Evicting a tenant

[soprano]

Seany88 said:

so i will register the deposit and serve a section 48 notice and then see.

Good idea.

Seany88 said:

Seeing as ground 17 may not provide the desired outcome i may attempt to restore the relationship and then kick em out as soon as i can after arming myself with plenty of evidence etc.

Also a good idea. Not for him obviously.

Seany88 said:

One thing that has come to mind is in the AST it states that rent is payable in advance on the 28th of each month but at the time i agreed that he could pay on the 23rd ie monthly from when he moved in...so what should i do? When i serve the s.48 notice can i just calculate til the 28th or 1st of the month on a pro-rata basis and count it as arrears? What's the right way to calculate it - 30 day month?

I think you misunderstand this part slightly. A section 48 notice is simply notice telling him where rent is payable to. It does not concern arrears at all. Usually this is done at the start of the tenancy, or included in the agreement itself.

Regarding calculation of the arrears, may I ask why the date is expressed to be 28th if he moved in on 23rd and agreed to pay on 23rd?! I think you are stuck with the date. This is why you need to be so careful when serving a section 8 notice. Rent arrears need to be calculated accurately. If the figure is wrong, even by a few pounds it can render the notice defective and your claim may be dismissed. Having him pay on a different date to the contract complicates matters more than they needed to be but too late now.

What I would do is calculate a daily rate (EXACTLY) so multiply monthly rent x 12 and then divide by 365 to get a daily rate. Multiply that figure by number of days between 23 - 28 (I would say 23/24/25/26/27 so 5 days) That covers your spare few days.

Then calculate it monthly from 28th to 27th following month at the rate pcm. These figures need to be exact. No guessing or esimating or using 30 day months.

Seany88 said:

One point, if we were to put it back on the market for sale in the courts would they be allowed to stay until an actual sale went through?

cheers again

If you sell the house whilst he is in the property you are in breach of contract and can be sued. Don't even think about it.

[soprano]

Wings said:

I believe you would do well to take the papers to a friendly solicitor

I could not agree more!

[superlightr]

there are so many ways to screw up on a tenancy, I think you have hit almost all of them (sadly).
Solicitor only way to go.

[Seany88]

I cannot find any mention of section 48 on my tenancy agreement, I only have this extract, is this sufficient? Did you mention section 48 due to the difference in address for service of notices?:


Date: ………………………………….


Landlord [enter name] ………………………………….

whose address for service of Notices in England and Wales is at

…………………………………………………………………………………………



Tenant: [enter name] ……………………………….

Term: ………[months/years] certain commencing on …………………..…………………

and ending on ….………………………………and any period of holding over or extension or

continuance by statute or common law.


Rent: £…………per calendar month


Premises ……………………………………………………………………………………………

The inventory of furniture, furnishings, fixtures and other items at the Premises is attached to this agreement


Deposit: £………………

[Seany88]

Regarding the deposit i have this in the AST:


5.1.1 On the signing of this Agreement, the Tenant shall pay to the Landlord the Deposit as security for the Landlord in respect of:
(a) any rent or other payments due from the Tenant which remain unpaid;
(b) any damage to the Premises or the items listed in the Inventory for which the Tenant may be liable;
(c) any unpaid accounts for council tax, gas, electricity, fuel oil, or water consumed by the Tenant in the Premises, and any unpaid telephone charges;
(d) any other breach by the Tenant of the Tenant's agreements and obligations under this agreement;
(e) any sum repayable by the Landlord to the Local Authority where housing benefits have been paid directly to the Landlord;
(f) any costs, expenses, charges, or other monies payable by the Tenant to the Landlord under this agreement; and
(g) any reasonable costs incurred by the Landlord due to any cheque of the Tenant which does not clear, or in respect of any reasonable costs incurred by the Landlord by reason of any letter being sent to the Tenant due to rent arrears, or any other breach of the Tenant's obligations under this agreement.

Does this change what I should count the £1400 as?

[Seany88]

Also, which TDS do people use? I've read a bit about each, but am thinking the DPS (as its free) and seems quite straight forward?

[superlightr]

OP- go to a solicitor, you have almost hit every head of screwing it up already, dont make it worse for yourelf.

[superlightr]

ps - did i mention that you need to see a solicitor with all the paperwork? all the dates of when they paid and how much. You clearly dont realise how much dodo dudo you are in. You are already upto your eyebrows.

Edited by superlightr on Friday 7th August 10:31

[john_p]

superlightr said:

OP- go to a solicitor, you have almost hit every head of screwing it up already, dont make it worse for yourelf.

sometimes you can get away with DIY law, relying on what you find on the Internet and the good advice of others. Tenant/landlord stuff is not one of those times. This has the potential to come back and severely bite you.

Do things legally then have his kidneys stolen to repay the cost.

Edited by john_p on Friday 7th August 10:58

[Seany88]

Don't worry I am! Have contacted them and written a timeline of what's happened and when etc and they're going to get back to me. I'm just trying to do what I can now while they work out everything because its my birthday this weekend and I'm leaving to do a bit of backpacking next week so don't want to leave my dad to do it all!

[dreamz]

when a eviction notice expires - you've given them the correct amount of notice

could you not just change the locks?

[Wings]

dreamz said:

when a eviction notice expires - you've given them the correct amount of notice

could you not just change the locks?

No, not if a tenant refuses to move out, then if following a court order for possession has been obtained by the landlord, then the Landlord needs to apply to the court bailiff to evict the tenant.

A section 8 Notice is merely informing the tenant that if after 14 days (in OP’s case) the rental arrears are not cleared, then the Landlord will issue court proceedings for possession, rental arrears and legal costs.

Court proceedings under a Notice 8 can only commence if the tenant remains/is 2 months in rental arrears, so if between serving a section 8 Notice and the 14 days, the tenant clears one month of the rental arrears, then the Landlord can not take court repossession proceedings.

[Wings]

Seany88 said:

Don't worry I am! Have contacted them and written a timeline of what's happened and when etc and they're going to get back to me. I'm just trying to do what I can now while they work out everything because its my birthday this weekend and I'm leaving to do a bit of backpacking next week so don't want to leave my dad to do it all!

I believe what you need to do, is to work out if the tenant pays the rent up to date, do you still want to evict the tenant.

For as I have already posted, if after serving the section 8 Notice, your tenant then pays the rental arrears, the same that leaves him/the tenant either just one month rent in arrears, or even up to date with the rent, then you can not use the section 8 route for gaining repossession.

[soprano]

Wings said:

dreamz said:

when a eviction notice expires - you've given them the correct amount of notice

could you not just change the locks?

No, not if a tenant refuses to move out, then if following a court order for possession has been obtained by the landlord, then the Landlord needs to apply to the court bailiff to evict the tenant.

A section 8 Notice is merely informing the tenant that if after 14 days (in OP’s case) the rental arrears are not cleared, then the Landlord will issue court proceedings for possession, rental arrears and legal costs.

Court proceedings under a Notice 8 can only commence if the tenant remains/is 2 months in rental arrears, so if between serving a section 8 Notice and the 14 days, the tenant clears one month of the rental arrears, then the Landlord can not take court repossession proceedings.

Wings is correct that the landlord cannot retake possession under these proceedings without an order of the court, and if the tennant fails to leave a warrant of execution from the court bailiff.

Not quite correct regarding taking possession proceedings under a section 8 notice if arrears are partially cleared, or fully cleared.

You can still issue proceedings under ground 8, even if the arrears are cleared, as the appropriate dates for the purposes of ground 8 are the date of service of s8 notice and the date of the hearing. So if for example you served a s8 notice, arrears were part or fully cleared and then one month later no rent was paid, you can still go ahead and issue.

Grounds 10 and 11 can still be relied upon, that is some arrears at date of issue of proceedings as well as service of s 8 notice (ground 10 - though obviously dont issue under this ground if rent arrears are zero as the ground is not made out) and persistent delay in payment (ground 11)

For the last especially, clearance of arrears is only one consideration. Need to be careful not to miz a section 8 notice with the considerations under ground 8, these are different.

[Seany88]

Update on this:

We instructed a solicitor and followed the procedure, got a court date and was given an eviction order and awarded costs for loss of rent etc of £4600. Went to take back the flat and he'd changed the locks on us! Was pretty confident he wasn't in, and he'd left a window slightly open so took it off the hinges and got in that way and secured the place.

Following that the concierge rang us a few days later with a poor kid crying his eyes out as the week before he'd handed a £1500 cash deposit to the scumbag who pretended to be the landlord of the flat! Same thing happened a few days later...

While all this was going on, the serious crime dept had been in contact with us as this guy was a serial fraudster and owed thousands to banks and many other people...he even used altered copies of my bank statements to secure loans etc! Even though I have no connection with that address! Something i'm still concerned about really...

Anyway he jumped bail while they were trying to build a sufficiently strong case against him but couple of weeks later they caught him and AFAIK now he's in jail.

So....what are our chances of getting our money back? And how would we do it? I assume the banks etc have first dibs on whatever assets he has so is it worth even trying?

[Wings]

As a landlord of some 15 years, I have a number of similar ex tenants who have all left with rental arrears, some leaving of either their own accord, or following me instituting legal proceedings.

The best person to decide if it is worth while pursuing the debt/rental arrears, is the OP, the landlord, for we/they are the only ones who have had first hand knowledge of the debtor.

To chase a debtor for a debt, I believe the same must meet several of the following criteria, stable employment, stable residence, stable lifestyle and secure finances to settle the debt. Also the OP/person chasing the debt having knowledge of the debtor’s residential, employer’s and banker’s address etc. etc.

I have only ever chased one rental debt through the Courts, and it was following my experiences from the same, that I considered it was a case of “throwing good money after bad”, since the debtor/ex tenant failed to fall under the above criteria, with any legal action, the debtor would live by their dishonest wits, and simply “move on”.

In the future, if I did have a debt against a debtor I thought was worthwhile in pursuing, then I would not instruct a solicitor, but someone like PH poster Jamesuk28.

[skwdenyer]

Wings said:

As a landlord of some 15 years, I have a number of similar ex tenants who have all left with rental arrears, some leaving of either their own accord, or following me instituting legal proceedings.

The best person to decide if it is worth while pursuing the debt/rental arrears, is the OP, the landlord, for we/they are the only ones who have had first hand knowledge of the debtor.

To chase a debtor for a debt, I believe the same must meet several of the following criteria, stable employment, stable residence, stable lifestyle and secure finances to settle the debt. Also the OP/person chasing the debt having knowledge of the debtor’s residential, employer’s and banker’s address etc. etc.

I have only ever chased one rental debt through the Courts, and it was following my experiences from the same, that I considered it was a case of “throwing good money after bad”, since the debtor/ex tenant failed to fall under the above criteria, with any legal action, the debtor would live by their dishonest wits, and simply “move on”.

In the future, if I did have a debt against a debtor I thought was worthwhile in pursuing, then I would not instruct a solicitor, but someone like PH poster Jamesuk28.

I would also add that, since the debtor owes you money, you now have an "insurable interest" and, as such, you can take out a life insurance policy on the debtor in your own name; it may take a while, but eventually you'll get a pay out Somebody I know did precisely this in a similar case and, yes, albeit many years later, the debt + premiums + interest + a little extra was paid out.

[Seany88]

skwdenyer said:

Wings said:

As a landlord of some 15 years, I have a number of similar ex tenants who have all left with rental arrears, some leaving of either their own accord, or following me instituting legal proceedings.

The best person to decide if it is worth while pursuing the debt/rental arrears, is the OP, the landlord, for we/they are the only ones who have had first hand knowledge of the debtor.

To chase a debtor for a debt, I believe the same must meet several of the following criteria, stable employment, stable residence, stable lifestyle and secure finances to settle the debt. Also the OP/person chasing the debt having knowledge of the debtor’s residential, employer’s and banker’s address etc. etc.

I have only ever chased one rental debt through the Courts, and it was following my experiences from the same, that I considered it was a case of “throwing good money after bad”, since the debtor/ex tenant failed to fall under the above criteria, with any legal action, the debtor would live by their dishonest wits, and simply “move on”.

In the future, if I did have a debt against a debtor I thought was worthwhile in pursuing, then I would not instruct a solicitor, but someone like PH poster Jamesuk28.

I would also add that, since the debtor owes you money, you now have an "insurable interest" and, as such, you can take out a life insurance policy on the debtor in your own name; it may take a while, but eventually you'll get a pay out Somebody I know did precisely this in a similar case and, yes, albeit many years later, the debt + premiums + interest + a little extra was paid out.

Interesting...I assume the payout comes when the debtor passes away? Bit of a gamble though...the person in question is only around 30 odd, although given the way he lives life he might even up the chances! Time to ask the solicitor!