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dross
17-03-2011, 11:39 AM
My estate agents signed an AST with tenant a woman on HB with two children another on the way in her sole name. No mention ever of any sort of a partner involved. References taken up by agents were based on my address into which she just moved in, despite the fact that full details were availabe of the previous address. In December last this came to a head and contact was made with Housing. They suspended payments of HB for two weeks but they then carried on. In a telephone call recently they told me that they are aware of the existence of the partner. They would release no information on him to me. They told me I should ask the tenant for any particulars. Just today a sec 21 notice is being sent to the court. So where do I stand as regards partners position re eviction. Can I issue a rent demand notice on this person? Is he an unlawful occupier of my property? Will the bailiff remove him from the property too, for they are waiting to be rehoused by the council. What is the status of this person? Any help would be gratefully appreciated.

jjlandlord
17-03-2011, 11:53 AM
Just today a sec 21 notice is being sent to the court.

A sec.21 notice should be served to the tenant. Then after it has expired you may apply for a possession order to the court.


Can I issue a rent demand notice on this person?

No, he is not the tenant.


Is he an unlawful occupier of my property?

No.


Will the bailiff remove him from the property too

Bailiffs would remove all the persons at the property.


What is the status of this person?

A guest of the tenant, or a lodger if he is somehow paying rent to the tenant.

dross
17-03-2011, 12:27 PM
Thanks jj
So can you please help me getting my head around the AST agreement which says "not to assign or sublet, not to part with possession of it in any other way"? Can you also help how is it possible that he moves in without any notice to the landlord please? Can he just move in without asking landlord or without the agreement of the landlord please? Because he is the father of the children that makes it legal? How does HB know about his existence and how come her entitlement to HB does not change because of his presence? How come that HB are aware of him and they have no obligation to notify the landlord, because they are not paying him HB, but her? Will she ever give the landlord his details please, which is really no longer of consequence?

jjlandlord
17-03-2011, 12:47 PM
I don't think that there is any question re legal vs illegal here, but rather whether there is any breach of the tenancy agreement.


So can you please help me getting my head around the AST agreement which says "not to assign or sublet, not to part with possession of it in any other way"?

If the partner is just living with the tenant, I don't believe that this clause is breached.

Tenant has no obligation of notifying landlord of anything in this matter.
But if landlord is not happy with the situation he can request that a new agreement be drawn with both names as tenant. If they refuse the alternative is either to live with it or to find new tenants...

Lawcruncher
17-03-2011, 13:02 PM
So can you please help me getting my head around the AST agreement which says "not to assign or sublet, not to part with possession of it in any other way"?

"Parting with possession" is not the same thing as "sharing occupation". If you want to prohibit sharing you have to say so. Even if you do prohibit it the provision cannot ever be absolute when the letting is residential, unless perhaps it is of something like a bedsit where the tenant pays an all in rent. A prohibition against sharing occupation is not going to prohibit occupation by the tenant's family ("family" here having a very wide meaning) or stop someone staying temporarily. All it really does is stop the tenant taking in paying guests or lodgers.

dross
17-03-2011, 17:34 PM
Sorry sec 21 notice was served on the 4th December 2010, in person, signed by T in acknowledgment of receipt and later a letter from the housing adviser confirming that the earliest date for bringing proceedings for accelerated possession is the 16 March 2011. So today the application for possession was submitted to the court on the internet by solicitors.

Snorkerz
17-03-2011, 19:38 PM
So can you please help me getting my head around the AST agreement which says "not to assign or sublet, not to part with possession of it in any other way"? Tenant has not parted with possession


Can you also help how is it possible that he moves in without any notice to the landlord please? Can he just move in without asking landlord or without the agreement of the landlord please? yes


Because he is the father of the children that makes it legal?It would be legal anyway


How does HB know about his existenceShe probably told them - she is obliged to do this


and how come her entitlement to HB does not change because of his presence?If he is entitled to LHA, the amount would not change as the liability remains the same.


How come that HB are aware of him and they have no obligation to notify the landlord, because they are not paying him HB, but her?Exactly, the LA has no responsibility to you


Will she ever give the landlord his details please, which is really no longer of consequence?We have no way of knowing this - why does it matter? is it costing you more now that there are 2 adults?


Sorry sec 21 notice was served on the 4th December 2010, in person, signed by T in acknowledgment of receipt and later a letter from the housing adviser confirming that the earliest date for bringing proceedings for accelerated possession is the 16 March 2011.This suggests to me that the expiry date on the s21 was not 16th March - was it? Did the tenants pay a deposit, and if so have you a) Protected it legally and b) Given the tenants the "prescribed information".


So today the application for possession was submitted to the court on the internet by solicitors.Why have they used the internet service? It precludes you from using the accelerated procedure.

dross
17-03-2011, 19:56 PM
Thanks Snorkerz Yes Deposit is protected and the prescined info was given in person and signed by T in acknowledgement on the 4th December. The tenancy was a four weekly tenancy and solicitor calculated the final date as early March, but the housing advisor wrote a letter and said that the date should be the 16 March, so solicitor suggested we go by the date given, so as not to create issues for the court.
I am wrong about the application for possession sent by the inernet. It was I am sure done in the proper way by solicitor.
The place is a 110 year old property basically 2 up 2 down and with two adults and three children it is overcrowded. And also the property was originally let to a single mum with two children and one on the way. Thanks.

Snorkerz
17-03-2011, 20:27 PM
I am still concerned about the validity of your section 21 - as having the wrong date on it is not fixed simply by applying to the court on a different day. Is your solicitor a specialist in this kind of work?

If you want, answer these questions so that we can verify the validity of the s21.

When did the last tenancy agreement begin?
How long was it for?
Was the s21 served on 4/12 a s21(1)(b) or a s21(4)(a)?
What was the exact wording of the expiry date?
Was there any saving text in case of errors? for instance, the free s21 template on this site says :"the landlord requires possession after the date stated in this notice or at the end of the period of your tenancy which will end next after the expiration of 2 months from the service upon you of this notice"

dross
17-03-2011, 20:53 PM
Thanks Snorkerz
Herewith the information. for your attention. Thanks you very much for your help.
1.First tenancy begun on the 18 September 2008, the second tenancy agreement was dated 17 March 2009. First one was a monthly tenancy and the second was a four weekly tenancy.
2. six months both
3. Sec 21(4)(a)
4 & 5. After 3 March 2011,or, if the alternative date mentioned beloww is different, after the alternative date. The alternative date is the first date after this notice was given to you which is: 1. at least two months after this notice was given to you, and 2. which is the last date of a period of your tenancy and not earlier than the earliest date on which your tenancy could (apart from the landlord's inability, under s. 5(1) of the Housing Act 1988, to terminate an assured tenancy by notice to quit) lawfully be ended by a notice to quit given to you on the same date as this notice.

Snorkerz
17-03-2011, 21:00 PM
Personally, I disagree with both your solicitor and the housing people.

However.... The saving text on your s21 will cover all 3 options, so you should be fine.

dross
17-03-2011, 21:05 PM
Thanks Snorkerz If you have another moment please tell mel what is your date and why?

Snorkerz
17-03-2011, 21:34 PM
Thanks Snorkerz If you have another moment please tell mel what is your date and why?I went for the 2nd March because....

the last tenancy agreement ended on Wednesday 16th September 2009.

Each following tenancy period (4 weeks) ended on 14/10/2009 11/11/2009 09/12/2009 06/01/2010 03/02/2010 03/03/2010 31/03/2010 28/04/2010 26/05/2010 23/06/2010 21/07/2010 18/08/2010 15/09/2010 13/10/2010 10/11/2010 08/12/2010 05/01/2011 02/02/2011 02/03/2011

So, if the s21 was served on 4/12/10, the 2 months was up on 4/2/11, and the first period end after that is Wednesday 02/03/2011.

dross
18-03-2011, 07:43 AM
Wonderful. thank you Snorkerz. Solicitor calculated as you and came to the same conclusion, but made 3 March 2011, the date after the period

Snorkerz
18-03-2011, 12:57 PM
Wonderful. thank you Snorkerz. Solicitor calculated as you and came to the same conclusion, but made 3 March 2011, the date after the periods21(4)(a) states that the expiry date must be "the last day of a period of the tenancy", the 3rd is the first day. Sack your solicitor;)

Seriously, why are you using a solicitor? DIY - £150 plus bailiffs (if required). Solicitor £500 - £1k (those who advertise on here are £1k, but I know some local solicitors charge less).

dross
27-03-2011, 17:43 PM
Thanks Snorkerz. Solicitors gave the date of expiry of the tenancy as the 3 March 2011, but because, T went to the local Housing Adviser, who wrote back to say that "the notice is valid as it has a saving clause: however you cannot apply to the courts prior to the 16 March 2011 as this is the last day of the tenancy period." So solicitor completed and sent the claim form for possession of property on the 17th March in which she referred to her date, which was the 3rd March. She also advised the court on the form that that because the housing adviser thought the date to be the 16 March, she did not want to contest it, but rather await the expiry of the time to be in accordance with the housing advisor's letter. Solicitor charged me £75 for this including VAT.
On the 17th March, and after she asked me for the various documents to accompany the form (tenancy agreements) and sent me a copy of the accelerated procedure form to check over & sign, but leaving it undated, she confirmed to me that the claim form for possession of property was sent to court on the 17th March.As I am writing on the on the 27th March, no acknowledgement received back from the court yet. She charged me £390 for this and I see that the court fee comes to £150, with her costs of £69.50 and she is claiming my costs to be paid by tenant.
In the meantime I received an "early Notification Letter" from a firm of solicitor, who is designated as "Sole Principal Solicitor: Kwame OheneAsare BSc(Hon)LL.B(Hon), Non-Practising Barrister" dated 2nd March, sent on the 11 March and received on the 13 March 2011 as the final paragraph reads:" Claims: Our clien's disrepair claim requuires further investigations. We will write to you as soon as possible with further details of the history of the defects and of notice relied on along with details of our client's claim for genaral and zspecial damages." Of course the letter is accompanied with a 19 page report of disrepairs, claiming that disrepairs date back to September 2010.
So, how will the claim for possession of the property be affected by this claim please?
Have they sent in their calim in time before the expiry of the tenancy and what if any significance does this have please?

Brb
27-03-2011, 18:25 PM
Disrepair is not a valid defense. The only defense to a S21 is that it is invalid itself.

Snorkerz
27-03-2011, 18:52 PM
I agree with Brb. Worth noting that your tenant is almost certainly being funded by Legal Aid as that solicitors (they are in Croydon?) do not do any 'half hour for £20' deals. I am sure I have read that it is possible to apply for legal aid to be withdrawn if the claim is frivolous (tax-payers money), so that may be worth researching.