum should pay rent money to Daughter who would then pay mortgage, then XSIL has lost out on at least 2 years rent. Court ordered Daughter to pay mortgage, and XSIL was in receipt of rent from Mum.

Someone might realise this and seek to recover the money if you continue to fight for your occupancy?

pm

Huh? Rent has been paid up the last THREE MONTHS!


Nancy

Nancy
22-10-2010, 15:25 PM
Right, based on your answers to PMs post.

You made a decision to pay the rent to your daughter - the court order did not instruct you to and the landlord (xSIL) did not instruct you to. The landlord has been happy to go along with this because D has (in effect) been paying the money on to him.

However, D is no longer paying this money to xSIL. As a result, xSIL is not getting rent. You have not paid rent to him - or to a person authorised by him. You owe xSIL rent, your daughter owes you the money she has mis-appropriated.

Presuming you have not been supplied with an address in England/Wales for the service of documents (s47, 1985 Landlord and Tenant Act) then the landlord can not demand rent - so the s8 is defendable because you don't owe any rent RIGHT NOW. As soon as he provides such an address, the full unpaid rent will become due and he can re-issue a s8 depending on the level of unpaid rent then.

The status of the s21 is not clear - but even if it is invalid now, a new (valid) one could easily be issued.

TBH - I think your best course of action would be to accept that the landlord is going to (eventually) be able to evict you and start looking for a new home.

OK I accept that but how long will it take? The latest eviction notice....I am now up to five, ends Nov. 8th. so how long after before court?

The address was given on the first eviction notice of September. ( for service of notices)


Nancy

thesaint
22-10-2010, 15:41 PM
What dates did you make the missing payments to your daughter, and when was the 1st notice you were given?

westminster
22-10-2010, 16:00 PM
I have now received a notice of eviction Sections 8,10 and 11 which end 8/11 and Section 21 which ends December 30th. She is also named on both although she is in Australia.
But she is not the co-landlord/co-owner of the rental property, so why is she 'named' as such on the notices? The notices are likely to be invalid because of this.

The real landlord/owner (i.e. xSIL) has not received rent for four months, so is entitled to apply for possession on that basis.


I offered to up the monthly rent to gradually pay off the arrears which I don't owe, she can't afford to. This was refused. I have proof of payments and proof of offer and refusal.

I'm afraid you do owe the landlord the arrears. If he obtains a possession order via s.8 procedure, he will also obtain an order for the unpaid rent, ordering you to pay him.

You can, as advised, string it out by defending any possession applications on various grounds (incorrect LL name, or perhaps the s.21 expires on the wrong date) but in the end you can and will be evicted.

Nancy
22-10-2010, 17:52 PM
What dates did you make the missing payments to your daughter, and when was the 1st notice you were given?

The standing order was for the 26th of each month to my daughter's account and July -August September and October are listed although October's isn't due until this week.

Notices Give:
Dated Sept.22nd Section 8,10,11 End date 11/10 Section 21 End Date 30/11

Dated Oct. 19th. Section 8.10.11 End Date 8/11 Section 21 End Date 30/12


Nancy

Nancy
22-10-2010, 18:00 PM
But she is not the co-landlord/co-owner of the rental property, so why is she 'named' as such on the notices? The notices are likely to be invalid because of this.

My XSL is a control freak and very illogical, deadly combination. He didn't even know that she was responsible for the Mortgage, not having read the court order.

She also lives in Australia and has not received the notice personally.

The real landlord/owner (i.e. xSIL) has not received rent for four months, so is entitled to apply for possession on that basis.


I'm afraid you do owe the landlord the arrears. If he obtains a possession order via s.8 procedure, he will also obtain an order for the unpaid rent, ordering you to pay him.

You can, as advised, string it out by defending any possession applications on various grounds (incorrect LL name, or perhaps the s.21 expires on the wrong date) but in the end you can and will be evicted.

Yes I know.What I want to know is....HOW LONG?

My daughter wants me to go to Australia but there is a time lag so I need to stay in the house for as long as possible/ OR get a council place and stay here. Either way at 71 I don't want to move if I can possibly help it. So....How long?


Nancy

Snorkerz
22-10-2010, 18:00 PM
The standing order was for the 26th of each month to my daughter's account and July -August September and October are listed although October's isn't due until this week.But, as you have been told, D is NOT your landlord, you can pay what you want to her but you are not paying anything to the true landlord xSIL. Therefore xSIL can and will evict you. D can not evict you.

This page gives the timescales and process for eviction via s8 and s21 although the actual durations depend upon the workload of the court at the time. http://www.tenancyanswers.ucoz.com/index/being_evicted/0-21

Snorkerz
22-10-2010, 18:02 PM
The address was given on the first eviction notice of September. Can you confirm that that was in England/Wales, not Australia?

Nancy
22-10-2010, 18:09 PM
But, as you have been told, D is NOT your landlord, you can pay what you want to her but you are not paying anything to the true landlord xSIL. Therefore xSIL can and will evict you. D can not evict you.

This page gives the timescales and process for eviction via s8 and s21 although the actual durations depend upon the workload of the court at the time. http://www.tenancyanswers.ucoz.com/index/being_evicted/0-21

Thankyou. I will take a look.

Can I also add that the rent and the mortgage are the same. In other words they weren't separate entities. There was some confusion on that.

Thanks all for your help.

The next few weeks should prove interesting!


Nancy

Nancy
22-10-2010, 18:14 PM
Can you confirm that that was in England/Wales, not Australia?

England. XSIL lives here.


Nancy

Snorkerz
22-10-2010, 18:18 PM
the rent and the mortgage are the same.They may be in your head, and they may be the same physical amount, but in law they are 2 different things.

Nancy
22-10-2010, 18:40 PM
They may be in your head, and they may be the same physical amount, but in law they are 2 different things.


Just one more thing to add. My daughter and I have spent nearly £9000 upgrading the place. Double glazing, new kitchen and paid for all repairs. None of that we will get back. He has never spent a penny and yes he will argue that I never asked for repairs to be done but I know he would have refused.

No justice. Hey ho


Nancy

westminster
22-10-2010, 20:06 PM
Nancy, bear in mind that you could try to defend the s.8 application on the basis that it names the wrong landlord, i.e. it should only say xSIL's name, not D+xSIL.

Also, the s.8 notice uses three grounds; ground 8, 10 & 11. Ground 8 applies when there is at least two months' rent owing and unpaid, and it's a mandatory ground, meaning that the court must grant a possession order. If you reduce the debt to less than two months owing before the hearing, then the mandatory ground doesn't apply, and it's much less likely xSIL would get a possession order, because grounds 10 & 11 aren't mandatory.

Note that 'owing and unpaid' is different to 'arrears'. It means if the rent due on, say, 1st January is unpaid, and the rent due on 1st February is unpaid, then on 2nd February two months' rent is owing and unpaid.

S.21 procedure is the 'no fault' procedure. LL must give T at least two months notice, but it must also expire at the end of a tenancy 'period'. What date (dd/mm/yy) did you actually move in to the property, because that's when the periods began (as there's no written tenancy contract)? I ask because, if your LL gets the expiry date wrong, the notice is invalid and he'd have to serve a new notice giving another two months, so it's important to know what the tenancy periods are.

westminster
22-10-2010, 20:20 PM
Just one more thing to add. My daughter and I have spent nearly £9000 upgrading the place. Double glazing, new kitchen and paid for all repairs. None of that we will get back. He has never spent a penny and yes he will argue that I never asked for repairs to be done but I know he would have refused.

No justice. Hey ho


No, this isn't correct. The landlord has statutory repairing obligations under s.11 Landlord & Tenant Act 1985, i.e. he is obliged, by law, to make certain repairs. These obviously do not include making improvements such as new kitchen/double glazing, BUT do cover repairs such as a broken down boiler, or a roof leak etc (see link below).

If you have evidence that you paid, for example, for the boiler to be fixed, then you could use this to argue that the rent owing should be reduced by the amount you spent. Whilst, strictly speaking, you should have reported the disrepair to the LL, it is still worth trying this as a defence if he claims possession via s.8 procedure (if you just need to buy a bit of extra time, as you say, then it might just work - if the amount you spent is equivalent to enough to bring the rent owing down to less than two months).

Here's a link about what the LL's repairing obligations are
http://www.letlink.co.uk/letting-factsheets/factsheets/factsheet-11-landlords-repairing-obligations.html

westminster
22-10-2010, 20:22 PM
P.S. I think it would be a good idea to contact Shelter for advice on defending an application for possession. They may even offer to provide legal assistance. http://england.shelter.org.uk/

Nancy
22-10-2010, 20:32 PM
Nancy, bear in mind that you could try to defend the s.8 application on the basis that it names the wrong landlord, i.e. it should only say xSIL's name, not D+xSIL.

No. The 2nd. eviction order is addressed to myself and my daughter....she being in Australia!

Also, the s.8 notice uses three grounds; ground 8, 10 & 11. Ground 8 applies when there is at least two months' rent owing and unpaid, and it's a mandatory ground, meaning that the court must grant a possession order. If you reduce the debt to less than two months owing before the hearing, then the mandatory ground doesn't apply, and it's much less likely xSIL would get a possession order, because grounds 10 & 11 aren't mandatory.

Note that 'owing and unpaid' is different to 'arrears'. It means if the rent due on, say, 1st January is unpaid, and the rent due on 1st February is unpaid, then on 2nd February two months' rent is owing and unpaid.



S.21 procedure is the 'no fault' procedure. LL must give T at least two months notice, but it must also expire at the end of a tenancy 'period'. What date (dd/mm/yy) did you actually move in to the property, because that's when the periods began (as there's no written tenancy contract)? I ask because, if your LL gets the expiry date wrong, the notice is invalid and he'd have to serve a new notice giving another two months, so it's important to know what the tenancy periods are.

I moved into the property in 1998 and unfortunately I'm a great one for de cluttering so when the cottage was purchased by XSIL I threw the paperwork. I think it was the middle of the month but I have nothing to verify this. Mind you if I don't know, XSIL won't know either! So he is guessing.

I'm trying to think back. When I first came here I actually rented next door. Now that would have been July/August. I only stayed six months because I damn near froze to death, the place was so cold. The landlord of my cottage now asked me if I would like to rent his place and the rest as they say is history....so that must have been January. That's as close as I can get. Signed an Assured Tenancy Agreement for six months and never signed another one.


Nancy

Nancy
22-10-2010, 20:40 PM
Thanks I'll read that carefully. The wood stove was past it's sell by date...wasn't functioning. Does that count? Replaced it. Repairs to gutters, tile on the roof, and the facia board. There are so many.

As I said I will read carefully.

Thanks

Nancy

westminster
22-10-2010, 20:50 PM
Nancy, bear in mind that you could try to defend the s.8 application on the basis that it names the wrong landlord, i.e. it should only say xSIL's name, not D+xSIL.


No. The 2nd. eviction order is addressed to myself and my daughter....she being in Australia!
Addressed to you and your daughter? Well, that makes the notice wrong, too. Your daughter is not the tenant. But, are any of the s.8 notices possibly correct? - do any of them have xSIL named as LL, and you as tenant (and D not mentioned anywhere)?


I moved into the property in 1998 and unfortunately I'm a great one for de cluttering so when the cottage was purchased by XSIL I threw the paperwork. I think it was the middle of the month but I have nothing to verify this. Mind you if I don't know, XSIL won't know either! So he is guessing.
Exactly. So it's likely that the expiry date of the s.21 notice is wrong, therefore the notice will be invalid. UNLESS there is a 'saving' clause, saying something like "if this notice would otherwise be ineffective, after the date being the earliest date not earlier than two months after the date of service of this notice when shall expire a period of the assured shorthold tenancy." Does it say anything like this?

A lot of LLs serve invalid notices so it is a very useable defence.

westminster
22-10-2010, 21:00 PM
Thanks I'll read that carefully. The wood stove was past it's sell by date...wasn't functioning. Does that count? Replaced it. Repairs to gutters, tile on the roof, and the facia board. There are so many.

Anything structural is LL's responsibility. Not sure what you mean by wood stove being past its sell by date, but LL had an obligation to keep it in working order, so yes, it counts.

As I said, strictly speaking you should have reported the disrepair and given LL the opportunity to carry out the repairs himself - then, if he didn't, you'd have been entitled to get quotes (sending copies to LL) and if he still didn't do the repairs, arrange them yourself and deduct the cost from the rent.

But, in the context of a s.8 possession application, it is well worth trying this as a defence, if you don't have the cash to bring the rent owing and unpaid down to less than two months. You will need evidence, though. It's not enough just to say you spent £X on something.

westminster
22-10-2010, 21:04 PM
....so that must have been January. That's as close as I can get. Signed an Assured Tenancy Agreement for six months and never signed another one.

The month you moved in isn't the important bit - it's the day of the month. Who did you sign the AST with, though? Was this the original owner of the property, before xSIL bought it? If so, do you still have this, as it'll tell us what date the s.21 notice ought to expire. Is it likely xSIL has a copy?

Nancy
23-10-2010, 08:18 AM
Addressed to you and your daughter? Well, that makes the notice wrong, too. Your daughter is not the tenant. But, are any of the s.8 notices possibly correct? - do any of them have xSIL named as LL, and you as tenant (and D not mentioned anywhere)?

No. She is named on the Section 8 and 21. on the new notice. If the CCJ says that she is responsible for the mortgage doesn't that make her a tenant?

Exactly. So it's likely that the expiry date of the s.21 notice is wrong, therefore the notice will be invalid. UNLESS there is a 'saving' clause, saying something like "if this notice would otherwise be ineffective, after the date being the earliest date not earlier than two months after the date of service of this notice when shall expire a period of the assured shorthold tenancy." Does it say anything like this?

No Section 21 says......after (4)31/12/2010 or the day on which a complete period of your tenancy expires next after the end of two months from the service of this notice.

A lot of LLs serve invalid notices so it is a very useable defence.

Yes but he's using a company to evict me. Mind you I suppose they can only go on what he tells them and he is quite sparse with the truth when it suits him.


Nancy

Nancy
23-10-2010, 08:22 AM
I'm trying to find out dates from other sources. I signed the AST with the original owner. Didn't sign anything after that. XSIL won't have any idea of dates.


Nancy

Brb
23-10-2010, 08:26 AM
The way I understood things are.

Nancy rented cottage from private LL. Daughter and SIL bought cottage in 2008 and no AST ever signed (so tenancy from previous private LL in effect). So new LLs are D and SIL. Since 2008 Nancy has been paying her rent to D's account and this has continued.

When the divorce occured, obviously being family Nancy knew the details but when SIL became sole LL and became XSIL he should have served S3 ? and provide new banking details ?

Nancy
23-10-2010, 08:27 AM
Been there done that. They weren't much help. What I have found perhaps more than anything else is that if I were on benefits I would be drowned in help. I'm not so I'm on my own. There appears to be a lot of help but there isn't. When the Housing Officer tells you to be pragmatic ....that shows the level there is. So laid back he's falling over.

Nancy

property mongrel
23-10-2010, 08:32 AM
As I understand it if the form is ineffective when he or the Company he is using approach the court any proceedings will be thrown out. If he is less than honest with them it is likely to make their task more difficult and your stay longer. In 2 months, following service on you of an incorrect form they might apply to a court for a possession notice, if this is wrong someone will correct me, but you or your agent will be able to point out at the court that the form is defective in ONLY ONE area where it is, and the process will again with another form and another 2 months notice. If you only object and point out one fault in the form on each occasion you may get several months more, on each occasion pointing one other fault at a time?

So, at Court in 2 months time you point out that the form lists your Daughter as tenant or LL or whatever is wrong.

Good luck with it.

pm

westminster
23-10-2010, 12:15 PM
She is named on the Section 8 and 21. on the new notice. If the CCJ says that she is responsible for the mortgage doesn't that make her a tenant?
No. I don't really understand why D was ordered (or could be ordered) to pay the mortgage, but it certainly doesn't make her the tenant, or a joint tenant. She is not the landlord either unless her name is on the title with the Land Registry (you say she's not, but has anyone actually checked the Land Registry online? It costs £4 to download the details).

However, D is the person who has effectively been paying the rent to the landlord for the past 2(?) years (passing it on from you), and this may be what is confusing the eviction company hired by LL. D still isn't the tenant, because she lives in Australia, and has never lived in the rental property with you. BTW, you said you paid rent to D 'as requested' - who told you to pay the rent to her?

When your xSIL bought the property and became your new landlord, he should, as Brb mentions, have served you with a s.3 notice under Landlord & Tenant Act 1985, together with a Letter of Authority from the old landlord. Basically, this is the official way to inform a tenant of a change of landlord. It is a (minor) criminal offence not to do this.


* * * * *

So, you have quite a few defences to use against an application for possession. The first three are the strongest ones:

1. Re either s.8 or s.21 application: No notice served under s.3 Landlord & Tenant Act 1985. (This means the s.8/s.21 notices would be defective, so LL would then have to serve the s.3 notice before serving new s.8/s.21 notices, so he goes back to square one).

2. Re either s.8 or s.21 application: Notices defective because they state incorrect tenant name. (LL again back to square one)

3. Re a s.8 application only: reduce rent owing to less than two months' (This would make it very unlikely the s.8 application would succeed, forcing LL to apply again via s.21 procedure after that notice expires).

4. Re a s.8 application only: claim rent owing is less than two months' on the basis of the money you have spent on LL's statutory repairs under s.11 Landlord & Tenant Act 1985. (Similar scenario to 3. but may fail as a defence because you didn't report disrepair to LL before carrying out the repairs).

5. Re a s.21 application only - and this is the weakest of all the defences: the notice does not give 'a' date of expiry under s.21(4)(a) Housing Act 1988, i.e. give a single date of expiry, as opposed to two. (It's weak because notices with saving clauses - and your notice *does* include one - have been considered valid in other court cases, and if the LL is using a professional to represent him, they'll know this. So best to 'save' this defence and use as a last resort).


* * * * *

But as Property Mongrel says, don't use up your defences all in one go. In particular, don't use both #1 and #2 in the same defence, because both of them require the LL to go back to square one and serve the s.8/s.21 notices again, which buys you more time.

Assuming LL applies via s.8 first, I'd use #3 ideally, plus #2. If you can't use #3, then use #4 plus #1. (But other forum members may suggest a better strategy).

Either of these strategies ought to defeat the first application. At which point, come back and give us an update on the forum.

Meanwhile, gather together as much evidence as you can, anything related to the tenancy and your occupation since 1998, receipts for repairs carried out, etc.

Re getting help; have you also tried a Citizens' Advice Bureau, or a Law Centre? Have you checked whether you are eligible for legal aid? See
http://www.communitylegaladvice.org.uk/
http://www.lawcentres.org.uk/

(and http://www.lawforall.org.uk/ if you're in the right area)

Nancy
25-10-2010, 10:31 AM
No. I don't really understand why D was ordered (or could be ordered) to pay the mortgage, but it certainly doesn't make her the tenant, or a joint tenant. She is not the landlord either unless her name is on the title with the Land Registry (you say she's not, but has anyone actually checked the Land Registry online? It costs £4 to download the details).

I checked. She isn't on the Land Registry although his solicitors were supposed to do this. Didn't happen, unless it was changed after September 30th.

However, D is the person who has effectively been paying the rent to the landlord for the past 2(?) years (passing it on from you), and this may be what is confusing the eviction company hired by LL. D still isn't the tenant, because she lives in Australia, and has never lived in the rental property with you. BTW, you said you paid rent to D 'as requested' - who told you to pay the rent to her?

We thought we were doing the right thing as she was responsible for the mortgage. Who on earth could have seen this lot coming? It was working fine and he never questioned it or asked for it to be changed.

When your xSIL bought the property and became your new landlord, he should, as Brb mentions, have served you with a s.3 notice under Landlord & Tenant Act 1985, together with a Letter of Authority from the old landlord. Basically, this is the official way to inform a tenant of a change of landlord. It is a (minor) criminal offence not to do this.


* * * * *

So, you have quite a few defences to use against an application for possession. The first three are the strongest ones:

1. Re either s.8 or s.21 application: No notice served under s.3 Landlord & Tenant Act 1985. (This means the s.8/s.21 notices would be defective, so LL would then have to serve the s.3 notice before serving new s.8/s.21 notices, so he goes back to square one).

2. Re either s.8 or s.21 application: Notices defective because they state incorrect tenant name. (LL again back to square one)

3. Re a s.8 application only: reduce rent owing to less than two months' (This would make it very unlikely the s.8 application would succeed, forcing LL to apply again via s.21 procedure after that notice expires).

4. Re a s.8 application only: claim rent owing is less than two months' on the basis of the money you have spent on LL's statutory repairs under s.11 Landlord & Tenant Act 1985. (Similar scenario to 3. but may fail as a defence because you didn't report disrepair to LL before carrying out the repairs).

5. Re a s.21 application only - and this is the weakest of all the defences: the notice does not give 'a' date of expiry under s.21(4)(a) Housing Act 1988, i.e. give a single date of expiry, as opposed to two. (It's weak because notices with saving clauses - and your notice *does* include one - have been considered valid in other court cases, and if the LL is using a professional to represent him, they'll know this. So best to 'save' this defence and use as a last resort).


* * * * *

But as Property Mongrel says, don't use up your defences all in one go. In particular, don't use both #1 and #2 in the same defence, because both of them require the LL to go back to square one and serve the s.8/s.21 notices again, which buys you more time.

Assuming LL applies via s.8 first, I'd use #3 ideally, plus #2. If you can't use #3, then use #4 plus #1. (But other forum members may suggest a better strategy).

Either of these strategies ought to defeat the first application. At which point, come back and give us an update on the forum.

Meanwhile, gather together as much evidence as you can, anything related to the tenancy and your occupation since 1998, receipts for repairs carried out, etc.

Re getting help; have you also tried a Citizens' Advice Bureau, or a Law Centre? Have you checked whether you are eligible for legal aid? See
http://www.communitylegaladvice.org.uk/
http://www.lawcentres.org.uk/

No not eligible for anything. Been there, tried that.Extremely frustrating when I read that millions are not being claimed.

(and http://www.lawforall.org.uk/ if you're in the right area)

Some of the work done was by his brother, who strongly disapproves of what he's doing and has done. He's sending me a copy of the bill. I also found my old landlord Alan who had moved so he's hunting through his paperwork for dates.

Many thanks all for your help. What a nightmare. I will let you know what happens. Hopefully it will be good news. One more question.

Do you think I should complain to the Council as to the advice received from the housing officer which contradicts the info on the website? Can't decide. It could backfire on me.


Thank again to you all


Nancy