The Judge said the Tenant Didnt Have to Pay Rent!

[Emma1973]

Well, that might be a slight exaggeration, but you'll see my point!

 

Partner was up in court yesterday asking for vacant possession of a property because the tenant is owing at least 3 months rent, she has had every opportunity to pay or come to an arrangement, even up to the day before. Of course there has been no communication from her.

 

As usually happens he and the LA assumed she wouldnt turn up in court, but she was, with Legal Aid and solicitor in tow, trying at first to get the case thrown out. The reason for this was that although my partners name is on the Notice to Quit, it wasnt on the Tenancy Agreement, the solicitor was trying to claim this was fraudelent activity and was illegal. Of course that was thrown out.

 

But the main thing she was claiming was that she hadnt been told that her deposit was in the TDS scheme so she thinks it might not be protected, which it is, the LA sends the details out registered post, and gives a copy to the LL as well.

On these grounds she believes she should be able to stay in the property. You see, although she owes 3 months rent, the TDS compliance means that she would be able to claim 3X deposit, therefore she would owe no rent at all! And the judge agreed! The basis being that my partner may owe her more than she owes him, Partner tried to argue that him 'maybe' owing her money was irrelevant, when she 'actually' owes him. However the judge believes it is very relevant.

 

A most bizarre thing methinks, they have to go back in 2 weeks time and take the TDS details with them then the judge will look again, meanwhile the tenant gets to carry on living there rent free!

 

So it seems to me that all tenants have to do to get a few rent free weeks is to say that they never received the details of the TDS! Not having the details certainly seem not to come under a good reason to withold rent payments! So the TDS seems to working against those bad LL's, but this judge appears to be helping out those unscrupulous tenants!

[Steve__M]

This is the sort of story that sends a chill to the heart of landlords such as myself. I would hope that the legal protection under my buildings insurance would come to my rescue to help make sure I had all my ducks in a row.

 

Just a couple of points:

 

1. Possibly what they were arguing was that if the tenant doesn't have the landlord's details then the rent is not due (Section 48).

 

2. Was this purely action under Section 8, or was Section 21 involved. The reason I ask is that if the deposit were not protected a Section 21 notice would not be valid.

[Emma1973]

Hi Steve

 

Nope they werent arguing that they didnt have landlords details, it was purely that as his details were not on the original tenancy agreement but were on the notice of possession, that the notice was invalid. And if it wasnt invalid then the LL and LA were committing fraud!

 

And it was a Section 21, and the deposit is protected as confirmed to him yesterday

[Steve__M]

Emma, If the landlord's details were not on the original tenancy agreement then it could be in breach of Section 48 of the Landlord and Tenant Act 1987, which would mean that rent was not due (and therefore could not be in arrears):

 

Landlord and Tenant Act 1987 (c. 31) - Statute Law Database

 

Your second point suggests that landlords in your partner's position should ensure they provide proof of having served the Prescribed Information for deposit protection before the Section 21 notice was issued.

 

PS. Just realised my reference to Section 48 was turned into a stupid smiley as in (Section 48) !

[Emma1973]

They were absolutely definately not in breach, hence the judge threw those claims out!

 

They send the Prescribed Information by Recorded Delivery, and the tenant has signed for it. She's just trying to pull a fast one and delay things!

Though if this keeps happening perhaps they should send a copy of the Information with every Section 21 notice!

[Emma1973]

The next instalment! This was due to go back before the courts before Wednesday of next week in order for the LA to produce the TDS details so the house could be got back.

 

LA phoned court today to find out when court date was as they'd had no details to find that the judge hadnt sorted her paperwork till yesterday and has submitted the case to be heard in 7 weeks time! So the tenant gets to live there for another 7 weeks absolutely rent free, by the time this comes back to court it will be 5 months of rent free accommodation.

 

And the irony is that the tenants solicitor was arguing that 14 days was nowhere near enough time to get this sorted, and the judge was adamant that 14 days was 'ample' time to bring this matter to a close.

 

Honestly I can see why some landlords resort to underhand tactics now!