Help preparing for court

[spitfire1]

Hi

 

I am a landlord who is owed 2 months rent (almost 3) I have served section 8 notice and filed for eviction via PCOL, I have got a hearing date set for early November and I haven't got a clue what I need to do ?

 

My tenant is a very clever gentleman who is on benefits and is therefore getiing free legal advice, I, on the other hand am at risk of having the property he is in living in and my home reposessed as I am getting into real debt !.

 

My tenant is being represented in court and is preparing to file a counter claim against me.

 

The history is this:

 

Tenant moved into the property in May, there have been some repairs need, the property was managed by a letting agent, from what has emerged, at the start of the tenancy the tenant reported some minor issues to the agency and they basically ignored the tenant, eventually the messages strarted getting through to me, but not before the tenant had become irritated and was now actively seeking issues.

 

The situation escalated and eventually I realised that something had to be done, I then disinstructed the agency to deal with any repair issues and instructed the tenant to only report repair issues to me and in writing, unfortunately during this period he had got Environmental Health involved and they heaped a load more issues on top, i.e. they risked the electrics as a category A and ordered a periodic review and inspection of the installation and that all remedial works should be carried out to IEE standards, other things included loft insulation etc.

 

Anyway, during all this time the tenant has not paid his rent (although he has not actually told me why) but I received a letter from the housing department informing me that Mr xxxxxx was not paying his rent due to repair issues that were so serious that Env Health were involved.

 

Well as I said, the case is going to court next month and I haven't got a clue how to deal with the court, I am really confused on how to prepare my case!!!!!!!!!, can anyone give me an idiots guide on how to prepare, bundles, witness statements (examples would be great!) also as it is PCOL how do I submit my evidence etc

 

Any help greatly appreciated.

[MrShed]

Have the remedial works been performed?

[spitfire1]

Have the remedial works been performed?

 

 

Environmental Health asked for loft insulation to be layed, I wrote back saying that I didn't regard it as a repair S11 act and that funds were obviously tight with no rental income, I stated that I would look to have it installed next summer or when funds become available.

 

Other Env health issue was state of roof, yes it will beed replacing but in the meantime I've had it looked at and there are no current signs of water penetration.

 

apart from 2 minor repairs that the tenant has scratched around to find this week, thats it !

[MrShed]

What about the electrics you mentioned?

 

To me there are two basis for the tenant withholding rent:

 

- The property is uninhabitable. I assume this is not the case according to EH?

 

- The repairs have been carried out by the tenant, and he has used his "right of offset" to use the rent due to pay for these repairs. Again, I assume this is not the case.

 

Seems to me that the tenant does not have a leg to stand on. However, I would strongly advise the remedial works are performed before you go to court - gives the tenant no defence.

[spitfire1]

What about the electrics you mentioned?

 

To me there are two basis for the tenant withholding rent:

 

- The property is uninhabitable. I assume this is not the case according to EH?

 

- The repairs have been carried out by the tenant, and he has used his "right of offset" to use the rent due to pay for these repairs. Again, I assume this is not the case.

 

Seems to me that the tenant does not have a leg to stand on. However, I would strongly advise the remedial works are performed before you go to court - gives the tenant no defence.

 

There was actually nothing wrong with the electrics - full periodic done, no faults found, but new IEE regulations say you need bonding between shower and light, this was done and a minor works installation was issued- WORK Completed

 

I have since found some loft insulation at B&Q which is on offer and can do the loft for £60, so im going to lay that at some point next week.

 

The tenant hasn't spent anything and hasn't formally told me why they are withholding rent.

 

Do you have any idea on how to prepare my case, i.e courtprocedure, bundles???, witness statements etc- totally in the dark and very very confused

[GlasweJen]

Sorry but if the environmental health are involved it has to be pretty bad.

 

Court bundles are explained in the bank templates library. The most important bits are that you include relevant legislation, any relevant case law and copies of any correspondence that relates to the claim. You make 3 idential copies and make sure there's a contents page with all pages clearly numbered.

[spitfire1]

Sorry but if the environmental health are involved it has to be pretty bad.

 

Court bundles are explained in the bank templates library. The most important bits are that you include relevant legislation, any relevant case law and copies of any correspondence that relates to the claim. You make 3 idential copies and make sure there's a contents page with all pages clearly numbered.

 

Thanks for your advice- appreciated, do you have any links? examples?, sorry I know i'm a bit thick but its all legal jargon to me and means nothing.

 

 

however

 

Why would you assume that because Env Health are involved it has to be pretty bad?, Environmental Health are obliged to inspect any rented property at the request of a tenant, it doesn't neccesary follow that living conditions are bad, for example, the electrics were assessed as a band A risk (the highest level) a periodic report was ordered but all was well, infact the electrician noted that installation was "excellent"

 

So please don't make assumptions, there are some nasty vindictive tenants out there ! and I'm sure there are some nasty Landlords i'm not one

[MrShed]

Dont get me wrong spitfire, not assuming you are a bad landlord. But I think what Jen is suggesting is that for EH to either suggest or demand works are done, this is not something they do lightly. Hence why it would be strongly advised to do everything they have mentioned prior to the court date.

[spitfire1]

Dont get me wrong spitfire, not assuming you are a bad landlord. But I think what Jen is suggesting is that for EH to either suggest or demand works are done, this is not something they do lightly. Hence why it would be strongly advised to do everything they have mentioned prior to the court date.

 

A list of minor things, i.e. electrics, a new door lock, replace a bit of window frame and loft insulation, well I wasn't going to do the loft insulation, but have decided that for less than £100 I may aswell do it- no issues remaining.

 

Also, having read the HHSR guidance infor, the items listed are standard stuff, add a manipulative and persuasive tenant and you have a Env Health officer under pressure, lets take this thread for example, the power of having Env Health involved suggests that there are severe repair/living conditions at the property !- perception ! perfect fodder for sympathy at a court or the local housing offcer !- i've got a very clever tenant

 

Just need to put together all the paper work to file my case and quite frankly i'm out of my deprth and doomed to failure against a tenant who is vindictive in the extreme, smart with it and is being represented in court etc because he's claiming benefits and on legal aid- just doesn't seem fair to me that there are so many lazy B*st*rds who are better off than those who get on with their lifes and work for a living.

[GlasweJen]

Yes sorry that's what I meant, not that you're a bad landlord but that the EH usually mean business if they're writing letters. Make sure you do everything that's humanly possible to comply with the EH - that will go in your favour somewhat.

 

I'm afraid I know absolutely no case law on this but your library will have law textbooks, CAB might be able to give you some case names then it's just a case of printing off the case notes for the bundle I think. Reciepts for all work carried out would be helpful and certificates from people like CORGI and the like to say that the work is up to standard.

[spitfire1]

Yes sorry that's what I meant, not that you're a bad landlord but that the EH usually mean business if they're writing letters. Make sure you do everything that's humanly possible to comply with the EH - that will go in your favour somewhat.

 

I'm afraid I know absolutely no case law on this but your library will have law textbooks, CAB might be able to give you some case names then it's just a case of printing off the case notes for the bundle I think. Reciepts for all work carried out would be helpful and certificates from people like CORGI and the like to say that the work is up to standard.

 

No offence taken

 

I've complied with every observation made by a EH (pending loft inds this week), i've got more certificates and invoices for this property than my own home, boiler and gas installation breakdown service- you name it- the property has it.

 

Ok- so its down to the library I go this week, hearing in a few weeks, always found CAB to be a complete waste of time !!! usually run by people who know as much as I do- very little, never been helped once by them- now given up on them.

[MrShed]

Exactly as you say spitfire - perception is the key

 

Hence why it would be very advisable to do everything on their list before the court date, even if they are minor items.

 

Good luck !

[GlasweJen]

Spitfire you want to make sure you come across as a concerned landlord who's doing everything he can by making sure the accommodation us up to standard and meeting requests in a reasonable time as your tenant will try to paint you as some scrooge type landlord. You want the court to see that despite your best efforts you're getting messed around for rent by this tenant who is on benefits and is milking the system to get what he wants without paying.

 

Certificates are important here, go through everything make sure the dates are all in order, get as much stuff together as you can because that will be key to proving that you're doing all you can. I don't see why loft insulation is all that important if I'm honest, yeah it's good for cutting electricity bills but at your expense?

 

Office of Public Sector Information has legislation that you can search by key word, it's time consuming but you'll get there eventually. You can search through cases here http://www.accesstolaw.com/site/default.asp?s=5 but I'm not sure how much use that site is as I never use it.

 

Good luck spitfire, keep us up to date.

[Ed999]

A section 8 possession claim is bad tactics.

 

To see why, read this thread carefully: http://www.consumeractiongroup.co.uk/forum/landlords-tenants/116385-shorthold-tenancy-posession-eviction.html

 

For information on your actual legal obligations as to repairs, read this thread: http://www.consumeractiongroup.co.uk/forum/landlords-tenants/74057-disrepairs-privately-rented-accommodation.html

 

For help on preparing your case for a court hearing, read Patricia Pearl's book, here: http://www.consumeractiongroup.co.uk/forum/announcement.php?f=47&a=35

[spitfire1]

A section 8 possession claim is bad tactics.

 

To see why, read this thread carefully: http://www.consumeractiongroup.co.uk/forum/landlords-tenants/116385-shorthold-tenancy-posession-eviction.html

 

For information on your actual legal obligations as to repairs, read this thread: http://www.consumeractiongroup.co.uk/forum/landlords-tenants/74057-disrepairs-privately-rented-accommodation.html

 

For help on preparing your case for a court hearing, read Patricia Pearl's book, here: http://www.consumeractiongroup.co.uk/forum/announcement.php?f=47&a=35

 

I appreciate your reply, but i'm baffled as to why you think S8 is bad tactics?, presumably you would allow a tenant to live rent free?.

 

There are no disrepairs issues, yes repairs have arisen, but I've always dealt with them.

 

My tenant has never actually stated why they aren't paying their rent, no I have got a very cunning tenant indeed !, screaming negligant landlord, call in EHealth, go to the doctors claiming stress.

 

I've got all the certificates, repairs are done promptly and any delays are generally caused by denying me access to fix them.

 

Sorry but i'm nobodys mug- just finding it hard to deal with the legal aspects- would love to buy the book by Patricia Pearl but quite frankly i'm skint and living on credit, while my tenant is quids in laughing their head off at my expense.

[MrShed]

I understand Eds logic. A S21 would be better, as it is automatic rather than requiring a hearing where you could get a tenant-sympathetic judge.

[spitfire1]

I understand Eds logic. A S21 would be better, as it is automatic rather than requiring a hearing where you could get a tenant-sympathetic judge.

 

 

True, but with over 7 months left of the AST to run, thats about another 6k on top of the 2.5k already owed.

 

So no-i'll take my chances with S8 and hope there is some justice in the world, although I have my doubts, it just seems to me that the law is stacked in favour of the workshy scroungers.

[MrShed]

I agree spitfire, you should proceed as you are - I can just see what Ed means

[Ed999]

My suggestions were based upon the usual assumption, that you had granted a standard shorthold tenancy.

 

As you had not stated the tenancy was subject to a fixed term the suggestions were intended to assist you in evicting a tenant under a periodic tenancy.

 

As a Section 21 notice cannot take effect until the fixed term has ended, I agree that in those circumstances you are compelled to rely on section 8.

 

 

You have not indicated, either, which statutory Ground or Grounds you are relying on under section 8.

 

There seems to be a great deal of confusion in your approach. Are you seeking to evict on a Ground of simple non-payment of rent? If so, on which of the alternative Grounds do you rely? Have you pleaded the alternative ground as a safeguard?

 

Can you establish a mandatory ground for possession or not? If you can, why are you bothering with issues of disrepair?

 

Has the tenant quantified (or even pleaded) a counterclaim for damages for disrepair? If he has, does the amount quantified reduce the outstanding rent arrears below the mandatory level?

 

Have you considered the possibility of instructing a solicitor, if there are thousands of pounds at stake and you are unclear what you have to prove in order to win your case?

 

 

 

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.

[lindyhop]

hi.

 

what type of tenancy does your tenant have? if an assured shorthold tenancy possession is pretty much straight forward. only a little bit complicated if now periodic. why secion 8 and not section 21 notice?

 

under section 21 notice possession is pretty much guaranteed, only problem may be when you get the property back as it may involve you returning to court to apply for a bailff warrant. judges normally allow the tenant 28 days, if they have not left by the 28th day, thats when you go back for the bailiff which dependant on the time of year is about another 2-4 weeks on top. once the bailiff turns up the tenant has to leave as it is part of the duty of the bailiff to ensure you get vacant possession of your property before they leave your property. you have to sign their docket to confirm that they have done this.

 

possession hearings are usually held in chambers these days (your case is not heard in front of stranges). you have nothing to fear, you will just be

sitting around a table or in an empty court with the tenant and their rep.

 

if all the information is not clear on the day or additional information is required by the judge the case will be adjourned to the first open date after a set time, even this you can negoiate with the judge. it will be up to the tenant and their rep to show good cause as to why any extra time on what the judge is allowing should be given.

 

another option the judge can take is to suspend the possession order on terms, and it may be this that your tenant is going for. if this happens the minute the terms of the court order have been breached go straight back to court.

 

section 8. does your tenant hold an assured tenancy? getting tenants out on an assured tenancy is far easier than a secure tenancy, but not as easy as an assured shorthold.

 

it is best to get any outstanding work done by the hearing as the tenant will have had to make sure that they have put the rent money aside to pay you in full

 

above all please please make sure your paperwork is correct before you go to court, that you can provide a full rent account from the start of the tenancy or last couple of years so the judge can see a full picture

 

copies of and outcomes of any investigative work carried out/ reccommended/any builder report disputing the tenants claim (disputing Env H is harder), your copy of the notice issued etc. a judge will quickly spot any error in the possession procedure ie the notice and could throw out your case meaning you will have to start again to notice stage.

 

have i forgotten anything? i did rent arrears and nuisance possession between 95 and 2005 for LA's and HA's as a housing manager.

i am now working on the other side of the fence for a LA, doing homelessness prevention - now that is funny, but it means i am familiar with these procedures from both sides

 

hope most of this is clear, if not just ask me to clarify in more detail.

 

lol

[Ed999]

A section 21 notice cannot be given during the fixed term, which still has seven months yet to run.

[spitfire1]

A section 21 notice cannot be given during the fixed term, which still has seven months yet to run.

 

 

Just to make it clear, my tenant has a 12 month AST, started in May 2007

 

i've served a S21 notice and S8 notice, S8 issued on Grounds 8,10,11 &12.

 

So are you saying the S21 notice I issued is null and void?

[spitfire1]

hi.

 

what type of tenancy does your tenant have? if an assured shorthold tenancy possession is pretty much straight forward. only a little bit complicated if now periodic. why secion 8 and not section 21 notice?

 

under section 21 notice possession is pretty much guaranteed, only problem may be when you get the property back as it may involve you returning to court to apply for a bailff warrant. judges normally allow the tenant 28 days, if they have not left by the 28th day, thats when you go back for the bailiff which dependant on the time of year is about another 2-4 weeks on top. once the bailiff turns up the tenant has to leave as it is part of the duty of the bailiff to ensure you get vacant possession of your property before they leave your property. you have to sign their docket to confirm that they have done this.

 

possession hearings are usually held in chambers these days (your case is not heard in front of stranges). you have nothing to fear, you will just be

sitting around a table or in an empty court with the tenant and their rep.

 

if all the information is not clear on the day or additional information is required by the judge the case will be adjourned to the first open date after a set time, even this you can negoiate with the judge. it will be up to the tenant and their rep to show good cause as to why any extra time on what the judge is allowing should be given.

 

another option the judge can take is to suspend the possession order on terms, and it may be this that your tenant is going for. if this happens the minute the terms of the court order have been breached go straight back to court.

 

section 8. does your tenant hold an assured tenancy? getting tenants out on an assured tenancy is far easier than a secure tenancy, but not as easy as an assured shorthold.

 

it is best to get any outstanding work done by the hearing as the tenant will have had to make sure that they have put the rent money aside to pay you in full

 

above all please please make sure your paperwork is correct before you go to court, that you can provide a full rent account from the start of the tenancy or last couple of years so the judge can see a full picture

 

copies of and outcomes of any investigative work carried out/ reccommended/any builder report disputing the tenants claim (disputing Env H is harder), your copy of the notice issued etc. a judge will quickly spot any error in the possession procedure ie the notice and could throw out your case meaning you will have to start again to notice stage.

 

have i forgotten anything? i did rent arrears and nuisance possession between 95 and 2005 for LA's and HA's as a housing manager.

i am now working on the other side of the fence for a LA, doing homelessness prevention - now that is funny, but it means i am familiar with these procedures from both sides

 

hope most of this is clear, if not just ask me to clarify in more detail.

 

lol

 

 

Lots of helpful advice- Thank you !

[Ed999]

Just to make it clear, my tenant has a 12 month AST, started in May 2007

 

i've served a S21 notice and S8 notice, S8 issued on Grounds 8,10,11 &12.

 

So are you saying the S21 notice I issued is null and void?

 

 

Read this thread: http://www.consumeractiongroup.co.uk/forum/landlords-tenants/116385-shorthold-tenancy-posession-eviction.html

 

Without seeing the section 21 notice, I can't tell whether it's valid. But the thread I'm referring you to will enable you to decide that for yourself.