Section 21 / 8 advice please

GJB1980

Hi everyone I'm new forum 

I need some advice please , I have a tenant in my property who has been In there for 14 years , last 18 months ive have had alot of issues with dhss payments bits paid here and there and they are now over 3k in rent arrears , they have been using the rent payments themselves as it goes directly to them not me , It's a 4 bedroom house where I've asked £600 p/m from the start and kept it at that , they used to get issued the full £600 but it went down to £500 a while back because of the older children had left , this again I was promised they would top it up the extra £100 but never had it was always promises its coming , spoke to them middle of last year and advised a smaller house would be better for them in which they agreed and said its something there looking to do as electric / gas etc was getting expensive because its a big house

The house is run down and now needs work however it's very hard to get a contractor to work in it due to its condition and how they live , its took nearly 3 months for the annual gas to be checked as everytime they called up was inconvenient or they wouldn't answer the door

It's always been on a rolling contract , I have it signed by the tenant , also have the EPC certificate , 5 year electric certificate , gas certificate , I never took a deposit at the start as these where recommended by a friend so I trusted them and to be fair they always paid properly up until 18 months ago so I think I have everything in place , give them a rent guide too a few years ago 

Been asking them now for nearly 12 months to ask housing to pay us directly but it's never happened, not had 1 penny now for over 3 months and previous to this it was always part payments sometimes mot even half the rent , when I finally was able to speak with an housing advisor yesterday to explain the situation I was told there off the pay system because they where sent paperwork out last October but it never got filled in or returned 

I send the tenant a message on messenger asking why has this not been done to my reply I get stop getting on my case I have mental problems and don't need messages like this from you

I've had enough now , reason I've been a bit laid back with it all is because I've had a few family issues myself 

Sorry for the long rant but just checking would it be better to serve the section 8 for rent arrears or the section 21 just to get them out of the property quicker 

To cover myself I'm going to send them all the certificates Gas , Electric , EPC etc and also put another Rental guide in so they can't say they have never had any these , I will send signed delivery for proof 

Is there anything else I need to do to cover myself because I know now there going to play on the mental health card 

Thanks everyone your advice is very much appreciated 

tacpot12

I would recommend the section 21 route immediate. You wan this to get to court before the Gas Safety Certificate is 12 months old. Section 8 allows the tenant to mess you around further by paying enough that they are just less than two months behind with their rent.

You should probably try to discuss this with the tenant face to face. I would take a witness and covertly record the conversation (the judge will decide if they want to hear what that tenant said). The fact they have mental health problems needs you to try to make some adjustment for them, but the tenant also needs to work out how they will address the fact thatthey are in arrears. If they can't cope with texts from you, perhaps they should get a friend or family member to deal with you. I think you should suggest this to them as being a reasonable compromise. 

If their housing benefit has stopped because they didn't return the paperwork, you could do worse than offer to help them apply for housing benefit (or Universal Credit) again, but I would get a written undertaking from them to request that the benefit is paid directly to you. This should be the price of your helping them in this way. The judge won't like it if they have given an undertaking to do something and not done it for a reason that they cannot account for.  

Your request that the rent is paid directly to you is reasonable, given that they have mental health problems. They can't have it both ways. Make this point to the judge. Accept that it is difficult for them, but expect the judge to order them evicted if they won't get the rent paid directly to you. 

I would not recommend sending them anything now. If you have complied with law, you should be able to evidence this. The "How to Rent" and EPC needed to be given to the tenants before they moved in and when the tenancy was renewed, so as they have been their 14 years, there may be no legal requirement to have issued them with a "How to Rent" guide. I would review the information here, and take legal advice to see if it is correct that for these tenants there  was never a requiredment to have issued "How to rent": 'How to Rent' Archive - Nearly Legal: Housing Law News and Comment    If you can establish that they never needed to be issued witha How to rent, but you sent them one anyway, it should work in your favour.

_Penny_Dreadful

I’m not surprised the DHSS payments are late, that government department ceased to exist in 1988.

Don't send anything to the tenants using Signed For as they can refuse to accept it. First class post with proof of postage from a Post Office is sufficient. 

The first thing I’d do in this situation is check a valid Section 21 can be issued. 

https://nearlylegal.co.uk/section-21-flowchart/

Once satisfied that a Section 21 would be valid I’d take the belt and braces approach and issue both a Section 21 and Section 8. 

theartfullodger

Serve s21 & s8 (all valid grounds...) TODAY.

A very cheap way of sending a message to tenant.

As penny advises, check s21 will or will not be valid.

propertyrental

* Don't send anything 'signed for' Pointless as they can decline to sign. Sed 1st class from PO and get 'proof of posting'. Law says it's delivered 2 postal days later.

* don't send EPC, gas report ec - all that does is imply you hadn't provided them earlier which you say you did.

* Check S21 will be valid here:
S21 checklist (Is a S21 valid?)

* edit: as saajan_12 says below, send a clear rent statement showing for each month rent due, payments received, and balance (ie arrears)

* then send both S21 and S8 Gs 8, 10 & 11

* be warned that if the T complaints about the condition of the property, 1st to you (and you ignore) and then to the council, if the council serve an enforcement notice the S21 will fail.

* a further option is to serve a S13 notice and bring rent up to market rate. Arrears likely to escalate making S8 even easier.

saajan_12

First thing to do is send a rent statement clearly showing the rent payments due vs received, in writing with a demand for prompt payment. You need to make it clear that the lower payments werent' agreed by you, as it could look like this if it has been ongoing for some time.

Follow this up with a Section 8 notice under grounds 8, 10, 11. Yes the tenant reduce the arrears below 2 months to combat ground 8. However that means you receive a significant proportion of the arrears, so encouraging payment isn't a bad thing, and you still have the discretionary grounds (10,11) which may have good chance if the payment history is as bad as you outline. 

You can also send a Section 21 notice to give you a mandatory termination, but the notice and court hearing timescales may be longer as you're not citing a fault and might be slightly harder to recover the rent arrears. 

GJB1980

To be honest this has been a major headache I'm now financially struggling myself because I've had to borrow money from my dad to keep paying the mortgage on the rented house , I just want them out and then I'll sell the property and hopefully that then will be enough to clear theortgage and pay my dad back what I owe him 

Can a judge allow them to stay in there if the direct payment is set up , there's no way they'd be able to pay the 3k + arrears 

GJB1980

saajan_12 said:

First thing to do is send a rent statement clearly showing the rent payments due vs received, in writing with a demand for prompt payment. You need to make it clear that the lower payments werent' agreed by you, as it could look like this if it has been ongoing for some time.

Follow this up with a Section 8 notice under grounds 8, 10, 11. Yes the tenant reduce the arrears below 2 months to combat ground 8. However that means you receive a significant proportion of the arrears, so encouraging payment isn't a bad thing, and you still have the discretionary grounds (10,11) which may have good chance if the payment history is as bad as you outline. 

You can also send a Section 21 notice to give you a mandatory termination, but the notice and court hearing timescales may be longer as you're not citing a fault and might be slightly harder to recover the rent arrears. 

I have messenger messages going back over 12 months mate where I'm constantly messaging the tenant asking for rent , In all messages she acknowledges that she's in arrears and keeps saying she'll get it sorted , it's never happened and she's just got into alot more rent arrears 

Now the mental health has been thrown in so that's got me thinking she's been talking with someone in the know 

TBagpuss

Yes - I agree with @propertyrental - belt and braces.

It sounds as though you are fed up with them and wouldn't want them to remain even if they did now agree to get the rent paid to you directly - if that's the case, then offering to help them apply / reapply may not be the way you want to go, however, you could say that you are happy to meet with them with their support worker (official or otherwise) present if they wish, and that you can discuss the situation / copy communications to  a third party support worker or equivalent) if they wish and give you written authority to do so.

_Penny_Dreadful

GJB1980 said:

To be honest this has been a major headache I'm now financially struggling myself because I've had to borrow money from my dad to keep paying the mortgage on the rented house , I just want them out and then I'll sell the property and hopefully that then will be enough to clear theortgage and pay my dad back what I owe him 

Can a judge allow them to stay in there if the direct payment is set up , there's no way they'd be able to pay the 3k + arrears 

No, a judge couldn’t do that with a correctly issued Section 21 or Section 8 ground 8. The court has to award you a possession. The best the tenants could hope for is an extension of 42 days. 

macman

GJB1980 said:

To be honest this has been a major headache I'm now financially struggling myself because I've had to borrow money from my dad to keep paying the mortgage on the rented house , I just want them out and then I'll sell the property and hopefully that then will be enough to clear theortgage and pay my dad back what I owe him 

Can a judge allow them to stay in there if the direct payment is set up , there's no way they'd be able to pay the 3k + arrears 

Unfortunately you've let this drift on for far too long. If the arrears is now £3k at £500pm, that's 6 months arrears. You should have served an S8 as soon as it went over 2 months. The fact that you've received not a bean in 3 months and not taken action has encouraged the tenant to think that you are a soft touch. 
Lots of good advice above. Serve both an S8 and an S21, and do not send RD, they may refuse it.
The reality is that by the time you can gain possession those arrears may be nearer £6k, with no deposit to offset some against, and your chance of recovering this via small claims is probably minimal. 
I'd suggest an LBA before you serve the S8 and S21. That might get some arrears paid, but once you actually serve them, it's unlikely that any further payment will be made.