Possession Order

AlexSnow

Hi Jack,

The judge is generally going to go in favour of the Tenant, a mistake of the year on his defence form will not count against him I'm afraid.

The court will schedule a hearing where the judge will hear oral evidence from you and the tenant. I strongly encourage your relative to come also so they can give oral evidence about the service. Depending on the workload of the court this could be a month or two away (some courts are overworked at the moment and have huge waiting lists)!

It will then come down to who the judge believes. If the tenant is also in rent arrears I recommend you issue a s8 notice as well (as a backup). You may wish to start those proceedings and ask the court to link the two cases so that the judge can consider both applications at the same time.

PaulF81

Why not put the rent in advance to one side as a deposit? Surely he wont get it back as he is in arrears with the rent already. Dont argue the deposit case and get it in a deposit schem now. The priority is to get this paris.ite out of your home. If he cant be bothered to sort housing allowance though the dss, not the sort of tennant i would want to be honest.

Annisele

I think (ready to be corrected) that if OP accepts that there was a deposit and protects it, he'll then have to start again with the s21 procedure.

If the judge thinks that part of the payment was a deposit, he'll have to start again anyway. But if the judge agrees it was "rent in advance", OP might save the two to three months that starting again will cost him.

So, OP - if you're not absolutely certain that your s21 was correctly served, take advice!

00ec25

jack2uk wrote: »

Also with the tennant not correctly filling in defence form and signing wrong date(wrong year) and not giving their DOB when requested, then the judge should rule against them ? any thoughts on this please?

whilst technicalities do of course decide cases, in the context of a possession hearing, the ones you list have no weight compared to the issues other posters have pointed out already and upon which the judge will be more concerned. concentrate on the important points not trivial bits on the defendants paperwork

jack2uk

AlexSnow wrote: »

Hi Jack,

The judge is generally going to go in favour of the Tenant, a mistake of the year on his defence form will not count against him I'm afraid.

The court will schedule a hearing where the judge will hear oral evidence from you and the tenant. I strongly encourage your relative to come also so they can give oral evidence about the service. Depending on the workload of the court this could be a month or two away (some courts are overworked at the moment and have huge waiting lists)!

It will then come down to who the judge believes. If the tenant is also in rent arrears I recommend you issue a s8 notice as well (as a backup). You may wish to start those proceedings and ask the court to link the two cases so that the judge can consider both applications at the same time.

Thank you again for your help, we did issue a S8 notice with the S21 but have not pursued the outstanding arrears. Do you think if i goes to court this should be raised? yes my relative will come with me if it goes to court. The tennant is a bad character, he has many outstanding council driving offences, also has been stopped with drugs/canabis, so its easy to see that he is not a trustworthy person. thank you all again.

jack2uk

Hi All, further developments, i have received General Form of Judgement or Order N24 today with a date for court hearing soon. The reason given is the fact the tennant indicates a Deposit was paid whereas the Landlord answered NO " Can anyone help me with this? i have never been to a court before, Can i take a friend/relative who witnessed serving of S21 Notice? I still maintain that the tennant paid 2 months when moving in but this was classed as 2 months rent in adavance. I never classed it as a deposit, there is no mention on the AST of a deposit to be paid.
Its only £120 and the tennant is over 12 months in arrears. At this stage i have not claimed for repayment of arrears, only Accelerated possession of the room in house.
Any ideas what questions i will be asked to answer? will the judge decide on whether to grant a possesion order for the tennant to leave?

any help appreciated, thanks

princeofpounds

This means that the court has decided that one of the key issues if if you were paid a deposit or not. If it thinks you did, your S21 will fail even if it were served validly, because you cannot serve one without protecting a deposit.

It doesn't matter what you called it or classed it as, what matters are the facts.

Read this: http://nearlylegal.co.uk/blog/2009/02/its-not-a-deposit-honest/

Bear in mind that the law has evolved since then as the legislation is new and has been tested in courts and modified by parliament in a few respects (particularly around penalties for deposits) but the key extract is this:

On the deposit issue, the DJ noted that s.212(8) HA 2004 describes a deposit as meaning:

Any money intended to be held (by the landlord or otherwise) as security for -
(a) the performance of any obligations of the tenant, or
(b) the discharge of any liability of his arising under or in connection with the tenancy.
On ‘intended’ there is no indication in HA 2004 whether this is an objective or subjective test. But in view of the policy aim of protecting the tenant, it was surely not intended that the LL could avoid the scheme simply by saying that he did not intend to hold the money as security.

In the present case, any money over the first week’s rent was clearly being held as security against any potential future breach of rent liability, or other condition, by Mr Piggott, as it was not set off against the first five weeks rent liability. It was therefore, objectively, intended to be a security and was a deposit.

Now I don't know if the issues that are being debated in the comments at the bottom were resolved, but they are key to your issue.

If your rent in advance was intended to be maintained at all points and then refunded when the tenants decided to leave, then it was a deposit and you will fail. If it was for the first two months and then the tenant could skip a payment at any point (and most likely in month 2), then that is fine and you will succeed assuming the s21 was served correctly.

Where I am unaware of the deciding line is a situation where the tenant had to pay two months in advance but was not required to pay anything in the last two months of the tenancy, which is probably what you were doing if we believe your protestation that you did not consider it a deposit.

Your choice is twofold.

1) Accept you took a deposit, stop the action, issue a new S21 after protecting the deposit and start again.

2) Try to defend the existence of a deposit, but if you fail the next S21 will run out even later.

And finally if the tenant is so far behind, why are you not pursuing section 8 eviction? You could have done that months ago!

jack2uk

Hi thank you, yes i will go for defence of no rent required for the last month of the tenency. I issued a S8 at the same time as the S21... do you think i should pursue this route if i fail on the court hearing? obviously at this stage the judge is not aware of the tennents terrible history of late and non payment of rent and 12 months arrears, the judge should take this into account when he makes his decision.
Do you think i should appoint a solicitor to take this forward? i just want the fraudulent tennent out of the property.

princeofpounds

You don't need a solicitor, but you have to be very on top of things if you don't have one.

I will reiterate, I don't know about the dividing line on deposits like those, as the most recent info I have seen on the subject came from nearlylegal.

I wouldn't like to say whether it will work or not. I was hoping another poster might come along with more up-to-date information, it surely must have been tested in court since and it would help you a great deal to be able to name and summarise the case to the judge as the basis for your position. You might want to ask on landlordzone forums.

I don't know enough about court procedure, but if you can you should try to use your Section 8 too. If the tenant really is so far behind on rent then there is no reason why you couldn't have pursued this already. But I don't know if you will be allowed to introduce it, quite possibly not.

N79

The only way you have a chance of showing that the rent in advance was not a deposit is if this is clearly stated in your tenancy agreement. Does the agreement clearly say, for example and assuming a 6 month tenancy with a monthly rent of GBP1000 something like this:

"To pay GBP2000 at the start and then 4 monthly payments of GBP1000?"

If it does then you should point this out. If it doesn't.........I give you less than 1 chance in 5 of persuading the judge to that this was not a deposit. Things will be worse if the tenancy agreement explicitly states that the extra month would be refunded, used against damages or anything like this.

As princeofpounds has said, there is case law that states that "two months rent in advance" = deposit unless it really is very very clearly only for rent.

On other points:

1. You need to learn to spell tenant. If you don't the judge is going to think you are a cowboy, which will not help your already low credibility.
2. You need a witness statement from the person who witnessed the notice being served. Since they are a relative their statement may carry less weight. The statement should be dated and signed and must be served in the tenant and the court along with other court papers. You did not do this and it really is a bit late now. However, T's defence does not appear to be denial of good service. File this away as a point for next time.

Personally, unless your tenancy agreement states in writing something like I outlined above, I give you less that 1 chance in 5 of getting a possession order. You should seriously consider withdrawing the case, protecting the extra months rent in the DPS and then issuing a new S21 (or proceeding with your S8 claim) so that you have a solid accelerated possession claim. If you now face long court delays for a hearing, this route may not be much slower than continuing your current case and will definitely be faster than losing your current claim.