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  • FIRST POST
    • Pendrix
    • By Pendrix 10th Jan 18, 7:14 PM
    • 23Posts
    • 1Thanks
    Pendrix
    Confused about court case/eviction
    • #1
    • 10th Jan 18, 7:14 PM
    Confused about court case/eviction 10th Jan 18 at 7:14 PM
    I am facing eviction but the court sent me a mortgage property defence form with the claim for possession. Thing is, the property is not a mortgaged property. Does this mean the claimant filled in the wrong form for possession?
Page 2
    • Slithery
    • By Slithery 13th Jan 18, 4:01 PM
    • 503 Posts
    • 775 Thanks
    Slithery
    But an S21 isn't 2 months notice to leave, it's 2 months notice that the LL can then apply to the courts for eviction.
    • FBaby
    • By FBaby 14th Jan 18, 8:54 AM
    • 16,296 Posts
    • 40,573 Thanks
    FBaby
    Artfull, I'm debating the legal process, I'm debating the fact that I find it a sad state of our society that people think it is ok to use their 'legal rights' at any opportunity despite an agreed contract just because they can.

    Maybe a better comparison would be you and the misses going to a one off trip to Barbados. You've booked a really nice 4 star hotel and can't wait to enjoy the facilities and relax in the sunshine. When you get there though, you are told that your room is not available and there is no alternative. That's because the person who'd booked the room before decided they really love the place and want to stay longer. They are still paying for the room, and the police isn't interested. They get their money, they don't care.

    So you are told to go and find somewhere else and when you say 'hang on, I have rights', you are told 'yes of course, take us to court then'.

    You can of course do that, it's your legal right and you'll get your money back and maybe even compensation, but in the meantime, you end up in a grotty hotel because that's all that was available, but the travel company, the hotel and the person who stayed in the room don't care despite your contract.

    Legal rights are there to allow people to seek compensation when they have been treated wrongly, but it doesn't say anywhere that it means it is ok to treat people badly because they have the option to get compensation.
    • theartfullodger
    • By theartfullodger 14th Jan 18, 11:31 AM
    • 9,238 Posts
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    theartfullodger
    Fbaby:. Are you an agent or a landlord, please?

    What training have you done in landlord/tenant law, please?
    • piccybabes
    • By piccybabes 14th Jan 18, 12:51 PM
    • 100 Posts
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    piccybabes
    My experience
    Having been through the process of evicting a tenant under S21, by giving the prescribed 2 months notice, I can confirm that legally the tenant does not have to leave at the expiry of that period.


    My time lines.


    2 months notice - 17th August 2017
    Expiry- 18th October 2017


    Tenant does not vacate - I apply for possession order and pay £355.
    Initial Possession order granted for 6th December. Tenant goes to court and it gets extended to maximum 42days - 27th December 2017.


    Tenant does not vacate so apply to court for Bailiffs warrant- received 12th January for eviction date of 30th January 2018


    So from the expiry of the S21 notice to "guaranteed" eviction = 16 weeks.


    Experience has told me:


    1. Protect Deposit
    2. Have signed AST
    3. Proof of service (signed by tenant if possible) of the S21
    4. Check and double check Court submission paperwork - google for help if needed
    5. Chase the bailiffs for dates - but be nice
    6. Expect Shelter to represent the tenant in Court hearings( if you can't attend at least write a letter explaining your position)
    7. Do not threaten the tenant


    If your paperwork is in order and tenant has not made claim for property disrepair than it should all go swimmingly.


    My advice, if you are not comfortable with this, pay somebody else to do it, but it will take time,
    • theartfullodger
    • By theartfullodger 14th Jan 18, 1:02 PM
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    theartfullodger
    Tenant may still appeal to the court.

    Ministry of justice statistics show typical timescales 40+ weeks.
    • piccybabes
    • By piccybabes 14th Jan 18, 1:35 PM
    • 100 Posts
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    piccybabes
    Hence my use of "guaranteed".


    I have learned through almost 18 years of being a landlord that nothing is guaranteed until it actually happens and the tenant is out. In my case the tenant has arranged social housing with the Council, but there is always the possibility of a further extension.
    • theartfullodger
    • By theartfullodger 14th Jan 18, 2:35 PM
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    theartfullodger
    Indeed!


    Why did you evict this particular tenant please?
    • steampowered
    • By steampowered 14th Jan 18, 4:03 PM
    • 2,073 Posts
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    steampowered
    The landlord is absolutely legally entitled to evict using s21. Tenant is equally absolutely legally entitled to remain until bailiffs. (Both being specified in Thatcher's 1988 Housing Act)
    Originally posted by theartfullodger
    Although if the tenant stays that long, the tenant is in breach of contract and may be ordered by the court to pay the landlord's legal costs.
    • theartfullodger
    • By theartfullodger 14th Jan 18, 4:20 PM
    • 9,238 Posts
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    theartfullodger
    Could you kindly quote which clause in what legitimate contract (eg gov.uk or RLA or NLA ) you would consider has been breached, please?

    If you find one, £25 to an agreed Housing Charity.
    • steampowered
    • By steampowered 14th Jan 18, 7:21 PM
    • 2,073 Posts
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    steampowered
    Could you kindly quote which clause in what legitimate contract (eg gov.uk or RLA or NLA ) you would consider has been breached, please?

    If you find one, £25 to an agreed Housing Charity.
    Originally posted by theartfullodger
    The tenancy agreement is a legally binding contract.

    Fixed costs are usually awarded against the tenant in eviction proceedings, and these may be deducted from the deposit and/or the Defendant may be sued to pay them, resulting in a CCJ being registered against them.

    I'm not pretending that fixed costs cover all of the landlord's costs, and of course the landlord won't be able to recover anything other than the deposit if the tenant is bankrupt, but they are nevertheless an additional cost to the tenant of staying after valid notice has been given.
    • theartfullodger
    • By theartfullodger 15th Jan 18, 11:18 AM
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    theartfullodger
    The tenancy agreement is a legally binding contract. ...
    Originally posted by steampowered
    Agreed, but with an s21 eviction what clause in this legally binding contract has been breached? I say none. No legit AST I am aware of has any clause requiring tenant to leave at either end of fixed term or after a valid s21 or s8 notice has been served. Can anyone come up with a clause breached, please? £25 to a worthy, to be agreed, clause.

    ....Fixed costs are usually awarded against the tenant in eviction proceedings, and these may be deducted from the deposit and/or the Defendant may be sued to pay them, resulting in a CCJ being registered against them.

    I'm not pretending that fixed costs cover all of the landlord's costs, and of course the landlord won't be able to recover anything other than the deposit if the tenant is bankrupt, but they are nevertheless an additional cost to the tenant of staying after valid notice has been given.
    True, agreed, but still no breach of contract!
    • piccybabes
    • By piccybabes 15th Jan 18, 1:01 PM
    • 100 Posts
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    piccybabes
    Artfulldodger


    Its along story re eviction, but in short


    1. the house is suffering from subsidence,
    2. there is no easy solution that wouldn't cost over £100k and party wall involvement
    3. House is worth £150k
    4. Insurance and I agreed only way to resolve was to sell declaring the subsidence issue and Ins co compensate for loss of value
    5. Cash buyers originally said they would keep tenant but changed mind
    6. Tenant is struggling financially and would benefit from social housing
    7. Over last weekend, housing found by council - tenant will hopefully move out this Friday


    Upshot is - insurance co loses liability for less than £100k
    Tenant get Social Housing
    I get compensated
    • theartfullodger
    • By theartfullodger 15th Jan 18, 1:27 PM
    • 9,238 Posts
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    theartfullodger
    Thanks piccy:

    Note, lodger not dodger: I don;t dodge.
    • pinklady21
    • By pinklady21 15th Jan 18, 2:26 PM
    • 360 Posts
    • 228 Thanks
    pinklady21
    Part of the problem is that often Councils will not entertain rehousing people facing eviction until the eviction has actually taken place. So the tenants are forced to stay put, as to do otherwise would render them "intentionally homeless" and therefore unlikely to receive any help from the Council.
    Clearly, not every tenant who is served a S21 will require rehousing from the Council, but for those who have little other choice than social housing, it is another block that is placed in their way.
    • theartfullodger
    • By theartfullodger 15th Jan 18, 4:45 PM
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    theartfullodger
    Very true: In particular
    ....Clearly, not every tenant who is served a S21 will require rehousing from the Council, but for those who have little other choice than social housing, it is another block that is placed in their way.
    Originally posted by pinklady21
    Many private tenants will not be entitled to be rehoused by council...., particularly say healthy singles or couples not pregnant or with kids
    http://england.shelter.org.uk/housing_advice/homelessness/guide/get_help_from_your_council_when_homeless
    - and social housing is increasingly not a possible option for many people, especially in London.
    Last edited by theartfullodger; 15-01-2018 at 4:55 PM.
    • martinsurrey
    • By martinsurrey 15th Jan 18, 5:01 PM
    • 3,268 Posts
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    martinsurrey
    And I expect the OP will also have a contract to say that he can be given two months notice to vacate. A contract is a contract. Contracts should be respected on both sides, the law should come as a last resort, not as a mean of control just because it's there.
    Originally posted by FBaby
    they wont, the LL will have given signed a contract stating that he'll give the tenant 2 months notice before he starts the process to end the tenancy, a process that can only be done by the court.

    Well he's doing nothing illegal as far as we know but if I was LL I'd certainly refuse him as a future tenant. Personally if I sign an agreement that states ie two months notice then that's what I'd accept, maybe I'm in the minority these days.
    Originally posted by parkrunner
    exactly, and as above the LL gave signed a contract stating that he'll give the tenant 2 months notice before he starts the process to end the tenancy, a process that can only be done by the court. and thats all the OP is wanting, the LL to fulfil their legal and contractual obligations.


    Artfull, I'm debating the legal process, I'm debating the fact that I find it a sad state of our society that people think it is ok to use their 'legal rights' at any opportunity despite an agreed contract just because they can.
    Originally posted by FBaby
    As above, you dont seem to understand what a AST contract even is.

    First thing is to research the difference between 2 months notice to vacate, and 2 months notice of intent to seek possession (one is a legal clause in an AST, and one isn't, and a hint, the one you think it is, is wrong.)

    the amount of people jumping in feet first who dont understand AST contracts or the law is staggering.
    • parkrunner
    • By parkrunner 15th Jan 18, 10:52 PM
    • 872 Posts
    • 1,299 Thanks
    parkrunner
    they wont, the LL will have given signed a contract stating that he'll give the tenant 2 months notice before he starts the process to end the tenancy, a process that can only be done by the court.



    exactly, and as above the LL gave signed a contract stating that he'll give the tenant 2 months notice before he starts the process to end the tenancy, a process that can only be done by the court. and thats all the OP is wanting, the LL to fulfil their legal and contractual obligations.




    As above, you dont seem to understand what a AST contract even is.

    First thing is to research the difference between 2 months notice to vacate, and 2 months notice of intent to seek possession (one is a legal clause in an AST, and one isn't, and a hint, the one you think it is, is wrong.)

    the amount of people jumping in feet first who dont understand AST contracts or the law is staggering.
    Originally posted by martinsurrey
    I'm not arguing the law just saying that most tenants will move after the two month's notice. Tenants who force the LL to get a court eviction would not be looked at favourably by future LLs
    • deannatrois
    • By deannatrois 16th Jan 18, 1:37 AM
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    deannatrois
    Most tenants, if they have a choice, will move out. If you have no choice.., a LL's reference doesn't make a jot of difference because you are either going to end up receiving help from the council or homeless in most of these cases.

    Always amazes me though how people being evicted with large rent arrears manage to find another property. They end up on the streets less often than i would have assumed. Some people just seem to get away with it somehow.
    • theartfullodger
    • By theartfullodger 16th Jan 18, 8:03 AM
    • 9,238 Posts
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    theartfullodger
    .....Always amazes me though how people being evicted with large rent arrears manage to find another property. They end up on the streets less often than i would have assumed. Some people just seem to get away with it somehow.
    Originally posted by deannatrois
    Indeed. Probably often due to the consequences of Thatcher's 1988 Housing Act "Section 21". Landlords evict using s21 (the "no fault", "for no reason at all" route) as it is easier and more reliable than evicting for rent arrears or other breaches of tenancy. And often give "good" references so tenant finds somewhere else quicker and thus leaves earlier. And doesn't bother to inform council of arrears, thus meaning those who should not be entitled to be rehoused are rehoused, wasting (my view..) scarce council resources and housing stock.

    Too many landlords just want shot of a problem, don't care if it costs councils and/or the next landlord shedloads...
    • silvercar
    • By silvercar 16th Jan 18, 8:29 AM
    • 36,397 Posts
    • 153,872 Thanks
    silvercar
    Indeed. Probably often due to the consequences of Thatcher's 1988 Housing Act "Section 21". Landlords evict using s21 (the "no fault", "for no reason at all" route) as it is easier and more reliable than evicting for rent arrears or other breaches of tenancy. And often give "good" references so tenant finds somewhere else quicker and thus leaves earlier. And doesn't bother to inform council of arrears, thus meaning those who should not be entitled to be rehoused are rehoused, wasting (my view..) scarce council resources and housing stock.

    Too many landlords just want shot of a problem, don't care if it costs councils and/or the next landlord shedloads...
    Originally posted by theartfullodger
    Possibly the arrears arose because the rent was unaffordable. The rent was unaffordable because circumstances changed or the rent was unaffordable from the start but the only decent thing on offer.

    Maybe the rent arrears weren't deliberate. In any case, most council properties are allocated based on need rather than a financial examination of the tenant.
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