Small Claim Court - Tenant in arrears

Mrowka

Hi Experts.
I have spent some time reading old posts regarding Small Claim Court and did not find answers to questions I have.

Brief summary of the problem. I am private landlord. Tenant is in arrears foe few months now and I have handed in the notice, like most of landlords after covid restrictions lifted.
Tenant does not respond to my emails, calls or knock to the doors. Tenant also caused small damage to the property.
I want to start the claim, but I do not want to fail due to not following Pre-Action Civil procedure.
I have sent to tenant two letters: Formal Demand for Overdue Rent, with 14 days in between. Now I need to prepare Letter before Claim.

1. Which Pre-Action Civil protocol I need to follow: Pre-Action Protocol for Debt Claims is the one to follow in my case, or should I follow Pre-Action Protocol for Possession Claims based on Mortgage or Home Purchase Plan Arrears in Respect of Residential Property? Or any other?
2. Tenant mention he can pay in instalments, but did not provide any details. Nearly since beginning tenant was paying in instalments anyway, so I think mediation is exhausted, but please correct me if I am wrong and point me in right direction.
3. Tenant needs to move out in October, so I will make claim for all the months up to October, because I assume he/she will not pay. Can I add to the total claim damage to the property at the same time or this should be separate claim?  
4. Is there anything else I need to do before I start the clam?  

Thanks.

pinkshoes

You should be issuing an S8 for rent arrears alongside an S21 for a no fault eviction. 

https://www.gov.uk/evicting-tenants/section-21-and-section-8-notices

BUT... you need to make sure everything is in order BEFORE issuing an eviction notice. Is the deposit protected? Gas safety certificate issued? There is a list somewhere of ALL the things you need to check, otherwise your eviction will fail.

This is just a request to leave. You would then need to take it to court once it expires and get bailiffs to evict which could take another 12 months given the current waiting list...

Why is your tenant not paying?

Mrowka

Section 21 served in June and section 8 to follow this week due to arrears. Why tenant is not paying? I do not know but he gave me silly reasons for delay. I have not done inspections because he is not allowing for them to happen. I have make arrangements before due date, but not allowed access. 

pinkshoes

Have you gone through the checklist to make sure it is served correctly?

https://landlordadvice.co.uk/how-to-serve-a-valid-section-21-notice-the-checklist/

Mrowka

Agency served notice, but inspections not allowed to happen. It is all recorded. 

I want to start small claims court case before tenant moves out. 

grumiofoundation

Mrowka said:

Agency served notice, but inspections not allowed to happen. It is all recorded. 

I want to start small claims court case before tenant moves out. 

That’s not what was asked. Was valid notice served?

I don’t believe you can claim for future arrears which it seemed you wanted to do in your OP? 

Ditto Re claiming for property damage - if you haven’t inspected how do you know a) what the damage is and b) how much it will cost to repair (ie how much to claim for)? 

Mrowka

I would assume notice is valid because tenant refused several times access for inspection. It is all recorded. 

There is damage visible to outside and I have seen damage inside to kitchen units and lamps.  

Slithery

Mrowka said:

I would assume notice is valid because tenant refused several times access for inspection.

Those two things have absolutely no relevance to each other.
You need to check yourself that the S21 is valid, don't rely on the agent to get it correct (they often don't).

AdrianC

Mrowka said:

I would assume notice is valid because tenant refused several times access for inspection. 

Oh, lawdy, lawdy.

This goes from bad to worse.

grumiofoundation

Mrowka said:

I would assume notice is valid because tenant refused several times access for inspection. It is all recorded. 

There is damage visible to outside and I have seen damage inside to kitchen units and lamps.  

Deposit protected, correct notice period, GSC etc? 

The fact you can’t do inspections doesn’t mean section 21 is valid - why would it? 

I am not an expert on small claims court but I believe you will need to provide a breakdown of costs in letter before action. So surely holding off until you have access, in order to gauge the extent of the damage might be worth it ? 

Mrowka

Apologies if my statements are confusing. 

Regarding the notice section 21. 

1. 4 months notice as the covid protection changed as of June. 

2. Deposit is protected and complying with the rules.  

3. Gas certificate was valid when notice was given. 

4. There is no overcharge for fee or deposit. 

5. No need for license. 

6. Disrepair- no issues. 

7. Equality act - no issues. 

On that basis i believe notice is valid. Inspection is required now, but as stated it was in date when notice was served. 

I have requested inspection several times and was not allowed, so I have done what I could. 

Regarding the breakdown of the cost. It will be estimated anyway as there is so many factors affecting the price. Estimated cost for damage of the kitchen units fronts, is to replace all of them unless it can be proven that you can get same colour and shade. Same as with all building materials it will be impossible to get new batch with the same old colour. So only solution is new kitchen fronts. 

Can I start claim with tenant still in property or I must wait till he moves out? 

Should I split cost of damage and arrears to two different claims?

Apparently value of the claim can be change so I was thinking to claim also future arrears till October, and if tenant pay, he will mention it in his defence and I will confirm it with my statements.