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    • helpneeded2017
    • By helpneeded2017 7th Jun 17, 2:50 PM
    • 11Posts
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    helpneeded2017
    Possesion Order Question
    • #1
    • 7th Jun 17, 2:50 PM
    Possesion Order Question 7th Jun 17 at 2:50 PM
    Hiya all,

    Need some help for my brother,

    My brother has a rental contract that ends on July 2nd, he has signed a contract for a new house which he is due to move in on September 1st- it is cheaper- he has two children a one year old and a three year old.

    He has rental arrears of £2250 but has put a plan to the LL which would see these gone by September 1st when he moves. This was rejected by the LL and the last correspondence was that he had said he would try and see if he could get the September date earlier, he has just returned to full time work following suffering severe depression following an attack on him ( that has been investigated by Police so has a ref ) I am of course worried about him from a mental state point of view

    Yesterday he received a possession court date for July 20th ( request made on June 1st )

    I am going to offer my help in his defense but have a few quick questions now ( as unsure ):

    - Can a possession movement be made when he had a letter from LL stating for him to move on July 1st ( dated 05/06 so after the possession order application was made )and we are not at that date yet? The section notice he was given was for July 1st as well, He has not refused to move as the date has not been reached
    - Is it likely he will be made homeless bearing in mind he will be moving out by September 1st and the rent arrears will be paid by then?
    - The LL did not protect his deposit on time and lied in writing to him he had before admitting he did it 200 days later than he stated, is it worth putting in a letter now asking for the deposit ( in full ) + compensation is taken off the arrears owed? Is there a templateicon letter for this?

    Many thanks
Page 1
    • Pixie5740
    • By Pixie5740 7th Jun 17, 3:03 PM
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    Pixie5740
    • #2
    • 7th Jun 17, 3:03 PM
    • #2
    • 7th Jun 17, 3:03 PM
    If the fixed term tenancy ends 2nd July 2017 then that is when it ends. A letter from the landlord cannot compel your brother to move out 1st July 2017 unless your brother agrees to a mutual surrender of the tenancy so that it ends a day earlier than the fixed term. It does seem strange that the landlord would try and end the tenancy just a day earlier so what was the exact start date of your brother's tenancy?

    What sort of notice has your brother been served? A Section 21 or a Section 8 notice? The landlord doesn't have to wait until the fixed term has served notice. The letter the landlord sent seems to be irrelevant but the notice is not.

    For your brother to end up homeless the landlord would have to have served valid notice, gone to court and been awarded a possession order and then get bailiffs to physically remove your brother from the property. I doubt that could all be done in less than 2 months.

    Shelter has letter templates your brother can use to claim for compensation which would be between 1 and 3 times the value of the deposit.

    https://england.shelter.org.uk/housing_advice/tenancy_deposits/tenancy_deposit_compensation_claims

    Keep in mind that if your brother has caused damage over and above fair wear and tear the landlord can still take him to court even though the deposit wasn't protected. Once your brother's fixed term contract ends he will start a periodic tenancy, either Contractual or Statutory, and it is important that your brother serves notice correctly to end the tenancy.

    See G_M's guide to Deposits and Ending/Renewing an AST for further information.
    Annual income twenty pounds, annual expenditure nineteen pounds nineteen and six, result happiness. Annual income twenty pounds, annual expenditure twenty pounds nought and six, result misery.
    • helpneeded2017
    • By helpneeded2017 7th Jun 17, 3:19 PM
    • 11 Posts
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    helpneeded2017
    • #3
    • 7th Jun 17, 3:19 PM
    • #3
    • 7th Jun 17, 3:19 PM
    Many thanks,

    I am seeing my brother over the weekend but I believe it was a section 8 he was served, what would determine whether it is a valid notice?

    I am hoping that common sense prevails and at court he is allowed to stay in until September 1st when he will be moving out anyway especially as he has two young children and is pretty vulnerable if truth be told

    What does he have to serve notice his end after July 1st?
    • Guest101
    • By Guest101 7th Jun 17, 3:24 PM
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    Guest101
    • #4
    • 7th Jun 17, 3:24 PM
    • #4
    • 7th Jun 17, 3:24 PM
    Many thanks,

    I am seeing my brother over the weekend but I believe it was a section 8 he was served, what would determine whether it is a valid notice?

    I am hoping that common sense prevails and at court he is allowed to stay in until September 1st when he will be moving out anyway especially as he has two young children and is pretty vulnerable if truth be told

    What does he have to serve notice his end after July 1st?
    Originally posted by helpneeded2017


    The possession order wont be for before Sept 1st anyway, he just needs to ensure he gives correct notice to leave on Sept 1st.


    Needs to serve notice on July 1st really*
    • helpneeded2017
    • By helpneeded2017 7th Jun 17, 3:27 PM
    • 11 Posts
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    helpneeded2017
    • #5
    • 7th Jun 17, 3:27 PM
    • #5
    • 7th Jun 17, 3:27 PM
    Thanks for the reply,

    I am confused now by the process ( I have to admit to being clueless on this )

    He goes to court on the 20th July, if it goes against him and they grant possession to the LL why would the order not be before September 1st?
    • Pixie5740
    • By Pixie5740 7th Jun 17, 3:40 PM
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    Pixie5740
    • #6
    • 7th Jun 17, 3:40 PM
    • #6
    • 7th Jun 17, 3:40 PM
    Many thanks,

    I am seeing my brother over the weekend but I believe it was a section 8 he was served, what would determine whether it is a valid notice?

    I am hoping that common sense prevails and at court he is allowed to stay in until September 1st when he will be moving out anyway especially as he has two young children and is pretty vulnerable if truth be told
    Originally posted by helpneeded2017
    There are several grounds that a Section 8 notice can be issued using. My guess is that the landlord has used ground 8* which is a mandatory ground for eviction but you'll need to check your brother's paperwork to be sure.

    *Used when the rent is still in arrears on the date that the Section 8 notice is served and on the date of the hearing. Where rent is due weekly or fortnightly, at least eight weeks' rent must be in arrears. Where rent is due monthly, at least two months’ rent must be in arrears. Where rent is due quarterly, at least a quarter's rent must be in arrears by more than three months. Where rent is due yearly, at least three months' rent must be in arrears by more than three months.

    I highly recommend that you contact the housing charity Shelter for advice 0808 800 4444.

    What does he have to serve notice his end after July 1st?
    Originally posted by helpneeded2017
    You find that information in the Ending/Renewing an AST link I posted earlier. Again you'll need to check your brother's paperwork to find out if he will have a Statutory or Contractual Periodic Tenancy.
    Annual income twenty pounds, annual expenditure nineteen pounds nineteen and six, result happiness. Annual income twenty pounds, annual expenditure twenty pounds nought and six, result misery.
    • saajan_12
    • By saajan_12 7th Jun 17, 3:41 PM
    • 557 Posts
    • 362 Thanks
    saajan_12
    • #7
    • 7th Jun 17, 3:41 PM
    • #7
    • 7th Jun 17, 3:41 PM
    Hiya all,

    Need some help for my brother,

    My brother has a rental contract that ends on July 2nd, he has signed a contract for a new house which he is due to move in on September 1st- it is cheaper- he has two children a one year old and a three year old.

    He has rental arrears of £2250 how many month's rent is that?but has put a plan to the LL which would see these gone by September 1st when he moves. This was rejected by the LL and the last correspondence was that he had said he would try and see if he could get the September date earlier, - may be try harder to get an earlier date -
    if the new property is cheaper then he'd save money for those two months and he may be liable for bailiff / court costs the LL incurs, so might be cheaper all round to move out earlier.
    he has just returned to full time work following suffering severe depression following an attack on him ( that has been investigated by Police so has a ref ) - sorry to hear that. I am of course worried about him from a mental state point of view

    Yesterday he received a possession court date for July 20th ( request made on June 1st )- is this a court date or a vacation date after a decision has been made?

    I am going to offer my help in his defense but have a few quick questions now ( as unsure ):

    - Can a possession movement be made when he had a letter from LL stating for him to move on July 1st ( dated 05/06 so after the possession order application was made )and we are not at that date yet? The section notice he was given was for July 1st as well, He has not refused to move as the date has not been reached- a possession order can be granted based on rent arrears, even if he hasn't yet refused to move.. the letter sounds pretty irrelevant as the posession order gives a later date to move out

    - Is it likely he will be made homeless bearing in mind he will be moving out by September 1st and the rent arrears will be paid by then?- once a possession order is granted, he will still have to move out regardless of arrears being cleared or not.
    What does the 20July refer to? If that is a move out date,
    and brother fails to move out, the LL may order bailiffs which could take 1-8 weeks, so he may well be homeless in the interim.


    - The LL did not protect his deposit on time and lied in writing to him he had before admitting he did it 200 days later than he stated, is it worth putting in a letter now asking for the deposit ( in full ) + compensation is taken off the arrears owed? Is there a templateicon letter for this? - Did the LL eventually protect the deposit? If so, the compensation may be at the lower end of the 1-3 times penalty. The deposit can come off the arrears through a counterclaim. The penalty may have to go through another court stream if they don't come to a settlement. Note the LL can still claim for damages as well as court / bailiff costs on top of the rent arrears regardless of the deposit protection.

    Many thanks
    Originally posted by helpneeded2017
    1) What type of notice was served?

    2) What does the 'possession court date 20July' say exactly?
    - if this is a court date, then brother should present any evidence of offers to clear the arrears and explain his imminent 1 Sept move out as well as his explain his situation with young kids, in the hope they extend the move out date.
    - If this is a move out date, then brother should try to move out I think. He can wait for bailiffs but brother will be liable for their costs and if they attend before 1 September, he will have a very stressful move out and end up homeless. The council may help given the kids but may not given the rent arrears, I don't know.
    • G_M
    • By G_M 7th Jun 17, 3:54 PM
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    G_M
    • #8
    • 7th Jun 17, 3:54 PM
    • #8
    • 7th Jun 17, 3:54 PM
    He has rental arrears of £2250 but has put a plan to the LL which would see these gone by September 1st when he moves. This was rejected by the LL

    Then the best solution is to make another, better, offer to the landlord.

    Yesterday he received a possession court date for July 20th ( request made on June 1st )
    I understand this is following a S8 Ground 8 Notice for rent arrears yes?

    I am going to offer my help in his defense but have a few quick questions now ( as unsure ):

    - Can a possession movement be made when he had a letter from LL stating for him to move on July 1st ( dated 05/06 so after the possession order application was made )and we are not at that date yet?
    Yes. Provided the rent arrears are at least 2 months rent
    a) when Notice served and
    b) on court date
    the court has no choice but to grant possession


    The section notice he was given was for July 1st as well, He has not refused to move as the date has not been reached
    I'm guessing the landlord also served a S21 Notice timed for the end of the tenancy. As a belt ad braces approach.


    - Is it likely he will be made homeless bearing in mind he will be moving out by September 1st and the rent arrears will be paid by then?
    Yes.

    - The LL did not protect his deposit on time and lied in writing to him he had before admitting he did it 200 days later than he stated, is it worth putting in a letter now asking for the deposit ( in full ) + compensation is taken off the arrears owed? Is there a templateicon letter for this?
    Originally posted by helpneeded2017
    No.
    Though the tenant could apply for a penalty of up to 3 times the deposit. Since it appears the deposit is now protected, the court would likely award less than 3 times (1 time?) for late protectio.
    • Guest101
    • By Guest101 7th Jun 17, 4:04 PM
    • 14,477 Posts
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    Guest101
    • #9
    • 7th Jun 17, 4:04 PM
    • #9
    • 7th Jun 17, 4:04 PM
    Thanks for the reply,

    I am confused now by the process ( I have to admit to being clueless on this )

    He goes to court on the 20th July, if it goes against him and they grant possession to the LL why would the order not be before September 1st?
    Originally posted by helpneeded2017


    Because the possession order doesn't take effect on the same day, typically it's 14 days. But this can be mitigated further by application.
    • helpneeded2017
    • By helpneeded2017 7th Jun 17, 4:10 PM
    • 11 Posts
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    helpneeded2017
    Thanks Guest101

    So is my best bet for now to get him to make an improved offer to the LL when I see him Friday?

    What circumstances can mitigate the process to make it longer?
    • Guest101
    • By Guest101 7th Jun 17, 4:34 PM
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    Guest101
    Thanks Guest101

    So is my best bet for now to get him to make an improved offer to the LL when I see him Friday?

    What circumstances can mitigate the process to make it longer?
    Originally posted by helpneeded2017


    Assuming he was not served a s.21 notice, a s.8 notice would likely fail if he brought the arrears down to below one months rent.


    Mitigating circumstances are actually quite good, having children and a pending tenancy could help the court make an extended order.


    Or as others have said await bailiffs. It would be tight but a 4 week turn around could work out ok. (14 days from hearing and 28 from order would take him to sept)
    • helpneeded2017
    • By helpneeded2017 7th Jun 17, 5:23 PM
    • 11 Posts
    • 1 Thanks
    helpneeded2017
    Hiya all,

    Some good news,

    He can actually move out into his new property on the 1st August now so hoping that will sway it his way especially with the time frames involved
    • Pixie5740
    • By Pixie5740 7th Jun 17, 5:26 PM
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    Pixie5740
    That is good news. Your brother must ensure that he ends his tenancy correctly either by mutual surrender with the landlord or by serving his own notice. Ideally your brother wants to avoid going to court as the judge can award the court costs against him.
    Annual income twenty pounds, annual expenditure nineteen pounds nineteen and six, result happiness. Annual income twenty pounds, annual expenditure twenty pounds nought and six, result misery.
    • helpneeded2017
    • By helpneeded2017 7th Jun 17, 6:13 PM
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    helpneeded2017
    Okay so am going to see him tomorrow and will get him to serve his notice

    Just so I am aware with regards to the deposit and the letter there if he writes asking for it now will it be used against the arrears or can he ask for it himself? Not sure how it works- he has not asked me but just thinking of questions that may come up with him with regards to costs of the move
    • Cakeguts
    • By Cakeguts 7th Jun 17, 11:10 PM
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    Cakeguts
    When you go to see him can you please make sure that he understands that if he gets into arrears with his mortgage he could lose his home. A mortgage might be cheaper but you need more savings than if you are renting in case you can't pay the mortgage. There are no benefits that you can claim to pay a mortgage. He might get the interest paid for a short time. If he doesn't pay the mortgage the house will be repossessed. It is very important that he understands this since he has already been in arrears with rent.
    • G_M
    • By G_M 7th Jun 17, 11:35 PM
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    G_M
    As pixie says, he must either give proper notice, or agree an Early Surrender. Whichever it is needs to be in writing.

    I'm unclear if his fixed term ends on July 1st or July 2nd.

    He cannot serve notice till the fixed term has ended. So he should serve notice the next day (1st day of his new periodic tenancy). Notice to expire 1 month later (ie August 2nd or August 3rd).

    The landlord may claim this is not a 'full tenancy period' and the notice must expire a month later, but hopefully the LL will not raise this.

    To avoid this possibility, pixie's suggestion of an agreed Early Surrender date could be negotiated with the LL for any date he wants (eg Aug 1st), but

    a) the LL must agree and
    b) he should get it confirmed in writing.

    Ignore the deposit issue for now - asking for it back early will simply alienate the LL whomay then not agree the Early Surrender and/or contest the notice period.

    Meantime keep paying the rent and, ideally, the arrears.
    • helpneeded2017
    • By helpneeded2017 11th Jun 17, 1:32 PM
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    helpneeded2017
    Hiya,

    So been an update over the weekend,

    The LL has written to my brother ( arrived Sat ) to say

    " As a section 8 has been served I will be entering the property following your end of tenancy on July 3rd to remove any items that are present and will charge you for each item that I remove, the possession order is irrelevant as a section 8 has been served and If there is resistance I will take steps to enforce removal of items and yourselves on that day through members of my team"

    As the LL knows he is suffering from depression and anxiety it is a real threatening way to write it but he is not right is he? He has to wait until the possession order date for the court to decide

    He is an experienced LL with 8 properties so I am now questioning whether I am right ( as have less knowledge )
    • G_M
    • By G_M 11th Jun 17, 1:52 PM
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    G_M
    Simply serving a S8 Notice
    a) does not end the tenancy and
    b) does not give the LL the right either to enter, nor to steal the tenant's possessions
    He first has to go to court, show them the S8, and apply ask the court) for a possession order.

    Are you sure this has not happened?

    Based on the letter, I would go to the police and make a formal complaint (get a crime number) for illegal harrassment (Protection from Eviction Act 1977 ). Thepolice generally resist getting involved in these housing issues (saying it is a civil, not criminal, matter) so you may have to insist. ask to see a more senior officer. And quote the Act so they understand that harrassment is a criminal matter.

    You could also advise them you genuinely fear a Breach of the Peace is likely if/when the landlord 'forces entry' illegally.

    I would also change the locks.

    But first, please, make sure that the LL does not have a court possession order he can enforce on July 3rd.
    • helpneeded2017
    • By helpneeded2017 11th Jun 17, 1:55 PM
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    helpneeded2017
    thanks for the reply,

    No he has not as its the court date with him to file a defence in 14 days and then lists the possible outcomes such as suspended possession etc when he attends so nothing has been issued

    Should he add a copy of the letter into the defence paperwork as well for the court?
    • helpneeded2017
    • By helpneeded2017 11th Jun 17, 1:59 PM
    • 11 Posts
    • 1 Thanks
    helpneeded2017
    I have just asked him to triple check and he has a notes for defendant leaflet in the paperwork which says the claimant has asked the court for an order and to note that no one can evict you before the court date and the court will not make a decision before this date
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