View Full Version : Tenancy agreement ended mututally between tenant and landlord
18-12-2011, 19:22 PM
My mother and father own their own house and also rented a property. He was an estate agent so he dealt with everything to do with the house. Anyway on 4th December he suddenly passed away. We are now having a lot of trouble with the tenant.
She is claiming that she can not afford the rent as she isn't recieving HB. She moved in the end of September meaning her tenancy is up the end of March 2012. She paid the rent and deposit when she moved in and then rent again in October with no problem.
When I contacted her to arrange to collect the rent she said she can't afford it and that my mum will have to serve her with a Section 8 notice.
Now I've been trying to do some digging on Section 8 notices etc and know that we have to have valid reason to serve it to her (especially since she is not in 8 weeks of arrears yet (she will be if she doesn't pay on the 30th December I think) however we have been up to the property and seen that the shed door (attached to the house) has a huge hole in the top. A mutual friend has told us that the kitchen doors and drawers are hanging off and that she has been keeping pets in the house when it is in the tenancy agreement that she wasn't allowed pets. However she spoke to my dad about it and he had said she could keep it in the shed however the mutual friend has stated that there is dog feaces all over the 4th bedroom floor including some with mould growing on it!
My mum wants to arrange an inspection of the property to see if this mutual friends accounts are correct and if they are we can serve her section 8 on ground 12 or 13.
It is 3 weeks since my dads death and all of this has only happened since he died so she is obviously trying to take advantage.
My mum is wanting to sell the house (can't be doing with the hassle of a rented house) so she needs someone to go in and survey the house to get it up for sale (the tenant knows she is wanting to sell it)
How do we go about arranging an inspection of the house or getting a surveyor in?
As you can probably tell we are totally new to this so apoligies if I have repeated anything but any help will be greatly appreciated as this is not what we need 3 weeks after my dads death.
18-12-2011, 19:48 PM
You can only obtain possession under grounds 12/13 if the tenancy agreement says you can - does it? Claims under grounds 12 and 13 are discretionary - a judge has to decide if the breach of contract is sufficient to warrant making someone homeless.
You may not be able to obtain access to the property as the tenant has exclusive possession. If you have an hour or two, read the sticky on a landlords right to access. Tenant certainly has no obligation to let estate agents and viewers into the property - they may not be paying rent but it is still their home until they are legally removed.
Who is the landlords name on the tenacy agreement? Has your mum inherited the property yet or is everything still up in the air?
18-12-2011, 20:03 PM
This is what has been breached in the tenancy agreement:
5.1.4. Not to damage or make any additions or alterations or interfere with any part of the Premises.
5.1.5. To keep the interior of the Premises in a good state of repair and condition, clean and properly maintained, including the doors, window frames and glass in windows, doors and skylights and shall replace all broken glass, light bulbs and fuses. The Tenant shall carry out in the Premises all works of repair that are not the responsibility of the Landlords under this Agreement or by statute.
5.1.9. To allow the Landlords and/or the Landlords' agents, upon prior notice (except in the case of emergency) to enter the Premises at any reasonable time during the daytime, for the purposes of examining the state and condition of the Premises.
5.1.15. To fasten all locks and bolts on the doors and windows when the Premises are empty and at night.
5.1.18. Not to install or change any locks in the Premises without the prior consent of the Landlords, which will not be unreasonably withheld, except in an emergency.
5.1.41. Not to smoke or permit any person to smoke within the Premises
5.1.45. If any rent or any other sum payable under this Agreement is due from the Tenant and remains unpaid for more than 14 days after the due date (whether or not formally demanded), to pay interest on any sum outstanding at the rate of 4% above the base rate for the time being of Barclays Bank from the due date until the date of payment. The interest shall be treated as further rent due to the Landlords.
6.1. The Landlords may re-enter the Premises and terminate the tenancy if:
6.1.1. any of the rent or any other money due by the Tenant to the Landlords is not paid for a period of 14 days from the date on which it was due (whether or not formally demanded);
6.1.2. there is a breach of any of the terms of this Agreement;
I think there are some that she has breached too. Landlords names are my mum and dads (they weren't married but both are named on the tenancy agreement and my mum is named on the title deeds and mortgage too. I think it is still carrying on as normal (she's still having to pay the mortgage but we have requested redemption figure to settle the mortgage from my dad's life insurances)
18-12-2011, 20:13 PM
Your section 6 can not over-rule the Housing Act. They are in the agreemnt in case the tenancy isn't an AST - but this is.
Can you check if the AST has mention of grounds 12 or 13? This is a requirement if you hope to seek possession before the end of the fixed term.
The court shall not make an order for possession of a dwelling-house to take effect at a time when it is let on an assured fixed term tenancy unless
(a)the ground for possession is Ground 2 or Ground 8 in Part I of Schedule 2 to this Act or any of the grounds in Part II of that Schedule, other than Ground 9 or Ground 16 (Which is good - both 12 and 13 are included); and
(b)the terms of the tenancy make provision for it to be brought to an end on the ground in question (whether that provision takes the form of a provision for re-entry, for forfeiture, for determination by notice or otherwise).
18-12-2011, 20:19 PM
Is this what you mean?
This Agreement is an Assured Shorthold Tenancy and the provisions for the recovery of possession in Section 21 of the Housing Act 1988 as amended by the Housing Act 1996 apply.
18-12-2011, 20:35 PM
Sadly not, section 21 relates to the 'no fault' eviction process which can be used once the tenant is out of contract. What you need is something that refers to section 8 of the 1988 Housing Act.
You would seem to have 2 choices (not mutually exclusive)
1) Serve section 8 notice giving 14 days notice (get proof of service) and apply to the court - this will cost you £175 and the court will not be able to grant you possession before the end of March 2012. http://tenancyanswers.ucoz.com/index/ast_tenants_in_breach_of_contract/0-36
2) Serve a section 21 notice giving 2 months notice. This will have an expiry date of the last day of the tenancy agreement. You can not apply to the court until the notice expires, and by that time you will know if your s8 application has been successful. If you need to apply to the court under section 21 then that too will cost you £175 and will take in the region of 6 weeks. http://tenancyanswers.ucoz.com/index/ast_tenants_not_in_breach_of_contract/0-37
18-12-2011, 21:02 PM
Considering the wording of section 7(6)(b) of HA 1988, would the presence of this section 6 (which is pretty standard) in the tenancy agreement allow for grounds 12 and 13 to be used during the fixed term?
18-12-2011, 21:51 PM
I don't believe so as the grounds have to be cited - section 6 doesn't even refer to HA1988 let alone the specific grounds. I have never put it to the test, so I could be wrong.
18-12-2011, 22:03 PM
Sincerest condolences. Appoint a competent litigator to advise you on what needs to be done, and tell them to get on with it at full speed ahead. You don't want any more agg
19-12-2011, 01:10 AM
"How do we go about arranging an inspection of the house or getting a surveyor in?"
All LL can do is request an inspection visit, giving at least 24 hrs Notice in writing. T can refuse and it does not confer any right of entry to LL without Ts express permission.
In your circumstances, consider something like:-
As you may be aware my husband (your joint LL) died suddenly on <date> so I will have to sell the property at the end of your Tenancy. I request you allow a surveyor to inspect & measure the property in preparation for sale, by <date> (mid Jan?) and at a time convenient to you within normal business hours. Please advise an acceptable time/date with contact tel no so surveyor can confirm appointment 24hr prior to visit. I undertake not to undertake viewings by potential purchasers or photos of interior before end of your TA <date> without your further expressed consent. Please reply to me asap on/at tel no/email address.
If T is likely to have 2 months unpaid rent (comp repo) by end of Dec 12 then s8 is prob best course of action with s21 Notice running concurrently.
Suggest you send above letter before any s8 or s21.
19-12-2011, 08:08 AM
Thank you all for the great advice.
Mariner I will give her that letter today.
She pays her rent on the 30th every month and I looked at the TA and she moved in 1st October so she has until 1st April. She paid 30th September, 30th October but hasn't paid 30th November and doubt she will pay Decemeber either. Will that mean that she is in 2 months of arrears from 30th December or 30th January? She did contact me yesterday asking if we would end the contract early if she found another place to rent.
Also if there is damage to the house that she doesn't repair and the dog poo isn't cleaned up can we take that out of her bond?
19-12-2011, 10:20 AM
She pays her rent on the 30th every month and I looked at the TA and she moved in 1st October so she has until 1st April. No, the tenancy will run 1st October to 31st March
She paid 30th September, 30th October but hasn't paid 30th November and doubt she will pay Decemeber either. Will that mean that she is in 2 months of arrears from 30th December or 30th January? If you are refering to ground 8, she needs to have 2 months unpaid, not in arrears, they are different things. As she moved in on 1st of the month, her rent is most likely due 1st of the month. If she didn't pay Nov (1 Dec) and she doesn't pay Dec (1 Jan) then on 2 Jan she is 2 months unpaid. Please see my comments about your ability to use grond 8.
She did contact me yesterday asking if we would end the contract early if she found another place to rent.It would be in your own interests to be as acommodating as possible.
Also if there is damage to the house that she doesn't repair and the dog poo isn't cleaned up can we take that out of her bond?Yes, providing you can prove the damage and level of cleanliness - ie do you have proof it was no worse when she moved in? Is the deposit protected in one of the 3 government approved schemes?
19-12-2011, 11:24 AM
Surely if she got the innitial go ahead to move in ,Shes been awarded HB ? Can you not contact the housing dept to ask to see if they can pay you direct until you evict her ?She has probably squandered the rent cheque on christmas .My condolencies about your Father
19-12-2011, 13:28 PM
It is in OPs interest to agree to allow T to surrender early in this case - provided
T gives 1 months notice in writing
T allows surveyor to measure up as requested
rent is paid up to date of Surrender
property is returned in satis, clean condition
T signs Deed of Surrender on last day & vacates same day.
Thus no need for expensive Court fees & further stress.
19-12-2011, 16:02 PM
We have photos of the inside of the house before she moved in so I'm guessing that counts as proof. I think my dad also did an inventory that she signed too. I will have to try and dig them out ... I know I came across the tenancy agreement and I put the inventory with it but unsure if I passed it on to the other letting agency (the one who is dealing with all the properties my dad managed, he was an estate agent) or whether I have it at my mums house.
Little bit of a breakthrough today. She has paid £300 towards the rent (still owes £150) and has said she will try and pay the rest ASAP. Also a quick question what date goes on the reciept? Is it 1st Nov-30th Nov or 1st Dec-31st Dec?
Housing benefit in our district is running 2 months behind with claims :(shake): I had to go to the benefits/council tax offices today to help sort my mums claim out and they said that they are currently working on the middle of Septembers claims and working there way through so the T should have her moeny sorted soon as she said she claimed beginning of October.
I am meeting with the T tomorrow to arrange a payment plan until she gets her HB through.
She is refusing to give my mum a new key for the property. She said she will hand all 3 (new) keys in when she leaves the property. She said she had been to citizens advice and they said that she doesn't have to give my mum a key. My dad was an estate agent and he ALWAYS had a copy of the house keys, incase the T lost their keys or took off without informing the landlord. Should I still push for a spare key or is it not worth it?
I have mentioned to her about getting a surveryor in and she said thats ok and just to let her know ... I will be dropping the letter off with her tomorrow.
11-02-2012, 07:10 AM
We have a tenant who has mututally agreed to end their contract early on the 31st January 2012. The contract was not due to end until 1st April 2012. The tenant and the landlord signed a written agreement to state that they had agreed the end of tenancy agreement but has not returned the keys yet and is fobbing the landlord off with excuses everyday, such as little one is not well, I think I have shingles etc. Can the landlord now change the locks as it is almost 2 weeks since the tenacy ended and the landlord has a new tenant moving in on 20th February? Many thanks
11-02-2012, 08:33 AM
First and most importantly, whether the tenancy has ended or not, the landlord cannot change the locks. He must obtain a court order to get possession.
Whether the tenancy has in fact come to an end depends on the nature of the agreement. The only instrument (apart from a new lease) which can actually end a tenancy is a deed which takes effect immediately. Any other instrument can (so long as it complies with section 2 of the Law of Property Miscellaneous Provisions Act 1989) only operate as an agreement to surrender which must be completed by an actual surrender. Until the actual surrender takes place the tenancy continues. The actual surrender can be completed by executing a deed of surrender or by some unequivocal acts by both parties.
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