Bank commenced possession proceedings in respect to property I am renting?

Flyer333

Unfortunately it has already gone out because of the bank holiday.

The letting agents placed my deposit in the DPS at the start of the tenancy.

The issue is not what I should do next (write to lender to request two months notice, if no favourable response, apply to the court for the same notice), it is whether or not my tenancy agreement is actually enforcable from the LL/LA perspective, considering that the agreement is unauthorised.

franklee

Flyer333 wrote: »

I can not find any information about whether or not the tenancy agreement is still valid though, because the LL/LA do not have permission to let the property, so that must void the agreement in some capacity.

It doesn't. be great if it did and I can see your point of view but unfortunately the tenancy agreement is still binding on you and the landlord.

Flyer333 wrote: »

it is whether or not my tenancy agreement is actually enforcable from the LL/LA perspective, considering that the agreement is unauthorised.

I'm afraid it is until such time as the repossession is going ahead for sure (many times they are staved off at the last minute). Even when you know the repossession is going ahead you'd need to take specific advice on when you are free to leave in order to make sure you can't be chased for more rent. To summarise the tenancy is binding on you (and your landlord) but not the landlord's lender as there was no consent to let.

If you are on a periodic tenancy it's straightforward as you can serve your own notice.

If you've still got months of fixed term left then you are in limbo unless you can get the landlord to agree to release you early. If he won't agree then it's up to you to find out what you can about the repossession and when you are free to leave which is easier said than done when no one will talk to you. Once you've done the above reading I'd suggest you give Shelter a call and ask at what point you are no longer liable for rent. Or (and) get specific legal advice. Please come back and let us know what they say! Plus I'd go along to the hearing, I'd be confirming when you can leave and when your rent liability ends.

Next time check for consent to let before you take the tenancy so you will know that if there is a repossession you will be given proper notice and can plan your leaving in an orderly fashion.

Flyer333

Thanks for the message. I have considered my plans and will go ahead with the following:

1. Write to the lender requesting two months notice to vacate the premises should they be successful in their possession order.
2. If they respond unfavourably I will attend court and request the same thing from the judge or whoever is in charge of the hearing. I already have the correct form ready to fill in. (I have also made a note to ask for dates I would be leaving and when my rent liability ends - thanks for that)
3. I have just paid for May's rent, so am covered until around 2nd june. The hearing is on 12th, so I will write to the letting agent to advise that I will be putting the rent to one side, and release the money to them if there is a positive outcome. If there isnt I will not be paying any more rent to them.

4. I am already looking for alternative accommodation. I am strongly of the impression that the tenancy agreement should be dissolved, as it is an unauthorised agreement.

I have emailed Shelter and CAB asking them to get in touch with me, as I am unable to phone them.

I wonder why the letting agency did not check the landlord had consent to let? Shouldnt they be pulled up on this? They are supposedly quite a large agency in London, with many properties in their portfolio so I stupidly assumed they would be legit!

Ulfar

Letting agents don't need any qualifications or training, they also work for the landlord so don't really care about the tenant.

They are much more interested in getting your money in.

I have had good and bad Landlord's but never a good letting agent.

franklee

Flyer333 wrote: »

I wonder why the letting agency did not check the landlord had consent to let? Shouldnt they be pulled up on this? They are supposedly quite a large agency in London, with many properties in their portfolio so I stupidly assumed they would be legit!

The guidance to the Mortgage Repossessions (Protection of Tenants etc) Act 2010 says they should check, but that's just guidance. ARLA says they should check so once it's over, if they are in I'd ARLA report them. Doubt ARLA would do much but I'd state that you thought their members would do better! I would also ask the agent what their complaints procedure is and put in a complaint that they did not check. None of this will help you but if enough people complain it may help improve practices eventually. I'd be curious to know what agent it is.

As I mentioned before you may have a claim against the agent (as well as the landlord) for the extra expenses the lack of consent to let has caused you. Useful if the landlord is too broke to pay.

I would do as you propose over the rent too. I'd wait till you know you will be in the property for all of a period before paying that months rent. That way if you have to leave partway though a month you can pay the rent pro-rata according to the number of days you actually have.

Good luck. I hope you will let us know what Shelter say and how it all goes! Make sure you tell Shelter when you fixed term ends, your initial post said Feb 2014. That's months away so you need to be sure you can't be chased for more rent if you move. Is there a break clause in the tenancy agreement that allows you to give notice?

Flyer333

Sorry if this is a thick question, but why would I be chased for more rent if I am not able to live in the property?

ruggedtoast

Actually the landlord is obliged to give you somewhere to live for the duration of the agreement. Write them asking when their spare room will be ready, might wake them up.

franklee

Flyer333 wrote: »

Sorry if this is a thick question, but why would I be chased for more rent if I am not able to live in the property?

What I meant is if you move and then the repossession is staved off the tenancy agreement will mean you owe rent till the earliest you could have served notice. That is until any break clause in your tenancy allows or until the end of the fixed term. The problem is that repossessions don't always go ahead if the landlord can defend it successfully, or if it's suspended etc. It would depend on what happens at the hearing.

The problem with the Mortgage Repossessions (Protection of Tenants etc) Act 2010 in your case is that IIRC the lender's two month delay starts from when they grant it. If it starts too early then some or all of that two months will be used up waiting to see if there will be a repossession so it won't be time you can use knowing you will be moving for sure.

Shelter campaigned for the new act which is why I suggested you asking them how to use the two month delay when you do not know if the repossession will go ahead yet and are unable to serve notice as you are only three months into a twelve month fixed term. I hope you do let us know what they they say as you are one of the first practical repossession examples of a tenant still bound by a long fixed term we've had on the forum since the new act came in. That way your information will help other tenants as hopefully you have been helped a little in this thread.

Also check for a break clause that would allow you to serve notice soon. That would allow you to move and avoid the hassle.

Don't worry you're question is not thick, it's a combination of being a complicated problem, together with the new act for which there aren't many practical examples yet, and my humble attempts at condensing a lot of information into a short post.

Summary of what I'm suggesting you do in addition to what you're already doing:

1. Read the links from G-M post, particuarly:
http://england.shelter.org.uk/get_advice/repossession/repossession_by_a_landlords_lender
http://www.gov.uk/government/publications/mortgage-repossessions-protection-of-tenants-etc-act-2010-guidance

2. Tell Shelter the date of the hearing and the date your current fixed term should end (Feb 2014).

3. Ask Shelter when the two months delay from the lender will start.

4. Ask Shelter when your liability to pay rent will end. Including what happens if the repossession is delayed or the landlord defends against it successfully.

5. Check your tenancy agreement to see if there is a break clause that allows you to serve notice and leave.

Flyer333

Update:
I received a letter from the lender's solicitor:

"___Bank Plc undertakes not to enforce any Order for Possession of the Property for a period of 2 calendar months commencing on the date of this letter, PROVIDED THAT, any rental payments falling due within the period in which HSBC Bank Plc agrees to postpone the enforcement of the Possession
Order are paid direct to HSBC Bank Plc and pursuant to section 1(7) of the Mortgage Repossessions (Protection of Tenants etc) Act 2010 the payment of any such rental monies direct to HSBC Bank Plc is not to be regarded as creating (or as evidence of the creation of) any tenancy or other right to
occupy the Property.” Rental payments should be made by cheque, sent to us rather than directly to our client. However please make the cheques payable to ____Bank Plc."

I was wondering if someone could advise on this.
I mean, I do not want to pay rent to two different parties here.

My take on this is that rent should be paid to the bank between the date of the hearing and the date I move out?

Bit confusing really.
I have already emailed Shelter for advice

Dave_the_Ginger_Cat

Flyer333 wrote: »

My take on this is that rent should be paid to the bank between the date of the hearing and the date I move out?

Yes, absolutely.

And do remember to stop the standing order from your bank else you'll risk paying twice

And do continue down the Shelter route - they are experts in this topic.

Shelter can advise on this, but I would be inclined to serve notice irrespective of the existence of a break clause, and to notify the agents in writing that you'll be paying the rent directly to the lender in accordance with the letter you've received.