Help with tenant issues

[lynski3053]

Hi. My tenant has just given me her notice on the 7/10 to leave the property for the 7/12. Her Shorthold Tenancy Agreement actually expires on the 19/10.

She found another property and asked if she could leave on the 21/10. We both agreed to this and I have advised the new tenant they can move in on the 22/10.

I put the mutual agreed leaving date in writing and asked the tenant to sign a copy today however her new house has fell through and she has advised she will stay in the property with squatters rights and will not sign this letter.

Does anybody have any advise for me on where I need to go with this one? Any help much apriciated.

[Planner]

She doesnt have squatters rights, the AST will just lapse into a statutory periodic.

[lynski3053]

Hi, Thanks for that. As she gave me her 2 months notice on the 7/10 will she need to leave the property on the 7/12. Sorry to ask. Also as her rent is paid every 4 weeks is it 2 months or 8 weeks notice that she needs to do. Thanks

[Ed999]

IMHO, the tenant is probably not legally required to move out at all, as matters currently stand.

If you want to regain possession, then it is probably up to you to serve a notice on the tenant under the Housing Act, to terminate the tenancy. This would be the prudent course of action.

Certainly the surest way to get rid of this tenant is for you to simply give the statutory eviction notice. Read this thread on how to do it: http://www.consumeractiongroup.co.uk...-eviction.html


As to Surrender -

There has probably not been a surrender, because (a) the tenant has not vacated the premises, and (b) no deed of surrender has been signed.

The most there can have been is an agreement to surrender at a future date. But as there is no deed, an agreement to surrender might not have been validly formed, legally speaking. Did money change hands? If not, there is probably no valid contract of surrender, because payment of money (known legally as "the consideration") is necessary to make a contract legally binding, except where the contract is in writing and under seal (i.e. where it is embodied in a deed).

You might argue that there was valid consideration, since you changed your position, legally speaking, by agreeing to re-let (if that actually happened). But you will certainly need to engage a solicitor to argue the complex legal issues that would then arise.

Moreover, if there is nothing in writing to prove the surrender, it is your word against the tenant's as to whether the surrender was actually agreed, or was still being negotiated.

There is no part performance here that might evidence such a contract, because the tenant has not vacated the premises.

But the common law rules are very complicated, and you might have a futile time trying to argue them in court, where anything can go wrong. And a Court action might taken several months.


As to the tenant's notice -

It is certainly not possible to terminate a fixed term tenancy by notice, so the notice given cannot have done that (provided that the tenancy agreement does not contain a "break" clause, also called a notice clause, allowing that: which I assume it does not, as you haven't mentioned one).

It is probably not possible to terminate a tenancy which does not exist. If so the notice given on 7 October can't have terminated a periodic tenancy that has not arisen (the fixed term not yet having expired). A tenant must give a minimum of 28 days notice to terminate a periodic tenancy, but your tenant probably cannot do so today, or on 7 October, since no such tenancy existed at that date.

But the common law rules are very complicated, and you might have a futile time trying to argue them in court, where anything can go wrong. And a Court action might taken several months to be heard.



Advice & opinions on this forum are offered informally, without any assumption of liability. Use your own judgment. Seek advice of a qualified and insured professional if you have any doubts.

[MrShed]

To simplify most of this - the tenant still has a valid tenancy until you have served two months notice and this has expired. Even then, you cannot remove them without getting a possession order from the courts.

[Nightmare4banks]

Hi all!

I would just like to add:

1.Your tenant would still be tenant as a Periodic Shorthold Tenancy is automatically created once the fixed term expires.

2.Why do you evict a paying tenant?

However,if you have a problem with getting your rent simply evict using the shorthold rule i.e. you want your property vacant.Using the Accelerated Possession process is the best option and the possession order would be absolute and in favour of the owner.You must make sure to serve the correct 2 month notice otherwise your possession order will not be granted in your favour by the judge.

3.However,please note that the Accelerated Possession process cannot be used to obtain rent arrears.

4.If it does go as far as an eviction I would suggest that you attend with the bailiff and get a police officer to attend if needed.At the end of the day it is not a very pleasant thing to do and you never know you may have some problems.Also,make sure to change the locks.

DO NOT WORRY BUT DO NOT SAY YOU HAVE NOT BEEN WARNED!!

I hope you find this information useful.

If you have any more questions,please feel free to ask.

Keep us posted.

All the best!

[Ed999]

The o/p has a serious problem if she has signed a new tenancy with a new tenant, because she won't be able to give possession to the new tenant.

Certainly, a section 21 notice would be the fastest way to end the old tenancy, but in my experience it will take at least 3 months before the court order is made (2 months notice, plus 4 weeks for the court to deal with the possession application).

[lynski3053]

Hi

Many Thanks to everyone who has replied.

The tenant has left yesterday by mutal agreement and I have returned the bond.

However upon further inspection (after the tenant vacated and bond returned) there is some damage I have found and also some of my property has been removed from the premises.

When the tenant first moved to the property a year ago I took a months rent up front she is dss so the housing benefit have been paying behind so this months cheque is in effect a refund for her on her rent she is right as I have double checked this. I have confirmed in writing that I will refund her the rent once the cheque arrives and clears from the housing benefit department. As I have now found these items missing and damage can I withold the money/ charge for damage from this or will I need to persue this down the legal route ( I do have a forwarding address). Sorry to ask but I am new to all of this and have only been a LL for 1 year and this is also my first tenant. Any advise will be much appriciated.

[Nightmare4banks]

Hi all!


lynski3053,

I have one question for you:

Was an inventory signed before granting the tenancy to the tenant?

The answer to this question should hopefully enable me to assist you further.

[lynski3053]

Hi yes it was

[Nightmare4banks]

Good on you!

1.You should be able to work out the replacement values for the missing items -betterment is NOT allowed and take into account "reasonable" wear and tear.

2.You can also charge for your time spent in doing this say three hours work multiply this by - I think the current acceptable rate is just under 10 quid per hour.The EXACT rate is posted in another thread on this site within the Landlord & Tenant Section.

3.When you receive the cleared funds simply deduct the costs of the replacement items plus your hours of labour and send your former tenant the balance together with a statement and crossreference this with a copy of the inventory that was signed jointly with your former tenant.

4.Send any cheque and statements by recorded delivery post - so they cannot deny non-receipt.

I hope this helps.

If you have any questions or need more guidance,please feel free to ask.

Keep us posted.

All the best!

[lynski3053]

Many many Thanks.

[lynski3053]

Hi would it be worth sending her a letter before deducting the money or just deduct it anyway. She is coming to collect the refund on Friday 26/10 (this is the date when the cheque clears and the ex tenant is aware of this) I will have witnesses here of course. I have worked the charges out to be 204.73 however if the items are returned then she will only be charged 96.40

I found the rate of labour pay Thanks nightmare it's 9.25 p.h. you can also charge for miledge at 40p per mile if necessary

[Nightmare4banks]

lynski3053,

In reply to your last post:

No.

Just send her the cheque with the balance.

Should she contact you and complain,you could offer her the amount you stated if you wish subject to the items not being damaged.

Personally,I would not do this as it becomes messy and confusing.

My advice/suggestion is to keep it simple - she took your items and you make the lawful/reasonable and fair deductions accordingly.Matter concluded!

I hope this helps.

All the best!

[Ed999]

Read this thread: http://www.consumeractiongroup.co.uk...ml#post1188882

It sets out the tenant's legal rights in this situation, so reading it should help you to avoid the usual pitfalls.

[Nightmare4banks]

lynski3053,

If you signed the inventory from April of this year onwards the new rules would apply.

However,if you have already returned the bond this would imply that the inventory was signed prior to April.

So carry on and good luck!