Section 8 vs section 21 - non payment of rent query

Wee_Willy_Harris

Please Clutton, don't despair.

You know as well as I do that, just as many tenants are not aware of housing legislation, neither are a significant number of LLs. Many aren't even aware that unlawful eviction is wrong, many more regard it as a petty civil matter. To dismiss the risk of illegal/unlawfull eviction as a trivial matter is, in my opinion, irresponsible. Anything which can encourage either party to "do things right" can hardly be a bad thing. You know that the action recommended DOES carry a risk, and that risk needs quantifying.

You also know, as well as I do, that the case mentioned is FAR from what could be described as "landlords from hell". There was no violence, no threats of violence, they didn't even physically remove him and, if the rent arrears are accepted, he was hardly the model tenant. Yet the LLs are still almost £90k out of pocket. I've bought whole houses for that!

I accept that it isn't exactly the same set of circs, but it is representative and an example od what "newbies" would be wise to be aware of.

N79

In my opinion, if a court order has been obtained and the property is clearly empty of both the T and their belongings then the risk of prosecution is minimal and the risk of conviction infintesimal.

First, the crime of illegal eviction requires the LL "knows, or has reasonable cause to believe, that that conduct is likely to cause the residential occupier to give up the occupation of the whole or part of the premises or to refrain from exercising any right or pursuing any remedy in respect of the whole or part of the premises" which will be somewhat difficult to show if the T has clearly already left.

Even if this hurdle is crossed then the LL has a defence to the charge. The most relevent here is: "A person shall not be guilty of an offence under subsection (3A) above [N79 Comment - the illegal eviction offence] if he proves that he had reasonable grounds for doing the acts or withdrawing or withholding the services in question."

A totally empty property after a court has already ordered the end of the tenancy would seem to me to be reasonable grounds for the LL to take possession. Would a court really find otherwise?

Of course the post expiry of a court order case discussed above is totally different to the case where a LL takes possession of an empty property before a court ends the tenancy. In such cases, there is a real risk of prosecution and hence the need for LL's to act cautiously and with great care.

See the Protection from Eviction Act 1977 for full text.

lyndasharp

Hi again, the saga continues but hopefully soon with a happy ending for us. Have just had this message from the LA:
"I had an interesting visit from one of Mr X's work colleagues (unrelated matter). Apparently he was fired from his
job for stealing money and no longer lives at the property. I visited the
property and he has left it (Not in a bad condition but in need of a clean)
with a note stating he will be back at the end of the week to clean up and
leave his keys. As an abandonment I will have to get a solicitor to draw up
a statutory declaration for me so that I can get the deposit for you. This
will take up to four weeks from the 1st of the month."

My question is whether abandonment is necessary???? I have taken into account your advice above, but he is clearly surrendering the property and is apparently going to return the keys on Friday. After we've got the keys back, can the LA not just relase the deposit from the scheme on the basis of his note and the court order? We'd rather not spend any more money on solicitors etc if we don't have to, but ovbiously also want to make sure everything we do is above board. Thanks again for all your help.

RAS

Lynda

If the guy still has keys and intens to come back to clean up, do not assume abandonment.

Once the keys are returned, it is OK.

Get someone independant of the LA to confirm this.

Fire_Fox

My (sketchy) understanding of the deposit schemes is that both parties need to agree to release the deposit or things become complex, in some cases they can hold onto it indefinitely I think. I'd check with the deposit scheme used what is required.

lyndasharp

We've spoken to the LA again to get a better idea of what they were talking about, and it seems that the deposit scheme will only release the funds if, as you say Fire Fox, both parties agree, or in the case of this one, if there's a sworn statement saying the tenant has left. LA has said they will stand in front of a solicitor and do this, and it's only £5. I think their use of the word abandonment confused me, as this is clearly something different to applying for abandonment of a property through the courts!