Small Claim Court - Tenant in arrears

Slithery

Mrowka said:

3. Gas certificate was valid when notice was given. 

Irrelevant. Was there a valid gas certificate when the tenancy started?

[Deleted User]

Mrowka said:

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.

You need to stop showing up at the tenant’s home knocking on the door, stop emailing and messaging the tenant or you might find yourself on the wrong side of a harassment case. 

How you recover the money depends on which notice is used to evict the tenant and no the tenant does not need to leave the property in October. 

If you go down the Section 8 route (I’m assuming ground 8 has been used) then when you apply to the court for your possession order you can also request a money order. That requires forms N5, N119, N215 followed by N1 to recover the arrears. 

If the eviction is through the Section 21 route that’s when you’d use Money Claim Online to recover the arrears. 

You can’t request money the tenant does not yet owe and I don’t think you can claim for damage to the property at this stage whilst the tenancy is still in force. 

Did you get round to reading the useful advice the gone but not forgotten greatcrested gave you in your previous thread? 

https://forums.moneysavingexpert.com/discussion/6127270/landlord-vs-covid19

Mrowka

Slithery. All certs were in date when tennancy started. 

Lover_of_Lycra. When tenant is not responding to any way of communication I believe I have duty of care to check if he is ok. 

I did find help provided by greatcrested useful, but on the end, property was let out via agency. 
So at the moment I have to wait till October and educate myself regarding eviction and claim. 

AdrianC

Mrowka said:

Slithery. All certs were in date when tennancy started.

So the EICR and GSC are currently in date?

Lover_of_Lycra. When tenant is not responding to any way of communication I believe I have duty of care to check if he is ok.

Your belief is trumped by his legal right to ignore you completely and be left in quiet enjoyment of the property.

I did find help provided by greatcrested useful, but on the end, property was let out via agency.

It's still your legal responsibility, whether you hire somebody else to do the actual work or not.

So at the moment I have to wait till October and educate myself regarding eviction and claim.

Yes, you need to educate yourself about the business you run.

ciderboy2009

AdrianC said:

Mrowka said:

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

So at the moment I have to wait till October and educate myself regarding eviction and claim.

I would also suggest that you need to educate yourself regarding "betterment".

Mrowka

AdrianC. Tenant can execute his legal rights when he comply with legal obligations he signed for. To be honest I am confused. Are you suggesting tenant and landlord are not equal? One have more rights then the other one? 

EICR & GSC were in date when tenancy started. Now are not due to covid restrictions and tenant refusal. 

If I have not followed the process correctly than please point it out.

davilown

Mrowka said:

AdrianC. Tenant can execute his legal rights when he comply with legal obligations he signed for. To be honest I am confused. Are you suggesting tenant and landlord are not equal? One have more rights then the other one? 

EICR & GSC were in date when tenancy started. Now are not due to covid restrictions and tenant refusal. 

If I have not followed the process correctly than please point it out.

Yes I think you are very confused - the tenant has a lot more legal rights than you as it’s their home, not yours, until they decide to leave , or bailiffs evict them.

By the way, that could be a very long time till you get to that point.

grumiofoundation

Mrowka said:

AdrianC. Tenant can execute his legal rights when he comply with legal obligations he signed for. To be honest I am confused. Are you suggesting tenant and landlord are not equal? One have more rights then the other one? 

EICR & GSC were in date when tenancy started. Now are not due to covid restrictions and tenant refusal. 

If I have not followed the process correctly than please point it out.

If you have clear evidence tenant has prevented GSC/EICR being carried out this may mean section 21 is valid, despite lack of valid GSC, or it may not? But you said earlier gas safety was valid when notice was given, so has expired between June and now?

To clarify are you in england?

Seems like issues with GSC can be sticking point. See link for example (first page more relevant until descent into silly comments comparing tenants rights to human rights atrocities).

https://forums.landlordzone.co.uk/forum/residential-letting-questions/1123103-tenants-not-allowing-access-of-gas-engineer

https://www.londonpropertylicensing.co.uk/court-appeal-rules-law-gas-safety-certificates-and-section-21-notices

Not sure what your first sentence means. Tenant and landlord have different rights. Property is the tenants home.

If section 21 not valid then you can still apply for court order using section 8. 

AdrianC

Mrowka said:

AdrianC. Tenant can execute his legal rights when he comply with legal obligations he signed for.

It really, really does not work like that.

To be honest I am confused. Are you suggesting tenant and landlord are not equal? One have more rights then the other one?

I'm not "suggesting" it.

I'm stating it as an unavoidable fact of life in the business you chose to run, and one that you really NEED to understand.

EICR & GSC were in date when tenancy started. Now are not due to covid restrictions and tenant refusal.

Then, unless you can show substantive evidence of a consistent series of serious attempts to get them done, your s21 is invalid.

ProDave

So reading this and how much "rights" a tenant has, I conclude the following:

EVEN if all paperwork, EICR, gas etc was valid at the start of a tenancy, if the tenant simply ignores all correspondence and refuses access and gets away refusing access until EICR, gas etc have expired,  then through no fault of the landlord, An S21 will be deemed invalid and thrown out of court.

Is that a correct understanding of the situation?