Section 8 Housing Act - To evict a tenant?

Icey77

Good Afternoon,

I have a tenant that is not paying his rent ... well he's paying a little bit here and a little bit there and is (as of today) £1005 in arrears :mad::eek::eek::mad::mad:

The contract is for 2 years from January 2011 with the break clause at 12 months (Jan next year).

For the last 4 of the 6 months (Jan-Jun) he has been late paying and now hasn't paid the June rent and also the balance of the May rent after the odd payments mentioned above.

Apparently he has had family health trouble and had to fly off to the caribbean (where his family live) at short notice - I think this is where my rent payment went. I am sympathetic but can not be financially responsible for his problems.

I can't use the break clause as it is not available to me yet so I have to try to evict him under a Section 8 notice I believe.

Having looked at the act the clauses open to me are:

Clause 8 (2 months arrears) - I can't use this as he not 2 months in arrears (albeit not far off - £295)

Clause 11 (persistantly behind and inconsistent with rent payments) - I think I can use this as for months 3, 4, 5 & 6 he has been late and is now paying odd payments every so often.

Can anyone advise if this will be viewed as "persistently late and inconsistent"? The clause sounds rather open to interpretation to me

I have received an email from the tenant saying he wants to stay and offering to pay the arrears off at £40 every month over and above the rent. I MIGHT have been open to considering this BUT he hasn't paid the rent for the current month so am I'm not inclined to believe him. Also, it would take nearly 9 months for this to happen assuming he keeps the payments up and his past behaviour is not indicative of this happening.

Do I really need to instruct a solicitor to complete the Section 8 notice or can it be done by a layman (me)? I don't want it to br thrown out of court because I have made a mistake but also can't afford the £500 :eek: that I have been quoted by a local law firm.

Any comments (helpful obviously!) and advice would be very greatfully received.

may_fair

Icey77 wrote: »

Having looked at the act the clauses open to me are:

Clause 8 (2 months arrears) - I can't use this as he not 2 months in arrears (albeit not far off - £295)

It's not two months arrears, it's two months owing and unpaid. E.g. if rent is payable monthly in advance on the 1st of the month, and T doesn't pay on 1st Jan, then also doesn't pay on 1st Feb, then on 2nd Feb there will be two months owing and unpaid.

Clause 11 (persistantly behind and inconsistent with rent payments) - I think I can use this as for months 3, 4, 5 & 6 he has been late and is now paying odd payments every so often.

You can use grounds 10 and 11. But these are discretionary grounds so you're not guaranteed a possession order. Ground 8 is mandatory, so if at the time of the hearing there is still at least two months owing and unpaid, then the court must make a possession order.

Do I really need to instruct a solicitor to complete the Section 8 notice or can it be done by a layman (me)?

You can DIY. You might find it helpful to buy an 'eviction kit' sold by Landlordlaw. http://www.landlordlaw.co.uk/open/std/which-kit

BitterAndTwisted

Being late paying the rent for five out of six months is persistently late, especially if he is still in arrears and offered an undertaking to pay them off with such a derisory amount per month so use that clause.

You can serve the S8 yourself but you have to be absolutely certain that it is served correctly. To be honest, I would consider £500 well-spent in the long-term if it ensures that you can get shot of this dreadful tenant.

DVardysShadow

Icey77 wrote: »

I have received an email from the tenant saying he wants to stay and offering to pay the arrears off at £40 every month over and above the rent. I MIGHT have been open to considering this BUT he hasn't paid the rent for the current month so am I'm not inclined to believe him. Also, it would take nearly 9 months for this to happen assuming he keeps the payments up and his past behaviour is not indicative of this happening.

In replying to the email, play hardball and don't accept it. Insist on immediate payment of all arrears - any concession on your part may be used against you. You need to insist on the arrears being put right.

As for notice to quit, consider what your potential losses could be and don't get to fidgety. You are probably 40% into your losses. Once you can issue a section 8, do so. This may result in rent being brought up to date, if not you can take it to court. If the rent is not brought fully up to date, then issue another section 8 as soon as the arrears permit you to.

Ultimately, if the rent is not kept under 2 months in arrears, you can make a section 8 stick. If the arrears are put right, then it is end of problem. But if the arrears keep going above 2 months, you could make a Section 11 stick.

may_fair

DVardysShadow wrote: »

Ultimately, if the rent is not kept under 2 months in arrears, you can make a section 8 stick. If the arrears are put right, then it is end of problem. But if the arrears keep going above 2 months, you could make a Section 11 stick.

As I said in post #2, it's important to make the distinction between arrears and rent owing and unpaid.

Ground 8 of Schedule 2 Housing Act 1988 says:

Both at the date of the service of the notice under section 8 of this Act relating to the proceedings for possession and at the date of the hearing—

(a) if rent is payable weekly or fortnightly, at least eight weeks’ rent is unpaid;
(b) if rent is payable monthly, at least two months’ rent is unpaid;
(c) if rent is payable quarterly, at least one quarter’s rent is more than three months in arrears; and
(d) if rent is payable yearly, at least three months’ rent is more than three months in arrears;

and for the purpose of this ground “rent” means rent lawfully due from the tenant.

Note that (a) and (b) refer to 'unpaid' rent, whereas (c) and (d) refer to 'arrears'. There is a difference.

princeofpounds

Just to elaborate on that difference - unpaid means that the rent is due and has not been paid. arrears means that the rent has been 'consumed' and is not yet paid.

The difference between the two arises when rent is payable in advance, as is usual, because the rent is due before the period it is 'consumed' in.

dodger1

Icey77 wrote: »

Good Afternoon,

I have a tenant that is not paying his rent ... well he's paying a little bit here and a little bit there and is (as of today) £1005 in arrears :mad::eek::eek::mad::mad:



I have received an email from the tenant saying he wants to stay and offering to pay the arrears off at £40 every month over and above the rent. I MIGHT have been open to considering this BUT he hasn't paid the rent for the current month so am I'm not inclined to believe him. Also, it would take nearly 9 months for this to happen assuming he keeps the payments up and his past behaviour is not indicative of this happening.

If he only pays £40 a month extra it will take just over 25 months to get back to no arrears not nine months. Dump your tenant and get a good one, most of us are.

Flat_Eric

The service of a notice is only the pre-requisite to evicting someone from a property. If they don't go (following service of the notice) then its court proceedings so I would go back to the solicitor and ask for a breakdown because the cost of serving the notice may not be as much as you think and in my opinion is worth the expense so that you can be sure the notice has been served properly. Perhaps get other quotes as well?

Icey77

Thankyou everyone for your replies!

I have to confess I am a little confused by the difference between "Rent owing" and "arrears".

May I check my thinking?

Month 1 - Rent owed on 1st (Not paid)
Month 2 - Rent owed on 1st (Not paid)
Month 3 - Rent owed on 1st (Not paid)

At the point I get to Day 2 on Month 3 and my tenant still has not paid the rent for months 1&2 he is 2 months in arrears with the current month owing.

I have sent an email to my tenant and I intend to follow it up with a registered post version of the same email. The email gives him two options to consider:

1) Voluntarity vacate the property, paying the rent and any arrears up to that date and also the council tax and utilities to that date. I stated that I will be allowing him out of the contract early without penalty and without any further obligations other than those mentioned above.

2) As it appears he may be unable to pay the rent as it falls due or be able to promptly settle the arrears. I could apply to the courts for a possesion order.

I told him I am sympathic to his family health problems but the fact remains that he is required to pay the rent on the due date and he is failing to do that.

I ahve given him a week to consider the options and decide to pay the amounts owed, volunteer to vacate or if the arrears grow and the rent still isn't paid to be taken to court.

I am trying to be clear and polite so that there is no chance that a court (if it comes to that) can accuse me of intimidation or anything else. I am trying to resolve the situation without taking it to court but will if I have to.

I have been advised that the clause 11 is likely to be a non-winner as the courts are SO heavily biased in favour of tenants that it's simply not worth it so I have to wait for the arrears to grow over the 2 months point or for him to voluntarily agree to vacate.

Thanks again for your comments and advice to date!
Icey

Emmylou_2

No.

Rent Due Month 1 on M1D1 - If it's not paid, then on M1D2 there is one month outstanding.
Rent Due Month 2 on M2D1 - If it's not paid, then on M2D2 there are two months outstanding.
Rent Due Month 3 of M3D1 - If it's not paid, then on M3D2 there are three months outstanding.

It is on M2D2 that there is two months' rent outstanding at which point you can start s8 g8 proceedings.

Benji

I haven't much to add to this thread except the offer for you to read this page which gives a brief outline of the s8 process.
http://tenancyanswers.ucoz.com/index/ast_tenants_in_breach_of_contract/0-36

I suspect your lawyer quote does NOT include the court costs - if this gets to bailiff stage, the total court costs will be £285. I can't see a solicitor doing all the paperwork and turning up at court for the balance of £215. Check what the quote included.

A section 8 is perfectly DIYable. As above, DIY will cost up to £285 but you can take advantage of the PCOL website and pay just £210 instead.

Sites like this can help you DIY if you have specific problems/queries.