Tenancy eviction saga - advice appreciated

maxdacat

I have a 3 bed ex-local flat in East London and have been trying to evict the sitting tenant due to non payment of the monthly rent of GBP1,200. S 47/48 and S8 notices were filed in January 2016 after ongoing problems with arrears during the second half of last year.

The notices expired in March with a court date set yesterday. The tenant filed a defence, appeared at the hearing along with my solicitor with the result being an adjournment to May.

The tenant has disputed the arrears which have generally hovered around 4-6 months but not provided alternative evidence to my rent schedule for the last 2 years which is checked back to my bank statements.

I have been getting the rent directly (but sporadically due to HB issues) and while there is an agreement from 2009 that was signed when they moved in, it has been misplaced (see below).

As of yesterday the tenant has been more cooperative and offered to pay GBP2,400 which is about half the level of current arrears. I also have costs of about GBP2,000.

They have not said anything about moving out and providing me with vacant possession which is what I want in order to sell or re-let.

My legal rep (Legal for Landlords) have advised that a Tomlin agreement may be required if I want to settle and not go ahead with the proposed hearing in May.

The question is the best way to enforce some kind of resolution ie formally documented agreement(s) that will:
a) give me vacant possession
b) recoup some or all of the rent owing
c) recoup my costs
in order of importance.

Thoughts appreciated and thanks in advance.

maxdacat

The basic chronology is as follows:
1 August 2009 - tenancy commences
late 2009 - ongoing issues with the timing of rent payments noted and concerns raised to agent (Hamilton Fox)
early 2010 - I move to Australia
mid 2010 - issues with rent collection raised with agent requiring ongoing communication from overseas
late 2010 - serious issues with rent collection
December 2010 - last email communication with agent after which they would not respond and no further rent received
May 2011 - I get in touch with the tenant and agree to be paid rent directly after having realised the agent has gone bust having not passed some 6 month's worth of rent payments collected on to me
2011 and 2012 - I made two attempts to sign the tenant to a new rental agreement but it was unsuccessful as she was not contactable or did not return paperwork

Since then the tenant has been paying directly to me, generally fairly sporadically which makes reconciling quite difficult.

Guest101

maxdacat wrote: »

The basic chronology is as follows:
1 August 2009 - tenancy commences
late 2009 - ongoing issues with the timing of rent payments noted and concerns raised to agent (Hamilton Fox)
early 2010 - I move to Australia
mid 2010 - issues with rent collection raised with agent requiring ongoing communication from overseas
late 2010 - serious issues with rent collection
December 2010 - last email communication with agent after which they would not respond and no further rent received
May 2011 - I get in touch with the tenant and agree to be paid rent directly after having realised the agent has gone bust having not passed some 6 month's worth of rent payments collected on to me
2011 and 2012 - I made two attempts to sign the tenant to a new rental agreement but it was unsuccessful as she was not contactable or did not return paperwork

Since then the tenant has been paying directly to me, generally fairly sporadically which makes reconciling quite difficult.

Just FYI your costs are mostly unrecoverable. Sorry

Miss_Samantha

What a complete shambles!

Why did you wait for 6 months before having the tenant pay directly to you?
Why didn't get rid of the tenant years ago?
How come you did also serve a s.21 notice?
How come you waited for 2 months before started proceedings under s.8 with such arrears?

It may be a bit too late but it seems that your legal counsel is not up to the job.
As you can see judges will use whatever excuse they can find to delay eviction.

Do serve a s.21 notice now.
Your legal costs may be claimed and it will be for the court to decide.

Once you have got rid of the tenant, I would suggest that you sell.

franklee

maxdacat wrote: »

...

early 2010 - I move to Australia

...

May 2011 - I get in touch with the tenant and agree to be paid rent directly after having realised the agent has gone bust having not passed some 6 month's worth of rent payments collected on to me

...

Since then the tenant has been paying directly to me, generally fairly sporadically which makes reconciling quite difficult.

Are you still living abroad?

You say you've served S 47/48 notices, did that give the tenant both your own residential address and an address in England and Wales for the service of notices?

Have you declared to HMRC that you are a non-resident landlord and joined the non-resident landlord's scheme?

I ask the above as although it looks at first glance that the tenant has rent arrears is that still the same amount once the following is taken into account?

Rent is not due unless an address in E&W is provided for the service of notices. Once the address is given the back rent becomes due.

If the tenant has reason to believe you are resident abroad and HMRC haven't told them you are in the non-resident landlord scheme then the tenant should deduct tax at basic rate and give that to HMRC.
https://www.gov.uk/tax-uk-income-live-abroad/rent

If you had an agent they would do it but you've not got one anymore.

So unless the above is in order the rent arrears aren't quite what they seem which the judge will notice.

theartfullodger

You say sitting tenant. Did you buy this with existing tenant, if so when does he say he 1st moved in? Might not be AST, S21 may not ever be applicable - even if new signed "AST" paperwork.

agrinnall

theartfullodger wrote: »

You say sitting tenant. Did you buy this with existing tenant, if so when does he say he 1st moved in? Might not be AST, S21 may not ever be applicable - even if new signed "AST" paperwork.

I think he's used "sitting tenant" just to mean "tenant", he says in the OP "I have been getting the rent directly (but sporadically due to HB issues) and while there is an agreement from 2009 that was signed when they moved in, it has been misplaced (see below)."

However, it's certainly worth clarifying.

maxdacat

Correct Agrinnal - I have had the place since 2003 and had two long term tenants during that period. This tenant moved in during 2009.

Yes it is a shambles. I think I have been unprepared for how difficult it is to evict somebody in the UK despite going through the correct channels. Yes I could have served noticed earlier but the timing of the payments has made it difficult to keep up.

I have served noticed from a UK address as I do work there sometimes (just not right now to attend court) so they are valid. Yes, I had expected my costs may not be recoverable in the same action.

Currently I am faced with the choice of waiting until May and the possibility of no rent and further delay or coming to some agreement with the tenant hence my question on a Tomlin agreement and whether it would be appropriate.

mrginge

I think you need to clarify whether this tenant has an AT or an AST.

Pixie5740

It's an address for the serving of notices in England or Wales you specifically need otherwise your tenant can legitimately withhold rent until one is supplied. Does this UK address you've been using fit the bill?

theartfullodger

maxdacat wrote: »

Correct Agrinnal - I have had the place since 2003 and had two long term tenants during that period. This tenant moved in during 2009.

Yes it is a shambles. I think I have been unprepared for how difficult it is to evict somebody in the UK despite going through the correct channels.

Surely you mean "In England & Wales"...

It is very straightforward and simple to evict a tenant in England or Wales using the S21 "no fault" process. If you wish to use the s8 "breach of tenancy" route that's much easier for tenant to defend as all landlords or agents I've ever discussed matters know fine well.

What difficulties not down to what you've done are you specifically referring to regarding this matter, please?

Artful (Landlord btw..)

PS In Scotland the equivalent of s21 is being removed...