Non paying tenants

mike00_2

may_fair wrote: »

What does the contract say about rent?


Does it say rent is £495 pcm payable in advance on the 28th of the month the first payment to be received in cleared funds by 28th March 2011? If not, what does it say?

And does it say in the contract that the deposit payments are due every month?

Are you saying that your mother allowed T to move in without paying a month's rent up front (in addition to not taking a deposit)?

Incredibly and unfortunately yes.

I'll have to get the exact contract wording tomorrow as I'm getting no response on the phone. I'm going to her house tomorrow.

Thanks for sticking with it.

Mike

may_fair

mike00 wrote: »

Incredibly and unfortunately yes.

I'll have to get the exact contract wording tomorrow as I'm getting no response on the phone. I'm going to her house tomorrow.

Thanks for sticking with it.

Mike

No problem, I'll be here tomorrow.


The reason I am asking for exact details re the contract is because, if the rent is payable in arrear, (i.e. the first payment wasn't due until 28th April), and not in advance as most contracts specify, then as things currently stand there would be just short of two months' rent owing and unpaid (because of the £45 payment). This would be bad news because it'd mean waiting until 29th June (assuming no rent paid on 28th June or in the interim) before your mother can use the mandatory ground 8 in the s.8 notice.

Your mother also needs to protect the £88.33 deposit received. Use the DPS http://www.depositprotection.com/ and provide T with the prescribed information, template here (keep copy and proof of posting). She must do this as she can't serve a valid s.21 notice (the standard no-fault 2 month notice seeking possession) before she protects the deposit.

mike00_2

Thanks very very much,
will contact you tomorrow,

Mike

Wee_Willy_Harris

Get the S8 notice served (grounds 10 and 11) WITHOUT DELAY. This will demonstrate your intentions and may spur your tenants into suitable preventative action (ie paying the rent). As soon as they are 2 months in arrears (ie 2 months rent DUE) serve S8 on ground 8.

Ensure any monies paid as a deposit are protected in a suitable scheme and that the tenants have recieved the prescribed information. Then serve the S21 to expire at the end of the fixed term.

As the tenants will have limited choices regarding re-housing, I would also contact the local social housing provider and explain what you are doing and why. They will have a housing advice team who's function is (partly) the prevention of homelessness. They may be able to assist with resolution or offer the tenant such education as necessary to prompt the appropriate action.

In simple terms, it is best to behave like a landlord.

mike00_2

Hi may_fair,

the wording from the agreement is..

''The rent is £495 payable per month. Payable in arrears by housing benefit. Difference paid three weeks in arrears.The deposit £500 to be paid over 6 months at £83.33''

Cheers Mike.

jjlandlord

mike00 wrote: »

''The rent is £495 payable per month. Payable in arrears by housing benefit. Difference paid three weeks in arrears.The deposit £500 to be paid over 6 months at £83.33''

Just to comment on this clause:
- Bad idea to stipulate that rent is payable in arrears
- Bad idea to stipulate that rent should be paid through housing benefit: first it is none of LL's business were the money come from and second technically tenant would be breaking agreement by paying not through housing benefit...
- Bad idea to allow deposit to be paid monthly throughout the tenancy: Landlord has not guarantee that deposit will have been paid at the end of the tenancy (defeating the purpose of a deposit) and it makes deposit protection a nightmare.

may_fair

mike00 wrote: »

the wording from the agreement is..

''The rent is £495 payable per month. Payable in arrears by housing benefit. Difference paid three weeks in arrears.The deposit £500 to be paid over 6 months at £83.33''

Have to agree with jjlandlord, this is bad/amateur drafting on a truly epic scale. You can't make 'housing benefit' liable for rent, they are not a party to the contract. It's the tenant who is liable for rent. "Difference paid three weeks in arrears" is meaningless - difference between what, and what's due three weeks in arrears - is that a one off payment, etc etc. And if T did comply with the 6 deposit payments, your mother would have to protect each payment, every single time she received another payment.

Anyway, the long and short of it is that rent is payable in arrear, so there will not be two months' owing and unpaid until 29th June (assuming T does not pay rent due on 28th June or make any other payments meanwhile, whether from T or direct from housing benefit - which could happen as your mother's applied for this).

In the circumstances, I would follow Wee Willy Harris' advice to serve a s.8 notice citing grounds 10 & 11 only (i.e. some rent unpaid, persistent late payment of rent). After the notice expires (14 days), the LL is entitled to apply for possession, however, 10 & 11 are discretionary grounds (unlike ground 8) meaning that the court may or may not make a possession order.

Your mother must also protect the deposit/provide prescribed information, and then after that serve a s.21 notice (as previously advised). This will at least mean that there's a Plan B if the s.8 application fails, and she can apply for possession at the end of the fixed term with possession guaranteed (albeit this is assuming she's got her paperwork in order).

She must NOT assume T will simply move out at the end of the fixed term. In all probability, he won't, nor is he under any obligation to do so. It's therefore essential that she serves notice to ensure that she gets rid of the T as soon as possible.

As your mother is clearly a novice when it comes to letting, I would strongly recommend that she joins a landlord association such as http://www.landlords.org.uk/ She could get into a LOT more trouble than she's already in if she isn't aware of her legal obligations as LL.

See also http://www.landlordlaw.co.uk/
http://www.landlordlawblog.co.uk/

mike00_2

Many thanks to all for your replies.

Here are some further points from Mayfair who has lent some further advice via pm I have had to edit some parts so I hope they make sense to anyone else with similar issues .

'' The only provisions which are relevant to the situation (i.e. serving notice and applying for possession) are:

1) Rent payment details (and you've already posted what it says about this)
2) Date term commenced (dd/mm/yy) - N.B. this isn't the same as the date the contract was signed or the date the tenant moved in (though T does usually move in at the start of the term).
3) Length of term, and whether or not an 'end' date is specified, e.g. it might say something like six months from 1st Jan 2011, or six months commencing 1st Jan up to and including 30th June.
4) Whether the contract specifies an address for serving notices in England/Wales or not (N.B. not the same as LL's address usually given at the top of the contract).

The main thing to focus on is getting the s.21 and s.8 notices right/correctly served, (with a view to successfully applying for possession).''


''If the T has not been given, in writing, an address for serving notices (usually, it's the LL's or agent's address, and usually it's incorporated into the rental agreement) then no rent is actually due until this is provided (all arrears fall due immediately that it is, so don't worry).

If your mother hasn't done this/it's not in the contract, then all she has to do is write to T saying 'Dear Tenant, Here's the address for serving notices under s.48 Landlord and Tenant Act 1987: 55 Any Street, Anytown, XX2 2XX. Yours sincerely, Landlord'. N.B. the address must be in England or Wales.

Also, she must protect the £83.33 deposit paid as I advised in the thread, and provide T with the prescribed information. (She can't serve a s.21 unless she does this first)

It's essential to keep copies of anything sent to T and to get a free certificate of posting (signed for services can be refused or go uncollected). Or deliver by hand with an independent witness present.

So anyway, when you can confirm that the above is all sorted out, your mother will then be in a position to serve a s.21 notice and a s.8 notice. ''

vukuk

mike00 wrote: »

As you say the cheques would have gone to the tenant who would then make payment to my mother, she has spoken to the Housing Department and they say that three cheques have been sent out but are reluctant to give any more info ( amounts, dates etc).
The amount owing is for the first three months of the six month agreement and yes all parties are in in England.
She is now going through the process of of having the cheques sent to her directly.
As the incoming tenant didn't have the cash up front for a deposit she agreed to payment of deposit to be built into the 'top up' portion as described above.

The eviction was in jest (just) but as you describe the process with the courts it might be best to bite the bullet and just let the agreement expire and start over with new tenants as she is half way through the term and it might be better to go down a less antagonistic route?

get rid of the tenant as soon as possible. From my experience, once problems start they never end. there are so many honest tenants around.

clutton_2

it is not possible to pay a deposit in installments into any of the Deposit protection schemes...

if i were OP i would join National Landlords Association on Monday - their situation is very very complex legally and they need proper advice... the joining fee is tax deductibel and NLA have a great legal help line which will talk them through all the paperwork required for submission to court