ASK SHARON

Form 21(4)

The form for section 21(4) (a) for a periodic rent does not have a space for 'acknowledgement by tenant'. Is this not important since it is on the s21 for an AST.

I think the reason it is included in the s21 is that this can be issued at the start of a tenancy and could be acted on as soon as the tenancy expires and, if going to court for a possession order, the court would need to know that the tenant acknowledged when it was served that he had received it. I think 21(4)a would not apply until the tenancy has expired and converted to a statutory periodic tenancy, hence an acknowledgement would not be deemed necessary. I think I would always advise that an acknowledgement be signed, so draw up your own for signature, keeping a copy with the notice, to prove what you have done.

Changed locks

We have tenants who are two months behind on their rent and the tenancy does not expire for another month. We have experienced several problems with them since the tenancy began: mainly unreasonable demands and the like, but have dealt with things.

During the course of the last three weeks we have noted that on four separate occasions the front door to the property has been left wide open onto the street, electric lights have been left on but no one has been home. In addition we have discovered that the tenants have trashed the flat and in fact have moved out leaving belongings and some pets in the flat.

On the fourth occasion we decided to secure the building by changing the lock on the front door and put up a notice advising the tenants not to attempt to enter because of the locks being changed but instead to contact us.

As you can imagine the tenants are not pleased that we have been forced to take this action and have gained entry to the flat via a roof and climbing through a window. The tenants have also attempted to hack away at the wood on the front door in order to expose the lock. This has caused total damage to the door which will now need to be replaced.

We have allowed access to the flat in order that the tenants may finish clearing the possessions out and clean it to an acceptable standard but they have since changed the lock again and have stated that they will not allow access.

Is this legal? Can a tenant reclaim possession of a property which because they were living elsewhere and the property was left unsecured had its locks changed by the landlord? Do I now have a right to gain entry into the property by whichever means in order to secure the property fully against further criminal damage by the tenant?

Obviously, you had concerns about the security of the property and securing it to safeguard your goods and theirs was acceptable. However, to cover yourself, the notice you left at the house should have stated “this property has been secured to safeguard it, not to deprive you, the tenant, of the tenancy. Please contact us for access”. Whilst the tenants may not be pleased, you are fortunate that they have only tried to gain access, rather than go to the local authority about what could clearly be seen as an illegal eviction and could have created a very serious situation for yourselves. Yes, I know you felt you had justification, but that is rarely acceptable in law.

The only way to legally gain access is to serve a legal notice and, as the tenants are 2 months behind with the rent, serve a section 8, ground 8 notice, which is two weeks, then go immediately to court, once the notice has expired.

I can find no mention of ‘beneficial interest’ in my housing law guide, but this may be a term used in family law which I am unaware of. I cannot see that he has an interest, but I think I would see a solicitor. It is a great shame when family disagreements occur as it leads to unhappiness all round. Is there no possibility of mediation, to try and come to an amicable resolution?

You ask whether you could ‘just move him out’ – where do you visualise him going? As a single man, there may be little help available to him from the local authority.

I have asked that the sign the contract confirming his last day, but he refuses to sign and is now staying in the property without a contract.

He has paid me rent less the deposit amount which he paid when moving in, saying he does not trust me to give back the deposit after he leaves.

What notice can I issue to them so that they are aware that they must vacate the property by the agreed date?

As the original tenancy expired without a new contract being signed, it converted to a statutory periodic tenancy. You are still required to give him two months notice. Without any other ground, this is the only way you can be certain that he will leave, eventually. At the expiry of the notice, you would have to get a court order, should he still remain in residence.

I am a little concerned that the deposit was held by you and that the tenant felt he could deduct it from the rent you were owed. If it was protected by one of the tenancy deposit protection schemes, the Dispute Resolution Service should have been the ones who handled the situation. If not protected, be thankful he is unaware of the possible penalties to you.

Completing section 21 notice

I let my property on a 12 month assured shorthold tenancy agreement commencing in September 2004 at a rent of £825.00 per calendar month. Rent was to be paid on the ninth of every month. A section 21(I)(b) notice was also signed at the same time.

I have not renewed the agreement since although the tenant stayed on. However in April this year he stopped paying rent.

Reading your web site, which is excellent, it seems that to seek possession I should issue a section 8 notice citing ground 8. Do I also cite grounds 10 and 11? And what date should I enter for the date before which proceedings should not begin?

Are there any other forms I need to complete?

How sad when someone has been a tenant so long that they have to be evicted. I trust you have sent warning letters etc. advising of the rent situation? If so, then the section 8 notice is your only option, though you could still try and use the section 21 notice, though I usually advise that when it is signed at the beginning, it does not seem fair to use it when some time has elapsed, and a court may also feel that served at the beginning, it was to protect you should the tenancy not work out well, rather than that four years down the line, it would still stand.
However, a section 8 notice for rent arrears should always use ground 8, but also include grounds 10 and 11. You need to quote the exact wording as shown in the act, quoted here:

Ground 8 - Both at the date of the service of the notice under section 8 of this Act relating to the proceedings for possession and at the date of the hearing –
if rent is payable weekly or fortnightly, at least eight weeks’ rent is unpaid;
if rent is payable monthly, at least two months’ rent is unpaid;
if rent is payable quarterly, at least one quarter’s rent is more than three months in arrears; and
if rent is payable yearly, at least three months’ rent is more than three months in arrears;
and for the purpose of this ground “rent” means rent lawfully due from the tenant.

(NB: this ground was amended in the 1996 Housing Act. In the 1988 Act, time periods for rent arrears in a) were 13 weeks rent and in b) were three months)

Ground 10 – Some rent lawfully due from the tenant –
is unpaid on the date on which the proceedings for possession are
begun;
and
except where subsection (1) (b) of section 8 of this Act applies, was
in arrears at the date of the service of the notice under that section relating to those proceedings.

Ground 11 – Whether or not any rent is in arrears on the date on which proceedings for possession are begun, the tenant has persistently delayed paying rent which has become lawfully due.

The notice, which is 14 days, should end on the last day of a tenancy period. So, if your tenancy agreement was dated 13 of the month, the notice would end on 12 of the next. So, tenancy began 13 September 2004. The notice should be given on 29 July to end 12 August. You would go to court on 13 August. I think you are asked when court proceedings would commence.

If the tenant remains after the notice expires, you would go to court for possession. The court will give you three copies of the appropriate form and three particulars of claim. You can also apply for possession on-line, which is supposed to be quicker and cheaper. Good luck.

I now wish to give the tenant notice (in excess of two months).

I have obtained a form under the Housing act 1988 section 21 (1) (b) for seeking repossession of the property. It is a notice requiring possession for a fixed term tenancy (assured shorthold tenancy), but I have noticed that on the back of this form there is a note which states that ‘The lengths of the notice must be at least two months and the notice may be given before or on the day on which are fixed term comes to an end’

As the tenancy has gone on longer than the fixed term of six months, is this the correct form to use?

As the tenancy is now a statutory periodic tenancy, the form you require is section 21 (4)(a).

Notice required

I own a house that I rented out and have now decided to put the house up for sale. Has the tenant got the right to refuse to leave by the date I have asked him to leave by? I have given him two month’s notice.

The tenant has been in the property over two years and has two very young children. I renew the tenancy agreement every six months and it is now due for renewal again.

Please can you advise me in my rights and there rights in this matter.

Provided you give the correct legal notice, which is two months which ends either on the date the tenancy ends or after, the tenant has no right to stay. However, if she does remain, you will have to go to court to evict on an Accelerated Possession Procedure. That can take several weeks, and the tenant has the right to remain until a court orders her out. Really, it would be better to do it by agreement with the tenant, rather than having to go to court as it costs £150. Discuss it pleasantly with the tenant, having issued the notice. State you are happy to give a good reference and see what response you get. If you are not satisfied that he will move, and you need to be very confident that he means what he says, you must protect yourself by going to court. Do not let the fact there are young children affect you – they are not your responsibility.

Buying house with sitting tenant

I am about to buy a house from an old family friend. The house, which formerly consisted of nine bedsits, is now vacant apart from one sitting tenant who is reluctant to leave after more than 16 years of occupation. After trying to evict her, the current owner has offered her a cash lump sum, but she is still not willing to leave. I am reluctant to buy the house without vacant possession as I have plans to refurbish the property before moving in with my family. The current owner thinks that I may have more luck dislodging the tenant, given my plans to develop the property, and he has suggested that I explore my options. Is there a legal avenue that I can pursue, or does the tenant effectively have unimpeachable rights here?

I am not a great fan of buying with sitting tenants, unless you are doing this to continue the business of letting the property. There is also a difficulty in answering as you have not given very exact details. You say she has been in the property ‘over 16 years’ – if you mean she moved in 1991/92, she is either an assured shorthold tenant, which lapsed into a statutory periodic tenancy at the expiry of the original term, or an Assured tenant, which again has lapsed into a statutory periodic. As you say your friend has tried to evict her, and presumably failed, I can only assume she is an assured tenant, and therefore has very good security.

The only ground I could think of that you may be able to use, if she owes no rent, is ground 9 ‘suitable alternative accommodation is available for the tenant or will be available for him when the order for possession takes effect’. (This is the wording in the Act, so could be used in the Court paperwork). However, it is a discretionary ground, so a court would have to decide whether it was reasonable for you to want possession and you or your friend would have to be in a position to offer alternative accommodation, which you may not be. It would have to be very similar accommodation with the same facilities, same distance from facilities and the like.

You must obviously not attempt to harass her or force her out. You could have a civil conversation and ask whether she has any sympathy with what you intend to do, in which case she may move. But I would not normally expect your suggestion would have any weight with someone who does not wish to leave what she sees as her long term home.

I think I would not sign anything until your friend has taken steps to secure vacant possession, if that is possible, but it may not be.

I have served her notice to leave. The agreement was for six months but since she is in breach of the agreement, do I have the right to evict? She is claiming she is not going to leave the house. What can I do?

Is she a tenant or a lodger sharing the house in which you are resident? If a lodger, you can give her ‘reasonable notice’ which would be one week, I would say, and would serve a notice to quit on her. If she remains, you would go to court and get an order.

However, if she is a tenant, you would have to serve her a notice seeking possession using ground 12, ‘Any obligation of the tenancy (other than one related to the payment of rent) has been broken or not performed’. This is a two week notice. However, the difficulty is that it is a discretionary ground and a court would have to decide whether it was reasonable for you to want possession.

Courts don’t really like to evict on a discretionary ground so it could be an expensive and futile exercise. If you want to go that route, you must get supporting evidence from the other tenants, make sure you have copies of the warning letters you have sent about this appalling behaviour.

You could throw in ground 13, ‘The condition of the dwelling-house or any of the common parts has deteriorated owing to acts of waste by, or the neglect or default of, the tenant or any other person..’, and also ground 14, ‘“The tenant or any other person residing in the dwelling-house has been guilty of conduct which is a nuisance or annoyance to adjoining occupiers, or has been convicted of using the dwelling-house or allowing the dwelling-house to be used for immoral or illegal purposes has caused or is likely to cause a nuisance or annoyance to adjoining occupiers’.

I really think, if you can keep the other tenants pacified, the best way to handle this is to serve a s.21 to end when the tenancy ends. If she insists on remaining, you would still have to go to court, but there should then be no argument, she could not turn up in tears and say she didn’t know she was being a nuisance, as you need give no reason to the court why you wish to evict.

On the anniversary of this he claimed no knowledge of the notice and refused to leave. The agent then informed me the firm could do no more and recommended I seek legal advice. Having instructed a solicitor, she told me to write to the tenant with 48 hours notice that I would be inspecting the property. I did this and found the property was empty of furniture with only a few personnel belongings left. The keys have still not been surrendered and as far as I am aware I have no legal right to change the locks and re-let.

I have decided to take action myself. I have the forms for possession and accelerated possession and would like to know the time difference between the two. I am also aware that the accelerated procedure does not include reclaim of costs and overdue rent. If I take this path can I claim the rent arrears in the small claims court?

I am sorry to sound like I have a downer on agents, as I work with some very good ones. The very least this agent should have done is advise you, in January, that the next step after the expiry of the notice, is that you go to court for possession. A date for accelerated possession should come through within about two to three weeks, depending on how much the court has to deal with. I am sorry that it has taken until now for this question to come through, and again, I wonder how much help your solicitor has been. Having been to the property (and you should not have entered without invitation) and finding it abandoned, I would have expected the solicitor to advise either a) the tenant has vacated to save a court case as costs would be awarded against him, or b) that you pursue the route for abandoned properties, which is a 28 day notice to quit. Did the agents not get a next-of-kin? Have they attempted to trace him at all? Which brings me to your final point – yes, you can pursue him through the small claims court – but can you trace him? Have you an address? Without an address, there is little the small claims court can do. Sorry.

What process do I need to follow legally to gain entry to the property?

You would need to get a court order to gain access, but to be honest I would not bother until I had got this tenant out. You entered into an agreement with her, that she would rent it from you and behave in a tenant-like manner. She has broken that agreement. You are in business, or it is at least an investment and cannot afford to allow this to continue. If she is like this now, what will she be like in a couple of years? As soon as she is eight weeks in arrears, serve her a s.8, ground 8 notice, which gives her 2 weeks notice. If she realises that you mean business, she may become more amenable and sort the rent out – you don’t need to act on the notice, if you don’t want to.
I think I would be very concerned that the solicitor who did the conveyancing did not insist on receiving the keys. It may be worthwhile discussing with him, in case you need assistance in taking her to court. As soon as you get possession, change the locks – but not until she vacates, as otherwise, it would be seen as illegal eviction and harassment.

Behind with rent

I have a house split into four flats. In November 2007 a tenant moved into number 3. The rent of £280 was paid for one month but since has been paid in bits and bobs by either him in cash or via his friend’s Paypal account. He is now two months behind and I want him out.

He has no tenancy agreement as he has avoided me each time I have been round. He did not pay a deposit. Does he have any rights or can I just evict him?

I am afraid he still has the right to legal notice. You need a s.8, ground 8 notice and should use grounds 8, 10 and 11 – 10 and 11 are discretionary grounds but cover you in case he pays a sum that takes you below 8 weeks arrears when it gets to court.

If I had a tenant that behaved like this, he would not last beyond the first six months. I also would not give keys or access to the property without him receiving a tenant agreement. If there is no tenancy agreement, you cannot use the accelerated possession procedure, which makes things quite difficult when eviction is required.

I am afraid this is another question that is difficult to answer. You refer to him as a lodger – is he a lodger, having lodged with your father, or is he a tenant of a property owned by your father?
If he was a lodger, he has had the necessary notice and you should be able to go for a court order to remove him, though I would be inclined to write to him and offer him a little longer, as he may have been unable to find anywhere.

If he was a tenant, his tenancy began prior to the 1988 Housing Act, and he is therefore a protected tenant. He has very good security and as in an earlier answer, it will be difficult to evict unless there is suitable alternative accommodation. I think you need to see a solicitor who specialises in housing law.

I understand that I am unable to evict her (not that I would want to) and am considering selling the property with her as a tenant. Her current rent is £300 per month which is currently about £100 under the market price.

My problem is that with vacant possession the flat is worth about £110,000 whilst with the tenant only about £70,000. Is this right? Also would it be possible to advertise the flat suggesting that an investor could apply to put the rent up and this in itself would allow for the flat to be advertised at a higher price? Any suggestions would be appreciated.

Yes, I am afraid it is correct – vacant possession allows a buyer to do what they like with it, in certain circumstances to demolish and re-build expensive new developments, whilst a tenant more or less dictates what can be done with the building. You say she has been an excellent tenant.

Have you discuss the situation with her? Would she move if you compensated her? A difference of £40,000 should put you in a position where you can be generous, if she has any inclination at all to move. However, no pressure must be put on her, it is only a suggestion. If you sell with her in possession, any investor worth his salt and buying a property with a sitting tenant, would know that an application can be put through every two years to the Rent Assessment Committee to have the rent increased. It would probably not get to market levels, as they limit the amount of increase that can be applied for. Has she been happy with rent increases over the past years? Has the rent increased recently? If it is due for a rise now, that may make it seem a more attractive proposition.

He then took me to court saying that I verbally gave him my property, which I obviously did not (as was confirmed by the court). The case left me over £10,000 in debt.

He is threatening and aggressive and if I go to my house to collect my mail will argue with my children and deny them access to the house. If they go to pick up my letters he will not give them my mail. Please help.

I am really sorry, but I cannot help on this – you need a good solicitor. Whilst you lived in the property, he had minimal security, he was your lodger and could have evicted him at any time. You moved out, so he took on the status of a tenant, but as he was not given a tenancy agreement, presuming you moved out before February 1997, he automatically became an assured tenant. This gives him a lot of security. You don’t mention – is he paying rent? A solicitor may be able to make a case that if no rent is being paid, he has paid rent in kind by the work he has done on your property and may go for possession on that basis. Check the telephone directory for solicitors experienced in housing work and very best of luck! This is a very poor return for your kindness to him.

Accelerated possession

We have a tenant who only paid the first month’s rent. She is now two months in arrears and has been served with a section 8 notice. She has also changed the locks, and our agent didn't check references properly and we find that her ‘ex-landlady’ is her sister who seems to be living with her.

We would like to get her out quickly and intend to go to court but we are not sure about the next step. Could you tell us about the difference between a N5 possession order and a N5B accelerated possession?

The N5 possession order is the standard notice, which is what you need for a section 8 (rent arrears) notice. N5B Accelerated possession notice is only used for certain grounds, like a section 21, 2 month notice, so does not apply here. Complete the N5, along with the other document you should have been given, for Particulars of Claim and take to court. If you rent again, make sure your agent does a proper job on the references and asks for at least 2 past landlords – the last (even when not a relative) could give a good reference to a bad tenant to get rid of them. The one before last has nothing to gain by giving a good reference to a bad tenant.

House needed by landlord

Landlord moves abroad to work, he lets his house for 12 months. His employment ceases and now wants to move back into his home - this is the only property he owns. The tenants have eight months left on there tenancy agreement. Can the landlord issue notice to quit and gain possession before the end of the tenancy?

Not without a ground, he can’t. There is ground 1, that the property used to be your main home and you require it back to live in, but this cannot be used before the fixed term ends and a notice would have to be given to the tenant before the tenancy started that you may seek to re-possess on this ground. You could try and negotiate with the tenants, and see if they are sympathetic to you, but I think I would not be happy if I was your tenant. You should not harass them at all, nor of course, illegally evict, but they may be prepared to move if you provide some small compensation, for example, moving expenses. By the way, it is a Notice Seeking Possession or a Notice of Possession Proceedings – a Notice to Quit is where there is an abandoned property.

This was initially an unsecured facility but sometime last year they took me to court to turn the loan into a secured facility and to get a second charge against the property I own (in which my mother lives). They succeeded in this and in getting a CCJ against me.

Now they say they want to proceed with a forced sale on the property and will be applying to the court for this and I will be advised of this via themselves or more likely a solicitor within the next 30 days.

I have not told my mother quite yet as I want to try to find out if she has any rights in this situation, or is there any way I can stop this happening.

I have no funds to make any form of legal defence. The mortgage is £81,000 approx. I am not sure on the value of the house but I doubt it would be worth more than £95,000 especially in a forced sale.

As far as I am aware, your mother will be in the same position as any tenant of any landlord where a sale is forced – that is to say she has no rights. You must see a solicitor immediately, I presume you have asked the bank whether there is any possibility of your mother staying there and paying rent to them? It’s a long shot, but I don’t see what else you can do. Good luck.

The tenants originally moved in at the beginning of July, and signed up to a three month AST, expiring on 7 October 7. This was handled by a friend of mine acting as a letting agent on behalf of her father's property management service. The tenants indicated that they wanted to remain in the property and renew their AST to continue for another three months. My agent drew up a new AST and this was meant to be signed by both parties in October. Around the same time I decided to sell the property and gave the tenants indication (through my agent) that I intended to do this, but that they shouldn't worry that they would be homeless as I was negotiating with the father of my letting agent, who was willing to purchase the property, keep on the existing tenants and continue to have his daughter act as agent.

The purchaser made an offer on the property, which I accepted, and we began the usual processes of buying/selling a property. The information was cascaded to the tenants, who then refused to sign a new AST as they declared that this would be void once my agent's father bought the property. We did try to explain that the new owner would be obliged to honour any existing agreement, but they would still not sign any paperwork. They also began to be very uncooperative as tenants, became very hard to contact in terms of trying to arrange for my buyer's mortgage valuation to take place etc. However they DID pay rent for the month of October, and again for the month of November. Although I was still hoping that they would sign the AST this did not materialise, however as they continued to pay rent I didn't think there was anything sinister going on, and we would continue to act by the rules of the AST although no formal agreement was in place.

At the beginning of December the next month's rent was due and it did not come, neither myself nor my agent received any contact from the tenants to explain why this was - or for them to let us know they were having financial difficulties etc. To be honest the rent had rarely been received on time prior to this date so I didn't think too much of it for the first couple of weeks, however my agent was leaving messages for them, and put a note through the door reminding them that the rent was due and asking for payment. When it started drawing towards January (and I still hadn't had rent) my agent started pressing them further but will no success, it is now mid-January and I have not only had no rent from the tenants for December, but none for January either and I am completely clueless as to what their intentions are now as we have not been able to contact the tenants for several weeks.

The sale of my property cannot complete until the tenants either vacate the premises, or sign a new AST - however I feel that the latter option is unlikely as the behaviour of the tenants of late leads me to believe they intend to stay in the property and not pay rent for as long as they can. I am finding it very difficult to ascertain what my legal standpoint on this now is. I believe that although the original AST was for three months, the tenants are protected under the Housing Act for six months, meaning the period of cover would have expired on 7 January. During this time I believe I could have served a section 8 or 21 in order to remove the tenants from my property.
Now that the cover period is over I'm not sure what my rights are at all. I have read somewhere that if the cover period ends the landlord can serve notice for possession, but they need to give the tenants two month’s notice if they intend to do this (and don't have to give a reason). However I am in the situation where the tenants already owe me two month’s rent, and I cannot afford to have them stay another two months without paying. I need to get the property sold, or have other tenants in there who are willing to pay the rent, so the current tenants need to be out ASAP.

It appears that I have no right to enter the property without the tenants’ permission, there does not appear to be an official 'notice' I can give them as there is no AST and no cover in place, basically there is very little I can do to get them out which is not illegal. Last week I gave them a letter saying that if the rent was not in my bank by the end of the week I would assume that they intended to vacate and would expect them to be out ASAP so I could begin finding alternative tenants. They have completely ignored all attempts at contact and now I am extremely worried about how I will get them out, whether they've damaged the property etc. I'm really stuck to be honest!

I have a feeling you will say all I can do is give them the two month’s notice to get possession and then enforce it if necessary. However, this will then mean that I will have had no rent payment for four months, my buyer may well withdraw his offer on my flat because of the long wait, and the tenants may 'moonlight' just before the two months is up, so I can't recover my monies.

If a new tenancy agreement was not signed, the tenancy automatically converted to a statutory periodic tenancy. As you have a tenancy agreement, albeit for the first three months only, you should be able to issue two month’s notice, provided the tenancy has run six months either before or at the expiry of the notice. However, as they owe you more than eight weeks/two months, get a section 8 notice and complete it citing grounds 8, 10 and 11. This is only a two week notice and provided the notice ends at the end of the tenancy period (ie if the tenancy runs from the fifth of the month to the fourth of the next, your notice should end on the fourth). The day after it expires you should go to court for an order. The tenants are only protected from the accelerated possession procedure, not from eviction when other grounds apply.

The grounds must use the wording in the act as follows:
Ground 8 - Both at the date of the service of the notice under section 8 of this Act relating to the proceedings for possession and at the date of the hearing –
a) if rent is payable weekly or fortnightly, at least eight weeks’ rent is unpaid;
b) if rent is payable monthly, at least two months’ rent is unpaid;
c) if rent is payable quarterly, at least one quarter’s rent is more than three months in arrears; and
d) if rent is payable yearly, at least three months’ rent is more than three months in arrears;
and for the purpose of this ground “rent” means rent lawfully due from the tenant.

(NB: this ground was amended in the 1996 Housing Act. In the 1988 Act, time periods for rent arrears in a) were 13 weeks rent and in b) were three months)

Discretionary grounds on which court may order possession

Ground 10 – Some rent lawfully due from the tenant –
a) is unpaid on the date on which the proceedings for possession are
begun;and
b) except where subsection (1) (b) of section 8 of this Act applies, was
in arrears at the date of the service of the notice under that section relating to those proceedings.

Ground 11 – Whether or not any rent is in arrears on the date on which proceedings for possession are begun, the tenant has persistently delayed paying rent which has become lawfully due.

If ground 8 applies, so do the other two and just offer some protection in case the tenant decides to pay something to take the arrears below eight weeks.

We have been given conflicting advice on whether it is better to pursue possession through the court, issue an abandonment notice or simply assume the tenants have gone and re-take possession. What is your advice?

You should not just re-take possession, despite the strong indications that they have left. You could issue an abandonment notice, but this will mean that for 28 days you are still waiting to get the property. However, on the 29th day, if you have had no contact from the tenant, you should be safe to change the locks. The final option is let it go through the court. That will cost you in the region of £150, and you may still have to wait, depending on how busy the court is, for the order. Using a Notice to Quit is cheaper and probably will take no longer than the court process.

Did you get no next of kin when he moved in? Have you met none of his friends that could assist with this? I think he may feel it is a bit extreme to have him reported missing, but the police may be able to help trace him if he has a vehicle. I would not remove his goods just yet, particularly as he is unaware he is being asked to leave and, even if he guessed, would assume he had one month. See what the police say, but for future reference, ensure you get references and next of kin, who may be prepared to take responsibility for his goods.

When we give him his four week’s dismissal notice, will this also count as a Notice to Quit the 'tied' house, or will we have to put specific wording in the letter to cover the house, or will we have to issue a separate notice for the house.

Obviously we want to do things correctly, because we need the house vacant as soon as possible so that the new employee will be able to move in.

I would expect your tenant will realise he must leave the tied property, but may feel he deserves formal notice. This would be given under ground 16 (the tenancy was granted because the tenant was employed by the landlord, or a former landlord, but he or she is no longer employed by the landlord) which requires two month’s notice. He may be prepared to go in less than two months, particularly if you assist him with removal expenses, but if not, he will need legal notice.

Your sister is being very unfair on her siblings. I would suggest a family meeting where you discuss the sale and the notice which you as a family feel it is fair she should have – I would suggest two or three months, which should be sufficient time for the partner to evict the tenants from his own property. Your sister needs to accept she has to move out when required or has the property valued professionally and obtains a mortgage to pay the three of you off. Instruct an estate agent. If she remains obdurate, you will need to see a solicitor, which will reduce your inheritance, but I cannot see she will win this one as she was not a tenant.

I would be dubious about using this, though by all means, try. However, I think if I was the tenant I would be kicking up quite a stink, on the basis that whatever the reason you decided to seek possession very nearly four years ago, it may not still apply and the tenant could rightly say that he had insufficient time/notice to find alternative accommodation. I think you need to start the process again.

A Section 21 was included in the original tenancy agreement that was signed.

After two months of non payment of rent, we issued a Section 8 Notice listing the above grounds. The notice was issued by our letting agent.

We waited the required two weeks and then requested a court date based on the various grounds listed above and sent the required documents to the court.

We finally got a court date in December but the judge refused to conduct the hearing because our witness statements relating to the additional grounds (noise, nuisance etc) had not been written in the correct way, even though the tenants admitted to paying no rent for four months. The judge asked for the witness statements to be re-done and for a new date to be found for a hearing.

We now have a new court date in March, but the tenancy agreement will expire on the 3 February!

Are we able to start the accelerated procedure after the date of 3 February has passed, given that we have already begun the 'long' procedure?

The priority for us is to get the tenants out of the property. We know that with the accelerated procedure it isn't possible to request the money for the rental arrears and that is OK. What is not clear is whether, having started the Section 8 process we are still able to use the accelerated process, once the tenancy agreement expires. (Our other problem is that we are living abroad so coming back to attend court hearings is difficult and costly which is why the accelerated process is more practical).

If you are sure the section 21 was issued correctly when the tenancy agreement was issued, on 4 February apply to court for accelerated possession. Many landlords, and I advise it, often issue both types of notices, as if the tenant pays sufficient to take the arrears amount to less than 8 weeks, which means a section 8 could not proceed, they can continue on a section 21. Good luck!

He has never paid rent and has no tenancy agreement, and is now wrecking the house. I have also found out that six months ago he ordered £300 worth of heating oil in my name and has not paid the bill (and has been hiding the threatening letters sent to me at the house.

I have had my solicitor send him a letter telling him he has a month to leave.

My question is: what action can I take to remove him or stop him entering the house.

I believe the legislation in Ireland is the same as in England. I would therefore say he is an illegal occupier and would issue a 28 day Notice to Quit. After the expiry of the notice, you would go to court for a repossession order. This will usually be immediate. If your ‘friend’ remains, you would have to get a bailiff’s to enforce the judgement. You would then go to the house, with the bailiff, who would usually ask a policeman to accompany, and you would take a locksmith. If needs be, the locksmith would remove the locks, the bailiff would enter with the police and the illegal occupier would be encouraged to leave. At that point, the locksmith would install a new lock. I don’t know how good a friend he was, but if he realises you will take it as far as you can to remove him, is it possible he will go quietly? I hope so.

Tenant jailed

I have a tenant who has been put into prison for 13 years, I know the children’s belongings have been removed from the house and I have had one phone call from the next of kin to say to use the deposit monies for one month’s rent while they empty the property. There are now only a few days before the next payment is due and telephone messages, letters, serving 28 day notice are being ignored. I am in possession of a section 21 notice served on day the tenancy was signed. Where do I stand on removing the tenant’s items, as these items are quality furniture and the property has been looked after?

You have a section 21, so I would go straight to court with it and a copy of the tenancy agreement. This is the accelerated possession procedure. The court will order possession. BUT - if after this date the goods remain (and I would try and contact next of kin to advise what is happening), you still cannot remove goods. Only a bailiff can do that, so you will need to get a bailiff’s warrant/appointment. For future reference, make sure you state in the tenancy agreement how long you are prepared to store goods for.

Leaving with keys

I have a rental property which has just had a tenant in it. As he failed to pay the correct rent and also behaved badly during his tenancy, I served a Section 21 notice on him and also a Section 8 notice. Although the section 21 notice has a little way to run he has left the property but has not given back the keys. I would like to know how I get these back and when I can legally gain access to the property.

I am afraid that if he has not returned them, you must treat this as an abandonment and serve a 28 days Notice to Quit. If day 29 you have heard nothing from the tenant, you can change the locks as you are unlikely to get the keys back. Although you have served a s.21 and s.8 at the expiry of either of these notices you would need to go to court, which costs. The notice to quit does mean you can change the locks. Failure to go through the procedure means you could be accused of illegal eviction or harassment, if the tenant returns.

Acting for brother

I act as my brother’s attorney and look after his rental property for him: he is ill and is living in Australia. The house is in Cardiff and the sitting tenant has been there for about 15 years. The first four of these were as non-rent paying guest of by brother who was also living in the property.

There is no written agreement and the informal arrangement was that the tenant would pay the interest-only mortgage and council costs and insurance and could look after the house until my brother returned.

However, as he is now unlikely to come back he wishes to sell the house as soon as possible.

I have served a section 21 notice on the tenant requiring possession. Can you help with what sort of tenancy this would be and if the tenant would be a protected tenancy? What would be the best route to gaining possession?

My belief would be that the tenancy dated from 1996. I think you will struggle to get possession. A section 21 can really only be used where the paperwork exists to support what the situation is – ie dates, which generally mean a tenancy agreement. A clear rent account may help, showing when the costs started being met by the tenant.

Another difficulty is that it depends when in 1996 the tenancy started and what support there is to show this is a tenancy without a tenancy agreement. The 1996 Housing Act, which amended the 1988, allowed for an assured shorthold tenancy to be created, even without a tenancy agreement – prior to that, if a notice of assured shorthold was not issued, the tenancy was automatically an assured tenancy, which gave good rights of occupation and is not easy to end without a good reason (which you have not given me). The easiest way will be if the tenant voluntarily agrees to move, but he may be very comfortable after 15 years. You could try a s.21, but you cannot use the accelerated possession procedure without a tenancy agreement, so you do need your supporting documentation for court.

Making tenants ‘homeless’

I was hoping if you can inform me what actions need taking in order to give an eviction notice to tenants.

The tenancy agreement is up in two months and the people are wanting to go into a council house as soon as possible as they are unable to pay rent of the property. They have been told that they cannot get a council house unless they receive an eviction notice and are declared homeless. I am happy for them to leave my property but need advice on giving a notice.

Is it just a letter to the council or are there special documents that need filling?

Section 21 is the easiest, though this is a two month notice. You can handwrite it yourself, so long as you use something along these lines: (ie change dates and names, but rest should be as written)

Landlord’s address

Tenant’s Address
Date
Dear xxxx,

Your tenancy of the above mentioned property expires on 5 July 2005. I now find that I do not want the tenancy to continue and therefore ask that you accept this letter as Notice Seeking Possession.

As specified in the 1988 Housing Act (amended 1996), section 21, I hereby give you the two month’s notice as required by law, commencing 6 May to end 5 July 2005.

I will contact you two weeks before the end of the Notice to discuss the arrangements for the hand over of keys/property inspection. Should you remain in occupation after 5 July, I will ask the Court to order re-possession.

Please do not hesitate to contact me, if you wish to discuss this matter further.

You should contact Housing Advice Services/Housing Aid/Citizens Advice Bureau/a Law Centre or a Solicitor if you wish to discuss your rights as a tenant.

Yours sincerely,

J. Smith (Landlord)

Always use words in the Notice when writing the date, it means there can be no argument about dates when the notice begins and ends.

Notice periods

I own a house managed by an agent. The tenants moved in at the end of 2006. The agent set up a tenancy agreement expiring in June 2007. The contract did not allow for any notice to be given.

Subsequently the agent produced a second tenancy agreement running from June to December 2007, again with a stated term of: six months with a break option of one month’s written clear notice to be given by either tenant or landlord to vacate the property.

The rent is paid in cleared funds in advance of 10th of each month.

What is the earliest date I can get my house back? I have asked to give one months notice but have been told that might cause 'difficulties' and that I should serve notice to expire when the tenancy expires. But I have to be out of my own rented property by the end of November. Where do I stand? What difficulties are the agents referring to? Am I being paranoid?

The difficulties are that to end the tenancy using the straightforward method, the tenant has to have two full month’s notice which cannot end before the end of the tenancy. The same, of course, applies to you – your landlord needs to give you two months. You could try and negotiate with the tenant, but be very careful that nothing you say could be construed as illegal eviction or harassment. I am afraid I can think of no advice which would allow recovery of the property sooner than the end of the tenancy, unless the tenant wants to.

Access for viewing

I would be grateful if you could clarify whether, after a section 21 notice has been served so that the property might be sold, the outgoing tenant has the right to refuse access by an estate agent or landlord for viewing?

We use a tenancy agreement with a clause stating that viewings can be conducted within the final two months at reasonable times of the day and with advance warning, and our solicitor has advised that the wording of the clause is approved buy the Office of Fair Trading standards and is therefore enforceable. However I have read elsewhere that a tenant’s right to ‘quiet enjoyment’ overrides any such clause.

Quiet enjoyment is very important, but to be honest, I would not want anyone viewing the property if the tenant is still there – would they tidy, clean it? Would they tell the viewers lies about the property? I think that for the sake of a month, I’d keep prospective buyers away. Even if the tenant is in agreement to viewings, I think two months is a bit much, final month only is the norm.

Giving lodger notice

For the last four months I have had a lodger in my spare room, with myself as live-in landlady. She has been late with the rent every month.

About seven weeks ago I wrote her a letter saying that this situation was intolerable and that any further repeat would result in me giving her a week's notice.

At the beginning of October I went away and she said her mother would pay the rent (although the date of payment kept moving, but in fact no rent was paid.

On my return I found she had disappeared but most of her stuff was still in her room. Over the last week I have tried speaking to her but when I did make contact all I got was ‘I can't talk right now'.

I did receive a text from her saying ‘hello, my mum is not well and that is where I have been the past few days. This is a serious problem. My dad said he will give you the (deposit) cheque and the £490 (sum outstanding) later in the month because we needed the money’.

I have found my lodger has lied about a lot of things and takes stuff from within my part of the house, moving them into her room (nothing valuable but I have told her off numerous times for not asking me first!)). I happened to know where mother worked and called to see if she was off sick – she wasn’t (although it is possible, perhaps, that my lodger may have a step mother who she is choosing to call 'mum').

Anyway I left another answerphone message enquiring about her 'mother', when would she be returning, and the like, and reminded her that she had agreed to pay the outstanding sums during the month. When there was no reply I sent another text saying 'I hope your mum is ok? As per your last text I fully expect all payments to be in my bank or in 'my hand' by the agreed date. However due to your track record, I'm starting your week's notice from today (Friday just in case this money fails to materialise. This is non-negotiable and no excuses!

Can you advise me as to what my rights are if she doesn't pay by the agreed, or if she does pay but only within the week's notice period?

I may be a cynic, but I don’t think you will get the money and your only recourse then is to go to the small claims court. However, even if she pays some or all of the money, you cannot go on like this. I would accept any money with a smile, assure her you will provide her with a reference that she had left no debt (no more) but that the eviction stands. If she won’t go, go to court – she has no rights to stay if you have given her reasonable notice – one week is finre. For future reference, don’t give keys until you have received the deposit and the first week’s or month’s rent in advance – and if payment is made by cheque, not until the cheque has cleared.

No written agreement

My partner has been renting his house near Manchester for around four years but, for the last three years, following difficulties with the letting agents not arranging maintenance and the like, he has been dealing directly with the tenant rather than using an agency. However, as he knew the tenant, he has never made a formal tenancy agreement, only a verbal arrangement.

We are getting married this year and would like to buy a house in London. To do this we need to sell my partner’s house. We gave the tenant notice that we would be looking to sell at the end of this year. However, she has says there is 'no way' she will move out. She said she would like to buy the property but she is on benefit and cannot afford to and there is nowhere else that suits her.

My partner has decided to wait, hoping she will change her mind. However, she is not being very reasonable and I am concerned that we should be following some form of proper process and paper trail. Can you advise us?

You could try selling it as a tenanted property, though whether you would get the full price is difficult to say. The difficulty is that unless there is a good reason (ground) for evicting the tenant, you are limited in the steps you can take. Without a written tenancy agreement you cannot use the accelerated possession procedure, for example.

It might be worth contacting the letting agent to see is a tenancy agreement was issued by the firm at the outset of the tenancy and whether it has a copy in its archives. I think I would be inclined to issue a new tenancy agreement for six months, (she may accept a new tenancy if she thinks that you have changed your minds, so make a note that you will serve notice after four months to end at the end of the tenancy). I know it extends her tenancy a little longer than you would want, but I think this is the only way of being certain to get her out. I know agents can sometimes not do what is wanted, but they would generally keep the paperwork in order and can save this kind of unpleasantness with acquaintances who abuse the privilege.

At this earlier meeting we agreed and put in writing that the tenancy would begin a month later than that stated in the subsequent contract that we both signed and which also bears a witness signature. In support of her case, she has now persuaded other tenants in the house to claim that they have also never seen such documents. (I obviously have copies of everyone's documentation).

She has now stayed two weeks beyond the six month fixed term period and has told me to keep the deposit in lieu of the rent owed for the extra month that she wishes to stay. However, I am unsure whether she can be relied upon to leave (I would be happier if she did) even though she has stated this in writing and signed the letter (I have noticed that her signature is also now beginning to change from that supplied at the time she signed the contract, inventory, and deposit receipt.

I am concerned about supplying proof of service of S21 - hand written onto the contract (which we have both signed and bears a witness signature) is the statement: ‘S21 issued at the time of the contract’. Is this sufficient?

If I delay serving the N5b will I create a periodic tenancy? I wish to avoid this at all costs.

You read that the courts will always favour the tenant. Do you think it likely in this case? If I issue the N5b, how likely is it that the court will be swayed by her allegation of a forged document and the fact that she can supply statements from other tenants who claim that they have not received similar paperwork (albeit witnesses whose contract dates do not correspond with hers and who also have a vested interest in seeing how much she can get away with).

Since she refused to go, the washing machine has suddenly been so seriously damaged that the insurance company has declared it an uneconomic repair and authorised a replacement machine. This has taken nearly two weeks to sort out (my own inspection to check if it warranted a call out, time spent awaiting the insurance call out itself, time spent awaiting the report and authorisation letter for a replacement, time spent awaiting the next available delivery date) and I am expecting she will try and use this against me to try and stay for longer. What can I do about this except to offer to pay for use of a launderette? How can I protect myself from further damage to the property being explained away by the tenant as "wear and tear" and then being used to offset against rent owed.

I cannot see that a broken washing machine justifies her staying longer – it would encourage me to go. The day after the tenancy expired, you should have gone to court and applied for a possession order – a section 21 is the accelerated possession procedure and you should therefore get possession quite quickly. The court would want to see all the paperwork – the tenancy agreement and the section21, which you may have served at the same time but is a separate piece of paperwork.

My understanding is that there is no defence or mitigation when a section 21 is served, so there should not be any discussion. However, if the tenant insists on fighting this, then it will be up to a court to decide whether they believe the signatures are correct – I think that handwriting is very difficult to change completely so try not to worry about it too much.

I think offering to pay for the launderette to enable the tenant to do her washing over the two weeks without a machine is very fair. I am afraid there is no safeguard against further damage, but if you take your tenant to court for any lost rent or damage, you need a good inventory and photographs of any damages; a court is not stupid – they will be able to tell what appears to be normal wear and tear, and therefore a hazard of private renting, and what is due to carelessness or malice.