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View Full Version : Landlord claims that rent is in arrears; how to prove it's not?



nembarie
11-02-2008, 10:11 AM
Good morning,

Firstly, sorry if I've posted this to the wrong board.

My partner is an assured tenant and has rented the same property for the last 16 years, he's always had a good relationship with his landlord.
November 07 the landlord emailed asking could he come over for "a general chat" and to see how the house is - the landlord by the way lives in Hong Kong and dosen't come over very often. During his visit he told my partner that "he didn't think" he'd been receiving all of his rent since April 07 (approx half), at the time the council had been paying all but £75 a month which my partner has a DD setup to pay the landlord the difference, so that was being paid no problem.
My partner has asked the council to provide a statement listing everything that has been paid to the landlord, so far though they haven't sent anything back. Two weeks after the landlord's visit he emailed my partner with a breakdown of what has been paid to him, a couple of months entries he couldn't verify as "he couldn't find his statements"
Two weeks later 13/12/07 my partner received a Section 8 detailing arrears as far back as 2004 - shocked by this as he did not know the arrears went back this far, we felt we had to comply with the section 8 before the 8/01/08 which we did all arrears paid in full and 2 months in advance so he wouldn't be in the same postition again.
Last week 05/01/08 my partner receives a court summons of repossesion for breaches in clauses 8,10 and 11 I think this is correct certainly clauses 8 and 11 were mentioned, we are now at our wits end! my partner has an appointment today with the CAB to establish our rights.
I think this is so unfare considering that he didn't even know he was in arrears as the landlord had not said anything for almost 3 years!. My partner has emailed him a couple of times but he does not respond.
Any additional advise/rights on where he stands, would be appreciated.

Sorry for the long winded post.

jeffrey
11-02-2008, 10:20 AM
1. Liability for rent rests on T, even if Council pay part.
2. Grounds [not "clauses"] 8/10/11, in Schedule 2 to Housing Act 1988, need to be proved by L. He has to show non-payment; otherwise, it is not for T to show payment.
3. If T cleared all arrears, only g11 (persistent late payment) would survive- and it is only a discretionary ground anyway.
4. Gather together all T's evidence re rent demands and payments, to evidence (if necessary) that everything payable was indeed paid.
5. Don't panic.

nembarie
11-02-2008, 10:27 AM
Hi Jeffrey,

Thank you for your advise and taking the time to reply.

H

Colincbayley
11-02-2008, 10:38 AM
Consider also that the LL may well be 'trying it on' to evict an assured tenant and sell the property.

Bel
12-02-2008, 09:22 AM
As long as you are no longer in arrears and defend any court procedure I'm sure you will be ok as judges will always be fairer to tenants than landlords.

Keep us posted.

nembarie
12-02-2008, 12:57 PM
As long as you are no longer in arrears and defend any court procedure I'm sure you will be ok as judges will always be fairer to tenants than landlords.

Keep us posted.

Hi Bel,

Many thanks for assurance - the last couple of months have been hell.

The court hearing on 10th March so I'll keep you posted.

Thank you again.

N

attilathelandlord
12-02-2008, 14:05 PM
The judge is unlikely in the extreme to give a possession order on discretionary grounds, especially an assured tenant.

I wouldn't worry too much if I were you. Make sure the judge knows the tenancy is an assured one.

jeffrey
12-02-2008, 14:10 PM
The judge is unlikely in the extreme to give a possession order on discretionary grounds, especially an assured tenant.

I wouldn't worry too much if I were you. Make sure the judge knows the tenancy is an assured one.
Not so fast, my fine friend.

"Assured tenancy" is merely a generic phrase. It means, for present purposes, ANY tenancy to which the 1988 Act applies.

BUT
Does this case involve:
a. an Assured Shorthold Tenancy; or
b. a Standard Assured Tenancy?

We don't know that yet.

nembarie
12-02-2008, 14:22 PM
Not so fast, my fine friend.

"Assured tenancy" is merely a generic phrase. It means, for present purposes, ANY tenancy to which the 1988 Act applies.

BUT
Does this case involve:
a. an Assured Shorthold Tenancy; or
b. a Standard Assured Tenancy?

We don't know that yet.

Hi Jeffrey,

It is an Assured tenancy - my partner moved in in 1992 but took it over from his late partner who moved in in 1985

There is no formal tenancy agreement in place the claim for posession states that it is an 'oral assured tenancy'.

Hope this helps,

Thank you again for all help and advice given.

jeffrey
12-02-2008, 14:27 PM
Hi Jeffrey,

It is an Assured tenancy - my partner moved in in 1992 but took it over from his late partner who moved in in 1985

Hope this helps,

Thank you again for all help and advice given.
...in which case 1988 Act does not apply at all. The tenancy must be governed by Rent Act 1977, possibly with Housing Act 1980.
Ites 2 and 3 in my first post would generally still be true but with different cross-references.

nembarie
12-02-2008, 14:36 PM
...in which case 1988 Act does not apply at all. The tenancy must be governed by Rent Act 1977, possibly with Housing Act 1980.
Ites 2 and 3 in my first post would generally still be true but with different cross-references.

Hi Jeffrey,

I added this bit in after I posted.

"There is no formal tenancy agreement in place the claim for posession states that it is an 'oral assured tenancy'. "

I'm not that up on the law so I don't know if this makes a difference.....

jeffrey
12-02-2008, 14:39 PM
Not sure yet. I don't know if 1977/1980 Assured Tenancies can be created orally. More follows.

Bel
12-02-2008, 15:48 PM
Hi Jeffrey,

It is an Assured tenancy - my partner moved in in 1992 but took it over from his late partner who moved in in 1985

There is no formal tenancy agreement in place the claim for posession states that it is an 'oral assured tenancy'.

Hope this helps,

Thank you again for all help and advice given.



Surely it depends on whether the tency started in 1985 and was assigned, or a completely new tenancy began 1992. This will depend on circumstances if there was no paperwork, perhaps

Try the tenancy checker here:

http://england.shelter.org.uk/advice/advice-6988.cfm

jeffrey
12-02-2008, 15:53 PM
Surely it depends on whether the tency started in 1985 and was assigned, or a completely new tenancy began 1992. This will depend on circumstances if there was no paperwork, perhaps

Try the tenancy checker here:

http://england.shelter.org.uk/advice/advice-6988.cfm

"...took it over" sounds like an informal arrangement, not new tenancy.

Grange
12-02-2008, 16:05 PM
We discussed with our judge only this morning that we had no evidence of creation of Rent Act 77 protected tenancy, so assumed it had been created informally i.e. orally. Does this help?

nembarie
12-02-2008, 18:11 PM
Hi everyone

Thank you for your valuable input.

I thought had better check out the details with my partner to make sure my facts were correct before you all looked at the different rent acts etc.

The tenancy was a new one verbally agreed with the landlord after his then partner had died (it was not a case of him succeeding his partner). It was a verbal agreement between him and the landlord, based on "you can live here for £xxx pcm". The verbal areement was made in about March 1996, just after the partner died. The landlord has accepted that the tenancy is an assured tenancy and the Possession Claim states the tenancy type is "Oral Assured".

Thanks again and I hope this clears up the issue of what type of tenancy it is tenancy.

N

jeffrey
13-02-2008, 09:14 AM
OK. So, as at 1996, it was a brand-new letting agreed orally. There being no s.20 Notice, which at that time would have been essential to make it an AST, it must be a Standard Assured Tenancy (as long as none of the exceptions in Schedule 1 to Housing Act 1988 applies).

nembarie
14-02-2008, 10:49 AM
UPDATE

LL emailed my partner this morning to advise that court case has now been dropped as Section 8 notice has been complied with.

Just a thank you again for all support and advice given especially Jeffrey.

N:)