Is a Full Months Rent Payable Following Forced Eviction Part Month?

SanMiguel80

silvercar said:

If that is true and the rent arrears are only for the increase in rent, then the whole eviction notice may be invalid.

Though here:

I only have a couple of good valid arguments which means I will either win or I won't on these points. I am probably going to agree to pay some of the rent arrerars demanded, such as arrears for rent at the rate in which I agreed to be guarantor for but not for the 30% increase which they failed to obtain my consent for. 

you suggest that there were already rent arrears. In which case the landlord may be able to claim eviction under a different clause, for persistent rent arrears even if they don't total 2 months rent owing. 

One option may be to offer a cheque in full and final settlement. 

The eviction has already happened last year following a S.21 notice and court action. The tenant refused to pay the 30% increase and no rent at all once the S.21 was served on him. There were no arrears prior to the S.13 rent increase. 
Their sols are arguing as the tenant remained in situ and did not appeal the increase he by default agreed the rent increase, which is perhaps a valid argument. My defence is that this did not extend to the guarantor and my consent would have still been required as the S.13 increase was outside the original agreement. I am hoping this defence of mine holds up.
I am going to offer to pay all rent arrears based on the original rent in the TA just to get rid of this matter, I am hoping they accept.

SanMiguel80

LightFlare said:

I’d be chasing the irresponsible person who got me in the mess - the tenant 

Trust me I have tried, he refuses to engage with me or anyone on this matter and only get abusive when I contact him.

SanMiguel80

GDB2222 said:

You are right that, in the small claims track, there's not much scope for allocation of costs. That's subject to some caveats.

First, at this stage, the claim won't have been allocated to the small claims track, and you cannot guarantee that it will be, although it's likely.

Second, you must act reasonably, and not run up costs for the claimant unnecessarily. 

In your position, given the amounts involved, I would be seeking legal advice on whether the guarantee agreement is valid. If it isn't, you don't have to pay anything, so it's worth an hour of a solicitor's time. 

Your original question, about whether you are liable for the final part-month's rent: Nobody here knows the answer, apparently, and it's not worth spending a lot of money seeking legal advice on £600. One practical solution is to put it in as part of your defence, and let the other side spend time and money trying to justify their stance. 

Your point about the S13 not being valid is correct. 

If you are unsure what to do, you can file an acknowledgement of service, which gives you an extra 2 weeks to file a defence. 

Many thanks for your reply.

Yes, I have been advised before to try keep it simple and stick to say two or three main points and not to avoid raising too many issues that could require a full days hearing and therefore could be expensive. I will either win or I won't on these two or three main points. 

I have previously engaged with a solicitor (at £350 p/h + VAT) who advised me the LL had invalidated the agreement when they increased the rent through S.13 without my consent and I therefore had no further obligations under this agreement and as there were no arrears prior to this I have nothing to pay. This point has been put forward to their sols who say otherwise, and reference the Deed of Guarantee as their argument.

I have been previously advised that the S.13 rent increase would be valid, however this would invalidate the rent review clause in the TA as they both can not be valid at the same time. This would be a significant change to teh agreement and any such change would require my consent which they failed to obtain.

I will put in my defence your suggestion regarding the part month rent owed.

GDB2222

Apportionment of rent – where a tenancy ends mid-term

Rent to be paid in advance

It is a common law rule that rent to be paid in advance cannot be apportioned on a time basis, regardless of how the tenancy was ended, unless there is clear wording in the tenancy agreement that states otherwise.[4] As such where, for example, a monthly tenancy with rent to be paid in advance on the 1st of the month ends before the end of a period of the tenancy, the tenant will:

• not be entitled to a proportionate refund of rent paid in advance, and

• owe the full month's rent that fell payable on 1st

This rule does not apply to assured shorthold tenancies granted on or after 1 October 2015 where the tenancy ends as a result of the service of a section 21 notice.[5]

[5]  s. 21C Housing Act 1988, as inserted by s.40 Deregulation Act 2015.

https://england.shelter.org.uk/professional_resources/legal/costs_of_renting/rents_and_rent_increases/payment_of_rent

I have no idea whether that's correct, but Shelter tend to be pretty good on all this, so I'd trust them. In any case, you can reference s. 21C Housing Act 1988  in your defence, and leave the other side to either argue it or cave. 

SanMiguel80

GDB2222 said:

Apportionment of rent – where a tenancy ends mid-term

Rent to be paid in advance

It is a common law rule that rent to be paid in advance cannot be apportioned on a time basis, regardless of how the tenancy was ended, unless there is clear wording in the tenancy agreement that states otherwise.[4] As such where, for example, a monthly tenancy with rent to be paid in advance on the 1st of the month ends before the end of a period of the tenancy, the tenant will:

• not be entitled to a proportionate refund of rent paid in advance, and

• owe the full month's rent that fell payable on 1st

This rule does not apply to assured shorthold tenancies granted on or after 1 October 2015 where the tenancy ends as a result of the service of a section 21 notice.[5]

[5]  s. 21C Housing Act 1988, as inserted by s.40 Deregulation Act 2015.

https://england.shelter.org.uk/professional_resources/legal/costs_of_renting/rents_and_rent_increases/payment_of_rent

I have no idea whether that's correct, but Shelter tend to be pretty good on all this, so I'd trust them. In any case, you can reference s. 21C Housing Act 1988  in your defence, and leave the other side to either argue it or cave. 

Thank you, that is just the evidence I have been looking for. As the tenancy ended as a result of a S.21 being served I therefore can challenge the full months rent being claimed. 

Yes I agree, Shelter are pretty good for advice.

silvercar

If the court agreed with you on the apportioned rent for the last month, it could still find against you for the remainder.

Even if the court finds that the higher rent shouldn't be your problem (though I would expect that the tenant has a duty to notify their own guarantor), the fact that the tenant stopped paying any rent once the S21 was issued is going to be a bone of contention.

At the very least I would expect that you would be on the hook for the missing rent at the original level from when the tenant stopped paying. Potentially with interest. Paying this amount now at least may make the court more sympathetic.

saajan_12

I can't see the S13 invalidating the entire tenancy or guarantee. At most, the S13 would just be invalid and ignored, with the obligations under the tenancy agreement remaining in force as if there was no S13. Arguably that would include the RPI based increase which was in the agreement you saw ahead of signing the deed. That's assuming the rent increase clause was specific, not a "LL may increase, no more than RPI, if they feel like it". 

Re the partial months rent -
Per Section 40 of the Deregulation Act 2015, if the tenancy is terminated mid month as a result of a S21 notice and if the tenant paid the full month's rent upfront, then the LL would have to pay back the pro rata rent for the days the tenant wasn't there. 

In this case, the tenant hasnt' paid upfront, but I'd expect you could argue the LL's damages don't include the rest of the month, as if all parties had acted correctly, the most they'd have received is the rent upto the date the tenant vacated. Also to confirm, it was a S21 not a S8 notice given the rent arrears?

SanMiguel80

silvercar said:

If the court agreed with you on the apportioned rent for the last month, it could still find against you for the remainder.

Even if the court finds that the higher rent shouldn't be your problem (though I would expect that the tenant has a duty to notify their own guarantor), the fact that the tenant stopped paying any rent once the S21 was issued is going to be a bone of contention.

At the very least I would expect that you would be on the hook for the missing rent at the original level from when the tenant stopped paying. Potentially with interest. Paying this amount now at least may make the court more sympathetic.

I am aware that I could still be liable for the remainder but trying to chip away bit by bit of their claim.  This apportioned month will reduce their claim by £766, small in the overall picture but every bit helps.

They have also failed to declare to the court £1700 for 8 weeks rent which was paid to an alternative deposit company which was refunded to the LL. So I will request this amount to be deducted of any claim also.

My relationship broke down with the tenant and I had no contact with them during the tenancy after I had signed.

I am intending to make them an offer this week based on the AST rent I agreed to, hopefully they will accept.

SanMiguel80

saajan_12 said:

I can't see the S13 invalidating the entire tenancy or guarantee. At most, the S13 would just be invalid and ignored, with the obligations under the tenancy agreement remaining in force as if there was no S13. Arguably that would include the RPI based increase which was in the agreement you saw ahead of signing the deed. That's assuming the rent increase clause was specific, not a "LL may increase, no more than RPI, if they feel like it". 

Re the partial months rent -
Per Section 40 of the Deregulation Act 2015, if the tenancy is terminated mid month as a result of a S21 notice and if the tenant paid the full month's rent upfront, then the LL would have to pay back the pro rata rent for the days the tenant wasn't there. 

In this case, the tenant hasnt' paid upfront, but I'd expect you could argue the LL's damages don't include the rest of the month, as if all parties had acted correctly, the most they'd have received is the rent upto the date the tenant vacated. Also to confirm, it was a S21 not a S8 notice given the rent arrears?

Yes that is my view also about the S13 and the TA. It remains to be seen if they can then back date an RPI increase. The rent review clauise was specific regarding the RPI increase, they quoted this as the reason for not needing to notify me or obtain my consent for the rent increase but failed to mention that is was a S.13 'Market Value' 30% increase.

"It is agreed that the rent as defined in this Agreement wi l be reviewed on the anniversary of this Tenancy and upon each subsequent anniversary in line with the change in the Retail Prices Index (RPI) for the previous 12 months and the rent varied accordingly either by way of an upward or downward adjustment."

It was a S.21 no fault eviction I have been informed, which I don't have a copy of as the tenant and the LA have refused to give me a copy!

silvercar

SanMiguel80 said:

silvercar said:

If the court agreed with you on the apportioned rent for the last month, it could still find against you for the remainder.

Even if the court finds that the higher rent shouldn't be your problem (though I would expect that the tenant has a duty to notify their own guarantor), the fact that the tenant stopped paying any rent once the S21 was issued is going to be a bone of contention.

At the very least I would expect that you would be on the hook for the missing rent at the original level from when the tenant stopped paying. Potentially with interest. Paying this amount now at least may make the court more sympathetic.

I am aware that I could still be liable for the remainder but trying to chip away bit by bit of their claim.  This apportioned month will reduce their claim by £766, small in the overall picture but every bit helps.

They have also failed to declare to the court £1700 for 8 weeks rent which was paid to an alternative deposit company which was refunded to the LL. So I will request this amount to be deducted of any claim also.

My relationship broke down with the tenant and I had no contact with them during the tenancy after I had signed.

I am intending to make them an offer this week based on the AST rent I agreed to, hopefully they will accept.

The deposit, which may be equivalent to 8 weeks rent,  isn’t actually for 8 weeks rent, it can be used against damage to the property.  Also, since 2019, the maximum deposit is 5 weeks rent.