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angelfish
12-09-2006, 22:52 PM
Hi can someone please help, although I'm quite up to date with certain areas of housing law, I could do with some advice on a problem tenant I have.

I have an assured shorthold tenant who is now statutory periodic, he has 3 months rent arrears and stupidly I allowed him to use the deposit I was holding to bring the arrears down to 2 months. I obviously want to evict him but at the same time I want to recover the money he owes me.

I am aware that I can serve a section 8 notice, using the mandatory ground 8 (rent arrears) however I'm reluctant to do this incase he manages to raise the money before the possession hearing.

I am therefore going to serve a S21 notice giving him 2 months. I do not want to go for accelerated possession as I know by doing this I can only re-claim possession of the property and not for anything else such as arrears.

Am I able to serve S21 notice and include on the notice that I will be recovering arrears and court costs at the same time?

If I do this and my tenant is stubborn and remains beyond the expiry date, I know I have to apply to county court intially for a possession order and then for a bailiffs warrant but how do I actually get my rent money? I do not really want to take separate action in a small claims court to recover this and was hoping that at the possession hearing the judge would grant possession and order that rent and court costs be paid.

Any help anyone can give would be greatly appreciated

Thanks x

MrShed
12-09-2006, 23:07 PM
Serve S21 under accelerated procedure and pursue the tenant in small claims for the arrears.

davidjohnbutton
12-09-2006, 23:19 PM
I concur with MrShed

justaboutsane
13-09-2006, 06:56 AM
serve section 8 AND section 21.. if the tenant gives you the money before the section is completed (ie court etc) then you still have the section 21 to fall back on and it has been known for a judge to allow the section 8 even though the arrears have been paid IF he is made aware that the LL intends to evict anyway under section 21.

IF the Judge does not grant possession under section 8 you still have the section 21 working in the back ground.. you just go back to court and start again... Any monies outstanding you go for small claims court.

Surrey
13-09-2006, 06:58 AM
I'd serve BOTH Section 8 (grounds 8, 10 and 11) AND Section 21. If Ground 8 fails for some reason you've got your S21 rumbling along in the background and then you can do the AP without further delay. Belt and braces, as it were...

MrShed
13-09-2006, 08:01 AM
Yes I actually agree with JSA and Surrey here! Was just trying to make the point that S21 under accelerated procedure does not mean you cannot claim arrears, you just have to do it another way. But yes make sure you serve the S8 under grounds 8 10 and 11!

davidjohnbutton
13-09-2006, 08:10 AM
The problem here is that you have a tenant who has potentially the wherewithal to defeat a S8 possession action by reducing the arrears to just below the 2 months/8 weeks level by the time of the hearing. At that point, the judge loses the mandatory requirement to a possession order though the landlord will get costs.

It is important to note that if the arrears are over 2 months/8 weeks, the judge must issue a mandatory possession order - he/she has no choice by law. But if the arrears are even a few pence under the required level on ground 8 (sometimes called section 8 after the notice) then the judge cannot make a possession order under that ground and due to discretionary rights, is unlikely to under ground 10 or 11 as those are the discretionary, rather than compulsory grounds.

Under a S21 notice and using acellerated possession process, you cannot claim rent arrears - its possession only but providing the paperwork is done properly, a possession order is mandatory again irrespective of rent arrears.

The OP may be better off using S21 to obtain possesion through the APP and using an ordinary summons to recover the rent arrears if no successful payment arrangement.

MrShed
13-09-2006, 08:20 AM
But there is no harm following this route and also applying for S8 DJB?

lawstudent
13-09-2006, 08:27 AM
I have an assured shorthold tenant who is now statutory periodic, he has 3 months rent arrears and stupidly I allowed him to use the deposit I was holding to bring the arrears down to 2 months
This indeed seems pointless and dangerous. How and why did you do it? Was it a verbal agreement or in writing? What, precisely did you say?

davidjohnbutton
13-09-2006, 10:31 AM
In reply to Mr. Shed - there is no harm in following both the S8 and S21 routes at the same time (i.e. serving both notices) however, when it comes to court - what I was looking at was establishing a "dead cert" way of obtaining possession, and that is by the S21 route.

Going through S8 which allows you to issue summons a lot earlier incurs a £150 court fee and a normal court hearing which might be two months away or more during which time the tenant has opportunity to frustrate the process by reducing the debt to below 8 week/2 months level and when this happens, the landlord must then rely on the S21 process which attracts another £150 court fee. (assuming that the landlords wants rid of the tenants whatever).

Of course, issuing the S21 process and a separate later default summons claim will cost approximately the same (i.e. £150 S21 APP and default summons court fee of say £150 depending on the amount sued) but possession is certain provided all paperwork is OK.

Surrey
13-09-2006, 12:40 PM
In reply to Mr. Shed - there is no harm in following both the S8 and S21 routes at the same time (i.e. serving both notices) however, when it comes to court - what I was looking at was establishing a "dead cert" way of obtaining possession, and that is by the S21 route.

Going through S8 which allows you to issue summons a lot earlier incurs a £150 court fee and a normal court hearing which might be two months away or more during which time the tenant has opportunity to frustrate the process by reducing the debt to below 8 week/2 months level and when this happens, the landlord must then rely on the S21 process which attracts another £150 court fee. (assuming that the landlords wants rid of the tenants whatever).

Of course, issuing the S21 process and a separate later default summons claim will cost approximately the same (i.e. £150 S21 APP and default summons court fee of say £150 depending on the amount sued) but possession is certain provided all paperwork is OK.

All that agreed, but SERVING a notice doesn't cost anything, it just minimises the delay IF the S8 route doesn't work. And it would be neater if the S8 DID work as LL could then get rent arrears back without having to take separate small claims action. It can also be helpful to mention in court in the S8 proceedings that you have issued a S21 already, so the judge will be aware that if he doesn't give you possession under the S8 action you'll be back...

Worldlife
13-09-2006, 23:11 PM
I have voted in favour of the S21 procedure with accelerated possession.

Until you actually regain possession of the property you will not know exactly how much you will need to claim in County Court for rent arrears and you will not know until the handover of the property what, if any, claims for damage you might need to make (at the moment you have no deposit from which to deduct such monies)

justaboutsane
14-09-2006, 06:51 AM
At the hearing fior section 8 you can update the judge with current arrears.

We had this happen, the hearing was about 3 months after the section 8 was issued and the Judge asked us what the current arrears were. Make sure you take an up to date statement of the arrears and you are find. Our judge ordered possession in 7 days and stuck a CCJ on the lad!

With regards to any damage, I would sue seperatly for those if necessary. however we chose not to as we were going to be converting the property to an HMO anyway so would be ripping everything out!