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dhphoto
28-06-2005, 10:45 AM
I am the landlord of a flat with an old, registered tenant (there is no existing written tenancy agreement).

She won't pay her (measly, protected) rent. I can't find out why.

What is my legal position with regard to eviction, how long do I have to wait, what processes do I have to go through?

Many thanks in advance

David

davidjohnbutton
28-06-2005, 13:33 PM
You need to serve a notice to quit giving one months notice. The notice must be in this format http://www.oyezformslink.co.uk/forms/templates/01120.pdf

DO NOT GET THIS NOTICE CONFUSED WITH THOSE REQUIRED FOR AST'S AND AT'S (ASSURED SHORTHOLD AND ASSURED TENANCIES) these require different formats of notice and you should NOT use this notice to quit for those.

You then issue a possession claim at the local county court. Note again, do not confuse the forms required with AST/AT's - they are different.
The possession claim form is available on the county court website www.courtservice.gov.uk and you can claim the arrears and costs as well.

I make this reply on the basis that your tenant is a regulated one under the Rent Act 1977 and the rent is registered bi-yearly by the rent officer.

dhphoto
28-06-2005, 13:47 PM
Many thanks - how long do I have to wait after the rent is due before I can start proceedings (she 'pays' quarterly)?

David

davidjohnbutton
28-06-2005, 14:45 PM
You can sue now for any unpaid rent separately from the possession proceedings but you must warn her first (courtesy rather than a legal requirement). If you issue a Notice to Quit, you can only take proceedings after the NTQ has expired.

Note that the possession criteria is different on Regulated Tenancies - the judge does not have to make a mandatory possession order at all for rent arrears and can suspend or vary the payment terms and/or the order. The usual outcome is a suspended possession order on terms that the rent is paid plus something off the arrears each week/month etc. and on default, the landlord can invoke the PO and go for eviction.

dhphoto
28-06-2005, 15:30 PM
Once again many thanks but how long do I have to wait after the rent is due before I can start proceedings?

A day?

A week?

A month?

A quarter?

davidjohnbutton
28-06-2005, 16:27 PM
You can sue as soon as you like after the rent is due - 1 minute after it is due if you like. This has to be balanced though against a test of reasonableness and really, you should have let the tenant know before that you intend to sue for outstanding rent if the full amount is not received by x date. If you don't do this, or you don't offer the tenant a reasonable opportunity to present you with the rent before you sue, the judge can either throw your summons out or deny you the court fee.

On a notice to quit though, you can only sue for possession AFTER the notice has expired (i.e. 1 month)

dhphoto
28-06-2005, 16:53 PM
You can sue as soon as you like after the rent is due - 1 minute after it is due if you like. This has to be balanced though against a test of reasonableness and really, you should have let the tenant know before that you intend to sue for outstanding rent if the full amount is not received by x date. If you don't do this, or you don't offer the tenant a reasonable opportunity to present you with the rent before you sue, the judge can either throw your summons out or deny you the court fee.

On a notice to quit though, you can only sue for possession AFTER the notice has expired (i.e. 1 month)

Thanks, so although the tenant has paid quarterly for over 40 years (at a VERY,VERY low rent) I should probably leave it about a month before I get courts etc involved? (I would do ANYTHING to get rid of this person)

Any advice gratefully received

David

martin_n
28-06-2005, 21:07 PM
As Davidjohnbutton said, you must warn the tenant first before taking to court. If the rent is too low then you should contact rent officer to review the rent if have not done so, this will maybe increase the rent a bit but don't hope that the rent would be half of the market rate.

From the experience, there is a very little chance to evict a regulated tenant. I suggest you to read the booklet about regulated tenant and hope it helps a bit (the booklet is available on most local coucil websites or do a search on this forum, somone posted a link before).

lucid
29-06-2005, 02:28 AM
Have you tried to find out why the rent has not been paid? This is a tenant of over 40 years, I would imagine they know their status. There could be a legitimate reason for non payment. When was the rent last registered with the rent officer? Is that the rent that was being paid? Did you serve a valid notice of increase after the rent was registered?

If the tenant has been paying more than the last registered rent, or the registration was not followed by a valid notice and the increase was paid, the increase would not be valid. Thus creating an overpayment which can reclaimed for 2 years. The tenant can immediately reclaim this by deduction of present rent, there is no need for them to go to court for this, only if they want it all back in 1 go.

Of course all of this may not be applicable to you...BUT if you rush into court (where possession is unlikely-discretionary) without knowing or showing an initiative to get the facts you could get stung in the tail!

If for instance the above scenario were true and you went to court not only would you get 2X costs but get to pay 2 years overpayment in 1 go never mind any possible counter claim. Maybe worth a bit of investigation before jumping the gun.

dhphoto
29-06-2005, 05:00 AM
The reason she is not paying is (probably) because I gave just started trying to get the Rent Office to sent a more sensible rent. I tried 2 years ago but in their wisdom they set ti the same as back in 1999.

I can't give you precise details, but I can tell you this lady is living in one of the premier squares in the west end of London and paying considerably less than tenants we have in a small flat in Hendon. Less than half as much actually.

She is a bloody-minded old bird and as soon as I try and get a penny more out of her she resorts to her legal team!

This is one of those tenancies that is not fair on the landlord!

I need to know how long I reaslitically have to wait before I can start trying to make things awkward for her if she doesn't pay her measly rent.

David

lucid
30-06-2005, 03:20 AM
ok so you have previously had the rent registered by the rent office, who are bound by the maximum fair rents order, which limits the increase by the change in RPI over 2 years +5%.

But did you follow this newly registered rent (2 years ago) by a valid notice of increase, correctly served? simply re registering the rent is not enough to validate the increase, a notice must be served, assuming the tenancy is no longer in the contractual stage.

If the dates are even slightly out relating to when the notice is served, the date of registration or the date the increase takes effect it will not be valid.

DJB has explained in an earlier post the process re. possible possession, but the key thing for you is to write to the tenant to ask why the rent is not being paid first.

But did you follow the correct procedure following the registration of rent 2 years ago and or more recently if there has been another registration?

dhphoto
30-06-2005, 05:35 AM
The rent was set correctly (not by me) in 1999. I applied again in 2003 only for the rent to be set at the same level, therefore meaning no increase AT ALL from 1999-2005 (during this time the property value has doubled).

I have just applied to the rent office again only to be told it is too soon, even though I applied in June 2003, their reply was not forthcoming until late November 2003 and now I can't re-apply until 2 years have elapsed, so I lose yet another 6 months. This is quite the most ridiculous and unfair situation I could be in.

I am not a wealthy person but I have one real asset - this property, which I can neither sell nor get a sensible rent for, while my family struggle.

Ridiculous

lucid
30-06-2005, 14:40 PM
From reading your posts I get the impression that you have misinterpreted the procedure of rent registration re. rent act tenancies. firstly I suggest you download and read the following from the OPDM website regarding regulated tenancies:

http://www.odpm.gov.uk/stellent/groups/odpm_housing/documents/downloadable/odpm_house_601819.pdf

A new rent can be registerted every 2 years but the landlord may apply 3 months in advance. The new registration will be then 2 years after the last. I assume the 3 months is to allow for administration etc. You need to look at your last certificate of fair rent and check the date of registration, then add 2 years that will be your earliest date for a new registration but you may apply 3 months before. From what you say in your post it appears you just have to wait until late August this year before re applying thats all not another 2 years.

The registration MUST be followed by a statutory notice of increase. In order for the notice to be valid the correct form must be used, and filled in correctly with regard to names, addresses, dates of service and registration including the date on which the new rent takes effect. This could be different to the date of registration depending on when the notice was issued. If it is not valid the tenant need not pay the increase.

Once again I ask did you (not the rent officer) serve a statutory notice of increase on the tenant when you previously registered the rent in 1999 and 2003?

And did the tenant pay the rent levels set in 1999 and 2003?

If for example no notice was issued by you in 1999 or 2003 then the tenant need only pay the rent set the last time it was registered and issued with a valid notice. So maybe your last valid registration and notice was say 1997, the tenant could reclaim 2 years of the difference between the 1999/2003 level from the 1997 level assuming they paid that 1999/2003 level and no notice was issued in 1999 or 2003.

dhphoto
01-07-2005, 04:16 AM
I wasn't the landlord when the increase was set in 1999.

There was no increase in 2003 so no notice was required.

Assuming I do get some increase this year, which form is used for this notice please?

David

lucid
01-07-2005, 15:51 PM
Form no.1 of the rent act 1977 (forms etc.) (amendment) regulations 1987 (as amended)

RR22A form printed by Oyez.

Regardless of whether you were the landlord in 1999 the rules regarding notices of increase apply. If the rent went up in 1999 a notice was required. If no notice was issued in 1999 then one would be required in 2003 as the rent remained the same.

(N.B if no notice were issued in 1999/2003 the tenant need only pay the amount that the rent was last registered at that a valid notice was issued to the them from whoever was the landlord - so for example if the last valid notice was served on a registration back in say 1997 at £50 per week but your registrations without a notice in 1999/2003 were £80 per week and the tenant has been paying the £80, the tenant need only pay £50 until a valid notice at £80 is served. And can reclaim 2 years of the difference between the £80 and £50 ie. £30 per weeks worth for a period of 2 years 104 x £30 and deduct this amount from the rent presently due until the overpaynent is covered.Assuming it was you who has landlord for the past 2 years. Also note that the deductions will be at the £50 weekly rate not £80 until a valid notice at the £80 level is served.)

So you need to find out from the previous landlord what notices were issued if possible. Did you not check this when you aquired the property?
The rent office will have no record of this whatsoever so there is no point in contacting them except if you do not know if there was an increase in 1999. Though this should be on the 1999 certificate assuming you have a copy, if not the rent office can provide one for a small fee.

Assuming the tenant has been paying the 1999/2003 level there could still have been an overpayment if no notice was issued in 1999. You should write to the tenant to request why the present rent is not being paid. the crucial thing is to find out if there was a notice issued in 1999 if the rent went up then.

dhphoto
01-07-2005, 17:29 PM
Thank you for that, I cannot believe this old witch has the 'wood' over me still!

I inherited the property from my mother in 1999 and do not know if the appropriate notice of increase was served at that time and do not intend to 'rake up the coals' unless I have to!

I am very suprised I needed to submit a notice of NO increase, that is just mad.

If there is an increase (hopefully) this time I will ensure I find the form (is it available online?) and serve it properly!

I am very grateful for your input. This is a really SILLY law and I can't believe I could still get burned!

David

lucid
01-07-2005, 17:42 PM
note i amended my previous post to give you an example.

you dont necessarily have to serve a notice if there was no increase, the point is that you do not know when the last valid notice was served, especially whether there was ever a notice served on the 1999 registration if it went up then.

Although you may not like or agree with the law. The law is the law. The only thing you can do is to find out what are your roles and responsibilites as the landlord of a regulated tenancy. You have had 7 years to aquaint yourself with procedure, the booklets have always been available either from the rent office, local councils or housing offices or online. Alternatively from advice centres or solicitors.

I hope the information has been of some use to you, but it is your responsibility as a landlord, unless you have an agent acting on your behalf, to follow the correct procedure according to the relevant acts of parliament that cover the tenancy you have.

dhphoto
01-07-2005, 17:48 PM
Is there a statute of limitations?

Can I serve her now anyway with a notice just in case even though the last review was in 2003?

Thanks

David

lucid
01-07-2005, 18:20 PM
Crucially it is important to find out when the last notice was served? do you have any record from back in 1999? can you find out when the last valid notice was served?

All i would think you can do is serve a notice on the 2003 level possibly from the point of an increase from the pre 1999 rent registration. But its tricky because you don't know if one was served that is valid from 1999. Because the last valid level to increase from is the one that a valid notice was issued on.

You really need to find out whether this is the reason no rent is being paid... i could be totally off mark here and the tenant may have some other reason.

If this is the reason I am not sure whether the tenant would have to inform you or not..having examined the act it says that re the overpayment if the amount is not recoverable from the landlord the tenant can without predjudice recover it by means of deduction of present rent. Only having to resort to the courts if they want the full amount back in 1 go and you refuse. (not advisable as you would then be stung for all the costs...several £000's)

The difficulty you have is if you go to court for possession or recovery of arrears it may well then all come out and if there has been an overpayment due to no notices you are in a no win situation.

You really need to write to the tenant and ask why they are not paying..and attempt to look into any old records your mother or solicitors or previous managers of the property have.

dhphoto
01-07-2005, 18:54 PM
Regret mother is deceased, hence the inheritance!

As a hypothetical, what is to stop an 'unscrupulous' landlord claiming that the appropriate notice(s) was/were indeed served (a copy could easily be produced) and was sadly lost in the post (which one would never actaully know). Is is stamped by an official or merely sent in the post?

This is really new stuff to me and TOTALLY unfair law as far as I can see.

David

lucid
01-07-2005, 19:16 PM
"As a hypothetical, what is to stop an 'unscrupulous' landlord claiming that the appropriate notice(s) was/were indeed served (a copy could easily be produced) and was sadly lost in the post (which one would never actaully know). Is is stamped by an official or merely sent in the post?"

A very long stay at her majesty's pleasure for attempting to pervert the course of justice...get the picture!

If a there was a dispute the matter would be referred to the courts.. firstly your mother would have had to sign the form and there would have to have been suitable, undisputable proof of service.

All you can do is serve notice at the present rent or try to. This will validate the present rate and at least reduce the time of overpayment if any. ie. at the present rate rather than any previously set level.

I would not even think about what you suggested in your hypothetical as you would be in very deep sh*t if the judge even had sniff that you were attempting to forge documents.

dhphoto
01-07-2005, 19:49 PM
I get your point!

Fact is the parties who dealt with this are now dead and I'm stuck with it.

What I propose is to pursue an increase when I can (probably November) and then make sure that is served properly - I don't see what else I can do. The documents may well have been served at the time but I just don't know, and I certainly don't want to stir up a sleeping giant - I simply couldn't afford the back rent, it would bankrupt me.

Wish I could just sell the damn thing, but it would only be worth a fraction of its value with a Reg. Ten.

D