Seeking possession of let property

aetbaar

Hi

I wanted some advice in relation to seeking possession of a let property without having to go to a solicitor and incur even more charges.

I have a tenant who has been behind with rent payments for several months and has partly paid some of the rent but he is over 2 months behind on rent payments now

I issued a Section 8 notice at the end of February asking to vacate the property in 2 weeks based on rent arrears and rent being over 2 months late. I then issued a possession claim online using the PCOL web site and forms n5, n119 and n120 were then completed and submitted to the courts and I was given a hearing date for 2 months later (earliest time available I was told). I went to court the tenant did not turn up but the judge said that he could not proceed as I submitted the PCOL form 12 days after the notice for section 8 was served and it needs to be 2 weeks minimum. It does not make it clear what ‘issue proceedings’ means as when submitting a claim it says ‘The claim shall be deemed to be served on the fifth day after the claim was issued irrespective of whether that day is a business day or not.’ So does that mean that the actual proceedings start on day 12 plus the 5 days – on the notice it says date of service was 15th March and the notice for section 8 was served on the 26th Feb so although I did the claim online on the 10th March is that still not valid as the date of service is 15th March

I have been told I need to go through this process again and pay another £100 fee- does anyone have any advice here- should I contest this

I also submitted a section 21 notice on the same date as the section 8 notice and as 2 months have now expired I understand I can also seek possession based on this- does anyone know if I can use the PCOL service for this as it seems it may be easier to seek possession under section 21. Also if I do this it says the fixed term of the contract needs to have come to an end- what is the fixed term – the tenant is in second year of the tenancy and we had a new AST drawn up for the second year- we are on month 5 of this agreement and the tenant or landlord can end the tenancy at any time during the 12 month period with 2 months’ notice- does this mean the fixed period is only the 2 months from when I served the section 21 notice or is the fixed term 12 months in which case I can’t seek possession under Section 21?

I would greatly appreciate advice on the 14 days issue regarding section 8 notice and if I have any grounds to contest the fact that although I served the notice on the 26th Feb and started the online claim process on the 10th March the date of service was 15th March and the court hearing was only the end of April so I did leave 15 days

Also if I have no grounds based on above then should I follow the same PCOL process based on section 21 this time which was served on 28th Feb and now 2 months are expired I should be able to proceed online and seek possession?

Thanks in advance for any advice

thesaint

What date was the Sec 8 served?
What date did you submit the PCOL?

aetbaar

submitted section 8 on the 26th february and then completed online pcol and submitted claim on the 10th March which is only 12 days I know but it said the service date will be 5 days after you complete the online form so effective 15th March

if i have messed up here can i now do another application based on the section 21 notice as that may be easier- can i use PCOL for this too and also can someone confirm what a fixed term is in an AST as it says if you are in a fixed term you cant seek possession under section 21

this is the second year of tenancy for which a new contract was drawn up and it is a 12 month contract in which either party can give 2 months notice to terminate at any time

harrys_dad

I have never heard of a "fixed term contract" where "either party can give two months notice at any time". That doesn't seem like a fixed term to me. Who drew up that contract? Are you a member of a Landlords Association like RLA? They may be able to advise you.

Are the tenants still in arrears? If so, by how much (in terms of months)? Are you aware that even if you go to court under Section 8 you will not get possession if by that time they reduce arrears to 2 months rent less £1?

What do you want to achieve here? Do you want to evict the tenants or do you just want them to be up to date in their rent?

It seems to me that you are being caught out by a combination of your inexperience in running a business as a landlord and your desire to minimise costs.

There are other questions to consider too, if any procedure to evict is going to be successful. Have you protected the tenant's deposit? Did you reissue proscribed information when the new tenancy agreement was signed? Is there an up to date gas certificate?

thesaint

aetbaar wrote: »

submitted section 8 on the 26th february and then completed online pcol and submitted claim on the 10th March which is only 12 days I know but it said the service date will be 5 days after you complete the online form so effective 15th March

I think it is quite clear that you have messed up.

aetbaar wrote: »

if i have messed up here can i now do another application based on the section 21 notice as that may be easier- can i use PCOL for this too and also can someone confirm what a fixed term is in an AST as it says if you are in a fixed term you cant seek possession under section 21

You can't do an online Sec 21.
You can't start the court process for a Sec 21 within the fixed term.

aetbaar wrote: »

this is the second year of tenancy for which a new contract was drawn up and it is a 12 month contract in which either party can give 2 months notice to terminate at any time

Do another PCOL for the Sec 8.
Your contract sounds dodgy.

aetbaar

it is a contract from an ARLA registered estate agent- quite a large reputable estate agent

i just want to evict them to be honest at this point

it is an AST which runs for a period of 1 year and has the right for either part to give notice of 2 months at any time and as such there is no fixed period to my knowledge

the first year we had a fixed period of 6 months within the 12 month contact and only after that could either party give 2 months notice- this is fairly standard

i have evicted a tenant before based on section 21 through the courts but that was about 5 years ago so cant remember the details fully

what is the best route to evict the tenant using section 21 as the 2 months notice has now expired and under section 21 then if they dont leave in 2 months i should be able to evict them- is this a form n5b using the accelerated route - my only conecrn is the fixed term question - i have asked the agents and am awaiting a reply

Pixie5740

This is confusing, either the tenancy is a fixed term or not. You say the tenancy runs for a period of one year which sounds like it is a 12 month fixed term. When did the original tenancy agreement start and have any more tenancy agreements been signed since then?

RAS

Are you in England, Wales or Scotland as the law is different?

aetbaar wrote: »

it is a contract from an ARLA registered estate agent- quite a large reputable estate agent

i just want to evict them to be honest at this point

it is an AST which runs for a period of 1 year and has the right for either part to give notice of 2 months at any time and as such there is no fixed period to my knowledge

If you are in England or Wales then your reputable estate agents do not know England/Welsh tenancy law.

You need to get hold of a copy of the contract and type out exactly what it says.

If the deposit secured in a recognised scheme? Was the prescribed information sent within 30 days?

G_M

The original tenancy was a 6 month fixed term.

Then a 12 month fixed term was signed, with a Break Clause at 6 months subject to 2 months notice.

Then a further 12 month fixed term was signed, again with Break Clause, but this time without the requirement to wait 6 months.

That is my understanding of the intent. I don't see why it should not stand up in court.

So if the Break Clause was implemented by giving the required 2 months notice, then the tenancy would end after that period.

However to evict, a S21 Notice giving at least 2 months notice to expire on or after the (new) tenancy end date would be required. This could be given along with the Break Clause notice, or at any time after.

jjlandlord

If a s.21 notice can comply with the requirements of the break clause, the landlord may just serve a s.21 notice, though, then start proceedings as soon as it (and thus the fixed term tenancy) has expired.

aetbaar wrote: »

it is an AST which runs for a period of 1 year and has the right for either part to give notice of 2 months at any time and as such there is no fixed period to my knowledge

This is, in effect, correct since indeed either party can give notice to expire at any time.

aetbaar

Thanks for the useful advice - s21 was served over two months ago and so it has expired

the deposit is with the deposit protection scheme

the front of the contract says:

ASSURED SHORTHOLD
TENANCY AGREEMENT
[This document should not be used to create a tenancy where the initial fixed term is to be for more than three years;
you should consult a Solicitor, as such an agreement must be created by Deed]
IMPORTANT
 This Agreement contains the terms and obligations of the Tenancy. It sets out the promises made by the Landlord to the tenant and by the tenant to the Landlord. These promises will be legally binding once the Agreement has been signed by both parties and then dated. You should read it carefully to ensure it contains everything you want and nothing that you are not prepared to agree to. Whilst every attempt has been made to compose this Agreement using plain and intelligible language, it inevitably contains some legal terms or references.
 This Agreement is intended to create an Assured Shorthold Tenancy as defined by Section 19A of the Housing Act 1988 as amended and shall take effect subject to the provisions for recovery of possession provided for by virtue of Section 21 of that Act.


It also says regarding break clause:

Any time during this Tenancy either party may provide a minimum of two months written notice to the other which should be addressed to the Agent: At the end of such notice the tenancy shall end and all obligations and responsibilities shall cease; subject nevertheless to any claim by either party against the other in respect of any breach of any of the terms and conditions of the agreement


I Assume this means i am ok as two moths notice is served via s21 as per the contract and now i can start court proceedings

next question is can i do this via pcol or via the accelerated method using form N5B?