Possesion Order Question

helpneeded2017

Hiya all,

Some good news,

He can actually move out into his new property on the 1st August now so hoping that will sway it his way especially with the time frames involved

Pixie5740

That is good news. Your brother must ensure that he ends his tenancy correctly either by mutual surrender with the landlord or by serving his own notice. Ideally your brother wants to avoid going to court as the judge can award the court costs against him.

helpneeded2017

Okay so am going to see him tomorrow and will get him to serve his notice

Just so I am aware with regards to the deposit and the letter there if he writes asking for it now will it be used against the arrears or can he ask for it himself? Not sure how it works- he has not asked me but just thinking of questions that may come up with him with regards to costs of the move

Cakeguts

When you go to see him can you please make sure that he understands that if he gets into arrears with his mortgage he could lose his home. A mortgage might be cheaper but you need more savings than if you are renting in case you can't pay the mortgage. There are no benefits that you can claim to pay a mortgage. He might get the interest paid for a short time. If he doesn't pay the mortgage the house will be repossessed. It is very important that he understands this since he has already been in arrears with rent.

G_M

As pixie says, he must either give proper notice, or agree an Early Surrender. Whichever it is needs to be in writing.

I'm unclear if his fixed term ends on July 1st or July 2nd.

He cannot serve notice till the fixed term has ended. So he should serve notice the next day (1st day of his new periodic tenancy). Notice to expire 1 month later (ie August 2nd or August 3rd).

The landlord may claim this is not a 'full tenancy period' and the notice must expire a month later, but hopefully the LL will not raise this.

To avoid this possibility, pixie's suggestion of an agreed Early Surrender date could be negotiated with the LL for any date he wants (eg Aug 1st), but

a) the LL must agree and
b) he should get it confirmed in writing.

Ignore the deposit issue for now - asking for it back early will simply alienate the LL whomay then not agree the Early Surrender and/or contest the notice period.

Meantime keep paying the rent and, ideally, the arrears.

helpneeded2017

Hiya,

So been an update over the weekend,

The LL has written to my brother ( arrived Sat ) to say

" As a section 8 has been served I will be entering the property following your end of tenancy on July 3rd to remove any items that are present and will charge you for each item that I remove, the possession order is irrelevant as a section 8 has been served and If there is resistance I will take steps to enforce removal of items and yourselves on that day through members of my team"

As the LL knows he is suffering from depression and anxiety it is a real threatening way to write it but he is not right is he? He has to wait until the possession order date for the court to decide

He is an experienced LL with 8 properties so I am now questioning whether I am right ( as have less knowledge )

G_M

Simply serving a S8 Notice
a) does not end the tenancy and
b) does not give the LL the right either to enter, nor to steal the tenant's possessions
He first has to go to court, show them the S8, and apply ask the court) for a possession order.

Are you sure this has not happened?

Based on the letter, I would go to the police and make a formal complaint (get a crime number) for illegal harrassment (Protection from Eviction Act 1977 ). Thepolice generally resist getting involved in these housing issues (saying it is a civil, not criminal, matter) so you may have to insist. ask to see a more senior officer. And quote the Act so they understand that harrassment is a criminal matter.

You could also advise them you genuinely fear a Breach of the Peace is likely if/when the landlord 'forces entry' illegally.

I would also change the locks.

But first, please, make sure that the LL does not have a court possession order he can enforce on July 3rd.

helpneeded2017

thanks for the reply,

No he has not as its the court date with him to file a defence in 14 days and then lists the possible outcomes such as suspended possession etc when he attends so nothing has been issued

Should he add a copy of the letter into the defence paperwork as well for the court?

helpneeded2017

I have just asked him to triple check and he has a notes for defendant leaflet in the paperwork which says the claimant has asked the court for an order and to note that no one can evict you before the court date and the court will not make a decision before this date

G_M

Well there you are.

* yes, I'd enter that letter into the defence. The court won't take kindly to it.

* and as advised, take precautions against harrasment and an attempt at illegal eviction. Get that letter recorded on a police file. Even if they take no action now (very likely at this stage), it means when he dials 999 on the 3rd, they'll have a record of it.