Apartment being repossessed... What to do?

PinkLady25

Hi

I appreciate these kind of posts pop up a lot here, but I just wondered if anyone can possibly help advise what is the best course of action for my situation.

We took on a landlord managed AST fixed term for 12 months in April '11, end of fixed term being May '12 through a letting agent. We paid the letting agent an admin fee, £600 deposit and the first month's rent on the day we got the keys and signed the contract (LA signed contract on behalf of landlord).

November '11 a letter was opened by mistake from LL's mortgage company, basically saying they were going to start court proceedings if he did not pay the morgage. Couldn't get in touch with LL and LA weren't interested as they don't manage the property. Finally spoke to LL who said 'not to worry' and that he'd get on to the mortgage co and sort it out. Naively, I took this in good faith as at the end of the day, as far as we were aware, we couldn't end the contract early. Also asked him to do some minor repairs during this phone call as we were unable to get hold of him when the disrepair occurred, again he said he'd send someone to fix it when they were in the area - never happened.

Came home Monday to find out that there is a hearing for repossession of the apartment - he hasn't paid mortgage since August '12, and was in arrears previously as far as 2008. We also have a copy of a letter to LL from mortgage co asking him to advise if there is a tenant living here, as he only has residential mortgage. Obviously they still think he is living here as this is where his mail is coming. Clause 4.5 of our tenancy agreement states 'the landlord has obtained all necessary consents from any... mortgagee... to enable him to enter this agreement'... He clearly hasn't, or why would the mortgage co be asking him to send an application to consider consenting him to let the property?

Checked with all 3 deposit schemes and it looks like the £600 deposit hasn't been logged with any of those either.

Also, the heater has now broken in the living room and it is freezing in there; currently having to sit in bedroom with door shut and the heater on in there which obviously isn't ideal. Again, can't get in touch with him to try and get it fixed, and obviously don't want to pay to get it fized ourselves as it's already looking like we've lost our deposit, even thought the flat is in better condition than when we moved in as we have painted and cleaned, replaced missing parts of flooring, filled and sanded a hole in the wall where heater had been installed.

We have found somewhere we can move into ASAP but as out fixed term AST doesn't end until May and we're struggling to get in touch with the LL, nevermind getting him to agree to a mutual surrender, do you think we are able to give notice early on the basis that the contract is basically worthless as the landlord hasn't fulfilled his obligation under the 'permission to let' clause mentioned above?

Also, would it be worth going after him for the deposit and the 3x the amount fine as he hasn't protected it?

If you got this far, well done! Thanks in advance for any help/advice you can offer

teeni

If you want to buy time to find alternative accomodation
1) write to the mortgage company and advise them you are resident and send copy of the tenancy agreement.
2) Either apply to court ona n244 form asking to be heard at the proceedings ( bring copy of the tenancy agreement with you or attend the hearing with a copy of the tenancy agrrement and when they call the case ask the court to be heard and advise that you are asking the court to suspend the possession order should one be granted by 2 months under the Mortgage possession ( tenants protection from eviction act 2010) They may advise you to pay the rent to the mortgage company if the possession order is granted. You must have advised the motgage company of your presence and asked them to suspend the warrant for 2 months, even if they refuse it doesnt matter as the court has the final say.

As you have somewhere to go you can only surrender the tenancy early with the agreement of the landlord which he is unlikely to do if he intends to use the rent payments to prevent the property being repossessed. You may succeed if you let him know that if you are evicted you will sue him for breech of agreement .
The tenancy agreement is not worthless, the agreement between you and your landlord is perfectly valid and remains so until such time as you either surrender by agrement or the property is repossessed. If you leave you are in breech any argument regarding the right to let the proerpty is for his mortgage company to sort out.
You can apply to the court for landlords faliure to protect the deposit but if he subsequently pays the deposit in before the hearing you will not succeed in getting the three times fine, and this can only be done whilst the tenancy is in force. If he has not protected it then you may succeed in having the deposit protected and being granted the fine, but this is very rare these days.

regarding the disrepair contact the private housing officer at the lcoal authority if the landlord can not be found they can arrange for this work to be carried out and bill the landlord.

finally contact you r local shelter who can advise you fully on all these matters to ensure you kinow exactly what you are doing.

good luck

Yorkie1

The contract is not worthless despite the LL's failure to get the consent to let. You are liable unless and until the LL releases you from the tenancy, or it ends in May.

As you are still in the tenancy, in law you can start proceedings for the 3x deposit claim, but court cases have basically made this an unlikely outcome. I also suspect you'd never see a penny of any judgment even if successful, if he hasn't paid his mortgage - so you'd be left out of pocket on the fees and award even if theoretically awarded to you.

Have you tried writing to the LL at the address on the tenancy for service of notices? You must do so; send it from 2 separate post offices and get certificate of posting (not recorded delivery as he's likely to refuse to sign for it).

Firstly, notify him of the broken heating and ask him to make arrangements immediately to provide you with an alternative heat source and to notify you within 7 days of what he will do to fix it properly.

Also, tell him that you are aware that he has not protected your deposit as required by law; ask him to do so within 7 days and to provide you with the prescribed information.

Out of interest, was the notice about the court hearing addressed to The Occupier or to him - have you had a letter addressed to The Occupier yet? If you've had the letter, I'd also advise him that you are aware of the repossession proceeding hearing on xxx date and state that in view of the obvious uncertainty this is causing you, you are requesting him to agree an early surrender of the tenancy and to release you from the tenancy so that you can arrange alternative secure accommodation. You never know, he may agree - and if he does, come back here and we'll advise you properly.

Finally, make sure you go to the hearing and let the court know - if they know you exist, they can grant you 2 months' notice to get out of the house, rather than bailiffs turning up immediately.

PinkLady25

Thank you for your reply.

My next question is, how do we try and negotiate early surrender if we can't contact the LL? I've tried calling a number of times, and he has said before he's often out of the country so possibly won't respond to any letter we send to the address the LA gave us. The LA apparently know LL's brother in law and tried to contact through him - no joy.

TBH we pretty much accept we're likely to lose the £600 deposit.

The ideal situation would be to move out of here before the next rent is due, leaving the fixed term 3 months early. So we'd owe £1350 for 3 month's rent til the end of the agreement which doesn't even cover the mortgage arrears... Say he did try to sue us for that amount, and if so would we be able to counter sue for the deposit? As maybe then he would rethink suing us for the outstanding rent.

Plus, if the flat is repossessed, can he continue to still charge rent on a property that's no longer his anyway?!

Thanks again!

Yorkie1

If you cannot contact him then in reality you're not going to be able to agree an early surrender. But if you don't write the letter then you're not going to be able to do so anyway.

You need to ignore the mortgage repossession issue, in a way, because it does not have a bearing on your situation unless and until the court orders the property to be repossessed. It's possible that the LL will pay enough to stave off repossession. You will be liable for the rent and, if sued in the county court, would lose.

I don't know whether more experienced members on here would advise that this is a situation where it would be appropriate to withhold your last month's rent to compensate for the possible loss of deposit?

PinkLady25

Thanks Yorkie

We haven't sent a letter as yet - we have arranged to see a solicitor who specialises in these kind of disputes, just for an initial consultation, as if there is a legal way for us to end the tenancy without the landlord agreeing (which there may not be, but at least we will know) then they will know the best way of going about it. Also going to ask their advice on what to include in the letter, timeframes etc.

We've not yet had the letter to the occupier - I was keeping an eye out for any letters which looked like they were from the court which is the one that was sent to LL at our address Monday.

Again, another question - does the letting agent have any recourse in this? As the mortgage repossessions (protection of tenants) act says they shouldn't have advertised the property without evidence that the landlord has consent to let. In the very least, would you recommend shopping them to ARLA?

franklee

Unfortunately the tenancy is binding on you but not on the lender. This is why we have a sticky tread advising tenants so check for consent to let or a BTL mortgage.

So you are bound to pay rent until the end of the fixed term unless the property is repossessed in which case you'd need to attend the repossession hearing and try to find out if and when your liability to pay rent will end. Quite how this pans out if the landlord gets a suspended possession order I do not know.

You may have a claim from the agent for failing to check for consent to let but in any case do report them to ARLA if they are members.

As for deposit protection, as far as I know the law is toothless when it comes to enforcing that so withholding the last months rent is the traditional way - once you know when the last month is.

Next time reference your potential landlord better.

silvercar

Given that you are happy to move out, your best strategy may be to not speak to the landlord. Go to the court and use the Mortgage possession ( tenants protection from eviction) act of 2010 to agree a delay in repossession until a date of your choosing within 2 months of the court date.

That will give you a final date for your contract. You move out by that date and calculate how much rent you will owe (including return of your deposit) by that date. That could mean not paying the last months rent and informing the landlord to use that for the rent.

At least that way you can move out without breaching your AST as the AST will end on the date of repossession. (Technically it won't end, but it will be the landlord who is in breach by not supplying you the property from that date.)

PinkLady25

Hi silvercar

Could you just clarify a couple of things for me?

We have paid rent for this month until 13th Feb and next month's rent is due 14th Feb. We are likely to be able to get another place before 14th and so ideally would like this to be the end date of the contract.

The court hearing is scheduled for 9th March - would your solution be viable given these dates? Or would we have to remain in the property past that date?

It is extremely unlikely that the landlord is going to attend the hearing, as the summons and paperwork have come to our address and the mortgage co don't have his new address from what I can gather. We didn't give it to them as legally we weren't sure if we were able, and they haven't formally requested it in writing, just the field call agent asking if we have a forwarding address. And we haven't as yet written to him as waiting for solicitor to advise as to content of letter, i.e. request deposit protection info, fix heater etc.

To be honest, after all of this, our main goal is to get out of the property ASAP without being liable/likely to be sued for the rent, and ideally, to get our deposit back which we do understand may be a long shot.

Thanks again.

BitterAndTwisted

Get your letter off to the landlord asap. Send it by First-Class post and keep a copy of your letter and the proof of posting. My feeling is that a landlord who is receiving rent and not paying the mortgage and then gets repo'd is unlikely to follow you through the courts for not honouring your contract. You will be taking a risk by moving out of the property before the court date but it's for you to decide whether it's a risk worth taking.

I'd be minded to sit tight and not pay the rent when due on the 14th of February and move out after then, possibly in March after you've attended court. That way, you'll be clawing back your deposit which I daresay you will never see again.

PinkLady25

Hi bitterandtwisted

Your solution seems to be what most people IRL are suggesting; and keeping the rent in a separate account just in case it doesn't get reposessed somehow? Can't see this happening as he hasn't paid since August and he was informed in November of the arrears and despite promises to 'sort it out', he clearly hasn't as no more payments have been made, and according to the mortgage co they've tried numerous times to get in touch with him (on a different mobile no to the one we've been given - we tried it, straight to voicemail) and have sent texts too.