Landlord wants to evict, we want to stay a little longer

[tokyodrifter]

Me again! Been on these forums before for bank charges (raging success) and debt collector (another complete success). What a great place this is!

I'll try to keep this brief, as I could ramble on for pages otherwise.

Me, girlfriend, 5yr old son and 5mo baby moved in to rented flat Sep 2007. Landlords decided to sell flat and gave 2 months notice for 26th July 2008. We have found a great new flat but can't move in until 8th August. Landlord is unsympathetic as they were hoping to let 'some friends' stay in the flat after 26th July.

OK, so, no chance! We're staying until the 8th August right? No way can we spend 10 days in the wilderness!

First letter to letting agents (13th July):

Dear Sir/Madam,

We wish to end our tenancy of xxxx on Friday 8th August 2008. We are hoping that you will agree to this by mutual surrender of the tenancy as of that date.

Please let us know your response ASAP, as time is rather short. Many thanks!

Yours sincerely,

As expected they said no. Now, one technicality in our favour is that the letter they sent for the Section 21 had the date wrong as 26th JUNE (we know they meant July, but hey). As this was delivered 22 May is does not give 2 month's notice and is invalid, right? So, next letter (15th July):

Dear Sir/Madam,

As you have declined to agree to ending our tenancy of xxxx on Friday 8th August 2008 by mutual surrender, we now wish to give the required one month’s notice to end our tenancy on 15th August 2008.

We are aware that you wrote to us on 22nd May 2008 to suggest that our tenancy would end sooner than this, but since the date suggested on that letter (copy attached) is 26th June 2008, it does not give the required minimum of two month’s notice and is therefore invalid.

Our tenancy is now due to end on 15th August 2008. We would still welcome the opportunity to end the tenancy sooner on the 8th August 2008, so please contact us if you wish to do so.

Yours sincerely,

See the plan? Didn't quite work out. I delivered the letter by hand and the letting agent produced a Section 21 with the correct date (which I denied having received, OK?). The letter had the wrong date, the section 21 apparently had the right date...

What it all comes down to now is that we ARE staying until the 8th August. We figure they will have to apply for a court order after the 26th, and by the time that even reaches court we will have vacated the property anyway, right? So they'd be daft to bother.

If they're nice, I'll pay rent up to the 8th August. If they're nasty and do the court order anwyway, I presume I'll have to pay court costs (any idea how much these could be?) If they're going to be like that, I might as well not offer to pay the extra rent from 26th July - 8th August, right?

So that's the situation and plan. Are we safe? Are we right that they won't be able to do anything unpleasant in time to have any effect?

As long as we are safe until 8th August, and at most will suffer an expense of maybe a couple hundred pounds, we'll survive

[Planner]

I would write a simple letter. Say unfortunatley you cant move out until the 8th August. Remind them they cant get you out without a court order which is likley to take much longer than the 8th August. So the choices for them are, 8th August or until they get a court order - end August/early September at the earliest. Make it clear that if they dont agree, then you will remain in the property until directed to do otherwise by the court.

You should continue to pay your rent what every he response is until the day that you leave.

A further thought, has your deposit been protected in one of the three deposit protection schemes? and have you been notified within the correct time period as to which one.

[tokyodrifter]

Originally Posted by Planner

I would write a simple letter. Say unfortunatley you cant move out until the 8th August. Remind them they cant get you out without a court order which is likley to take much longer than the 8th August. So the choices for them are, 8th August or until they get a court order - end August/early September at the earliest. Make it clear that if they dont agree, then you will remain in the property until directed to do otherwise by the court.

That's basically how we have left it. Perhaps I'll pen them one more brief note to that effect, so there can be no doubt.

You should continue to pay your rent what every he response is until the day that you leave.

I could calculate (pro rata) the rent for the period from 26th July to 8th August and pay that on my usual date. Perhaps I will, just to show that I am being as reasonable as possible.

A further thought, has your deposit been protected in one of the three deposit protection schemes? and have you been notified within the correct time period as to which one.

Yes! I think it's called the Tenancy Deposit Scheme? I have documentation at home anyway, and I'm confident that it is in order.

Thanks for the reply and suggestions!

[tokyodrifter]

Changed the locks last night, just to be on the safe side. We also left them a note explaining what we were going to do, and offering to pay (pro rata) the rent for the extra 13 days we need.

I guess that's that, assuming there's nothing they can legally do. Can't wait to get it over with though. The stress is near killing us.

[MrShed]

Nothing legally they can do. You MAY become liable for court costs if they are quick enough off the mark to apply for a court order.

If they do anything without having received a court order, it is unlawful eviction.

[tokyodrifter]

NEW DEVELOPMENT

The landlord is now saying that they will bill us for the new tenants' storage and accomodation costs for the 2 extra weeks that we will be here.

Outrageous, obviously. But is there any possibility of their being able to make good on this threat in law?

[MrShed]

I think there is a chance of it, yes...although I would not like to answer more definitively.

You are staying after notice has expired, which means you are staying after the end of the tenancy in effect. Although you cannot be removed from the property, this is a formality at the point notice has expired as opposed to a right to stay in the property. Therefore, you are liable for the landlords costs of you staying after this date, which could include charges as outlined by him.

[tokyodrifter]

Oh well, that's rather an unpleasant prospect then.

I'd make sure it took as long as possible for any such claim to reach fruition (whilst abiding by the law), and would challenge and counter claim in any way possible of course. What is about being a landlord that so often turns people into such villains?

Guess I'll go research the legalities a bit more...

[MrShed]

Not going to get into an argument....but please do point out what about a landlord legally and legitimately reclaiming possession of his property constitutes him being a villain?

[tokyodrifter]

No offense taken. I don't wish to argue either!

There's a lot of backstory regarding the landlords lying to us about their intentions for the property, being generally uncommunicative and unhelpful. None of which has any bearing on the legalities, so I didn't bring it up.

Secondly, this threat to charge us for storage and accomodation is purely that: A threat. It is not something they are reluctantly compelled to do. It is something they are threatening to do for two reasons. 1) To frighten us away. 2) Spite. The 'new tenants' are friends of the landlord and I do not believe that they require temporary storage etc.

Originally the landlord stated they were selling the property, therefore we assumed that since it would be standing empty for a while they would be amenable regarding a slight overstay. Only at the last minute did they reveal that they actually intended to continue letting the property after all.

We have been absolutely model tenants in every respect, yet the landlords rudely and abruptly went back on their promise of 'a long let' by means of a short note immediately before disappearing on holiday.

I don't expect anyone here to 'side' with me, since you don't know the whole story and even if you did, you would only have my word for it. Regardless of emotions, what CAN be argued are the legalities!

Still interested in opinions regarding the landlord's right to bill us for the new tenants' temporary storage etc, how the landlord would pursue these costs (small claims?), and how long it could take to enforce if so.

[MrShed]

Fair enough - if there is more of a story to it, no worries. Just PLEASE bear in mind that there are many good landlords out there, and it does not help tarring us all with the same brush

[tokyodrifter]

Undoubtedly. Out of 4 experiences with rented accomodation I've had 2 cases of excellent, helpful landlords, and 2 cases where I was 'less satisfied'

[Aequitas]

Back to basics.

The S.21 notice does not end the tenancy. The tenancy can only be ended by the landlord by his obtaining a court order. There can be no question whatsoever of the landlord claiming expenses for the proposed new tenant's accommodation or storage. There is no doubt about that. If the landlord promised the flat to someone before they obtained possession that is the landlord's problem.

[MrShed]

Not that I disbelieve you Aequitas, but can you show where it says this in law? I was always under the impression that the expiry of S21 effectively ends the tenancy, but NOT possession, hence why rent taken after such a date has to be taken as mesne profits?

As I say, I am sure you are right, just goes against what I always thought...

[Aequitas]

The answer is to be found in Sections 5 (1) and (2) of the Housing Act 1988:

(1) An assured tenancy cannot be brought to an end by the landlord except by obtaining an order of the court in accordance with the following provisions of this Chapter or Chapter II below or, in the case of a fixed term tenancy which contains power for the landlord to determine the tenancy in certain circumstances, by the exercise of that power and, accordingly, the service by the landlord of a notice to quit shall be of no effect in relation to a periodic assured tenancy.

(2) If an assured tenancy which is a fixed term tenancy comes to an end otherwise than by virtue of -
(a) an order of the court, or
(b) a surrender or other action on the part of the tenant, then, subject to section 7 and Chapter II below, the tenant shall be entitled to remain in possession of the dwelling-house let under that tenancy and, subject to subsection (4) below, his right to possession shall depend upon a periodic tenancy arising by virtue of this section.

It was (and of course continues to be) the case under the Rent Acts that when the tenancy is brought to an end it is replaced by a statutory right to remain in possession. The HA 1988 is different and clearly provides (a) that if and however a fixed term comes to an end it is immediately replaced by a periodic tenancy and (b) a periodic tenancy cannot be brought to an end by a notice to quit.

The practice of demanding “mesne profits” (and indeed refraining from demanding rent) for any period between the date of expiry of a S.21 notice and the date the order for possession takes effect is quite unnecessary. Mesne profits can only arise in respect of a period of occupation after a tenancy has come to an end.

[MrShed]

Cheers Aequitas!! Tried to rep you but gave you some too recently apparently

Tokyo, would appear that obviously you wouldnt be liable for for those charges