Worried Landlord - Tenants not paying rent and claiming x3 deposit

[Britannia1]

Lawdoctor,

 

Being the Landlord do I ask for what you said, or is this just for tenants?

 

Thanks

[lawdoctor]

Hi

 

If you get confirmation that the deposit is being held in accordance with the schemes rules, then the High Court decision weighs heavily in favour of the judge on the day dismissing the claim.

 

As I have posted frequently, I am of the view that the tenancy deposit legislation drafted as it is is not subject to counter-claim.

 

However there is another approach, commence, without delay, a seperate claim for the outstanding rent and damages for breach of contract etc. When the claim is issued make an application to the court to have the tenancy deposit claim 'stayed' pending the outcome of your claim as mentioned above. In the meantime defend the current claim in the normal manner.

 

It should not have to be this way I know but I did not draft the legislation or the Civil Procedure Rules that govern these matters. Looking for a silver bullet to fell your opponent without any pain to yourself is not always an option in law.

 

Lawdoctor

[Britannia1]

Lawdoctor,

 

Thank you, sounds a good plan.

 

Just to pad out, the Guild of Residential Landlords are preparing an evidence file for me, using the recent court case and how the mydeposits.co.uk wording has a similar meaning, thus the positioning that my case is similar so should have a similar outcome.

 

I have sent an urgent email to Mydeposits.co.uk requesting confirmation as you mentioned.

 

As the tenants are 2 months in arrears, I have to wait 14 days and my Property Management Agent sent the s.8 and s.21 on 16 February 10. So when I submit my ‘acknowledgment of service (part 8 claim)’ by 4pm on Friday 05 March, I will do as you say have the ’deposit’ claim stayed pending outcome of my s.8 claim.

 

Am I right in thinking you can complete on line the N5B accelerated eviction? Or would I need to physically call into Southampton County Court to tell them as you say to make the deposit claim’ stayed’, but hand in the acknowledgment form and my evidence, and tell them I have completed and paid online for the N5B accelerated eviction order.

 

Thank you.

Kind regards.

[lawdoctor]

Hi

 

Forget the s.21 notice for now. That needs, as you will be aware, two months from issue before you can commence proceedings.

 

The s.8 notice only requires 14 days from 'deemed' date of service before you may commence proceedings and further it matters not if your tenant is still in the fixed period of the tenancy agreement so long as they are a minimum of 2 months in arrears of rent at the date of the hearing.

 

But of course were the tenants to bring the total sum of arrears under 2 months on or before the hearing date the mandatory grounds for possession would no longer exist.

 

Should you go the section 21 route, accelerated possession, you would be unable to claim any arrears of rent. I cannot stress strongly enough how important it is to get the notices correctly served and also the need to proceed in a carefully constructed fashion that suits all the circumstances of your dilemma.

 

Are your tenants/trespassers represented in any way?

 

Unfortunately I have a dinner engagement this evening and cannot therefore afford you much time now. I am quite experienced in the areas of which we speak and will gladly provide my input in the coming days.

 

How was the section 8 notice served on the tenants?

 

When was the expiry date of the s.8 notice?

 

Will catch up with you tomorrow.

 

Lawdoctor

[lawdoctor]

Sorry, forgot to answer some of your points.

 

Chapter 10 section 9(1) & (2) a request under this section in the circumstances I believe would naturally be available to the landlord.

 

You would need to complete a general application form N244 to apply to have the proceedings stayed, the current fee is, I believe, £75.

 

Must rush.

 

Lawdoctor

[Britannia1]

s.8 served by Letting Agents in Januray 10, when I appointed them after this all kicked off.

 

Have allplied for confirmation from mydeposists.co.uk

 

Expiry daye of s.8 02/03/10. Tenant was told to pay landlord since I appointed them, he did try paying £66 in January into my RBS account after he was told to deal only with the Agent and I returned this £66 saying I was not aware what the cash payment was for and to re state as he is aware to pay the full rent of £850 to the letting agents bank account, he then ignored this and paid £20 cash into my RBS on 15 February 10, I did the same thing, sent him a cheque and letter saying I had no idea what he is paying £20 in cash into my account and to pay the full rent into the Letting Agents Bank account. Obviously he is trying to pull a fast one.

 

Juts like I had £20,000 spend on the property in 2007 for an internal , make over, new electrics, kitchen, bathroom ,wood flooring. Then he sends me a letter in Januray 10, saying he needs copy, electric cert, wiring needs checked, wants my insurance policy, etc. I have everything all gas, elect etc EPC in order.

 

I know he is doing this to try and use s.11 to justify not paying rent, which is rubbish as property is in excellent order.

 

I now know why he won't claim Local Housing Allowance (LHA).

 

Firstly, he lied to me when I gave him the tenancy, he said that he had an up and running business tile restorations. He had been repairing Victorian tiles in London, mostly insurance claim jobs. Now I know since he moved in to my property in , showing me his web site before he moved in June 2009, he has not done a days self employed work.

 

So maybe he built up savings, then decided to stop? He told me he wanted to move to Southampton from London to set up the same Victorian tile repair, but I always thought it sounded a bit strange. Yet I never questioned as the rent was paid, until December 2009, when this all kicked off.

 

Now I believe his Wife and children has returned from being placed by the Police into emergency family sheltered accommodation due to his violence in January 2010, for one reason only to stop being deported to Lithuania, as I now remember when I asked him if his Wife and Children were coming back, he mentioned they could be deported.

 

Now I have read that a Lithuanian can't claim housing benefit and if they did they would be deported!

 

That's obviously why he is hell bent on not claiming LHA benefits and looks terrified when I said this, obviously this is why he is doing everything he can not to claim LHA, and making on he is actually self employed, which is actually a fictitious lie and they are living of Child Benefit which they can claim and to top up his savings and free accommodation he is doing this to me.

 

Surely, a judge made aware of this will agree he is actually trying to stay in the UK without actually working and trying not to show this, by not claiming LHA.

 

I have attached details on this in yellow as shown below:

Could you let me know what you think on this if I have a valid point we can use>

 

Top of Form 1

 

EEA Nationals who have no prospect of finding work or becoming self-sufficient may be considered an unreasonable burden on the state.

Inactive EEA Nationals such as Pensioners or Lone Parents, making claim for benefits, would need to demonstrate that their private funds would resume before long and that they would not be an unreasonable burden on public funds.

 

3. The Habitual Residency Test

Provided you are not subject to immigration control a decision must be made as to whether you are “Habitually Resident” here. “Habitually Resident” is not defined in the Housing/Council Tax Benefit Regulations and has been subject to legal challenge in the courts.

In deciding whether you are “Habitually Resident” here we shall look at such things as:

Why you came to the UK.

Whether you have lived here for an “appreciable period”.

Whether you have the intention to settle and make a home here.

Whether you have a settled pattern of living here.

Why you came to the UK.

In making our decision we shall look at your whole situation to make an informed judgement.

You will be treated as being “Habitually Resident” in the UK if you are:

A recipient of Income Support, income-based Jobseeker's Allowance or Pension Credit (The Dept for Works and Pensions will have already checked your eligibility for benefits).

A refugee.

Someone given exceptional leave to enter or remain in the UK.

A former asylum seeker granted Humanitarian Protection or Discretionary Leave by the Home Secretary.

Someone who has been deported to the UK.

Someone who left Montserrat after 1 November 1995 due to volcanic activity

A national of Austria, Belgium, Denmark, Finland, France, Germany, Greece, Iceland, Italy, Liechtenstein, Luxembourg, Netherlands, Norway, Portugal, Spain, Sweden (EEA nationals) Cyprus, Malta and Switzerland and you are a worker or self-employed.

A national of the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, the Slovak Republic or Slovenia and you are self-employed, or working and registered (or exempt from registering) with the Home Office Worker Registration Scheme. (During the first 12 months you will only be eligible for income-related benefits whilst you are working. Once you have worked without interruption for a period of 12 months you will have the same rights and access to income-related benefits as other EEA nationals).

A national of Romania or Bulgaria

A recipient of Income Support, income-based Jobseeker's Allowance or Pension Credit (The Dept for Works and Pensions will have already checked your eligibility for benefits).

Highly skilled workers have unrestricted access to the labour market and you will be able to claim Jobseeker's Allowance and, if in receipt of that benefit, Housing and Council Tax Benefit whilst you look for work.

Skilled workers, authorised by the Home Office to work for a particular employer, you will be able to claim Housing and Council Tax Benefit whilst working. If you stop working you will no longer have a right to reside as a worker or claim income-related benefits. After 12 months continuous employment you will have the same rights and access to income-related benefits as other EEA nationals.

Low skilled workers:

Employed in the sector based scheme in food processing - you will be allowed to work for one employer for up to 12 months. Whilst working you will be able to claim Housing and Council Tax Benefits. After 12 months, even if you lose your employment , you retain your worker status if you remain in the labour market.

Employed in a seasonal agricultural workers scheme - you will only be allowed to work for six months at a time and must have a break of three months between employment spells. Whilst working you will be able to claim Housing and Council Tax Benefits. During employment breaks you will not be able to claim any income-related benefits as you will lose your worker status. As you cannot accrue 12 months continuous employment you cannot gain full EEA worker status .

Self-employed workers - you are treated the same as other EEA nationals and will be able to claim Housing and Council Tax Benefits whilst you are working. If you stop working as a self-employed person you will be subject to the worker authorisation scheme and will probably lose your right to reside unless you are self-sufficient.

What if I am an Asylum Seeker?

An asylum seeker is someone normally subject to immigration control who seeks to enter or remain in the UK by applying for asylum as a refugee, or who indicates a fear of being required to return to his or her country of origin.

 

Asylum seekers entering the UK from 3 April 2000 are excluded from receiving Housing and Council Tax Benefits and other social security benefits.

 

As an asylum seeker your only rights to support are through the Home Office asylum support scheme managed by the National Asylum Support Service (NASS). Since January 2003 NASS support can be denied to any person who does not apply for asylum immediately on entering the UK.

 

Once your application for asylum becomes accepted and you are granted refugee status you become entitled to benefit in the normal way.

This information is for guidance only. Please contact us to talk about your individual circumstances and we shall be able to give you more information.

 

Do you think I can use this?

[Britannia1]

Lawdoctor,

 

No tenants are not represented

[lawdoctor]

Afternoon Britannia1

 

In answer to your question - can you use tenants residence status?

 

Yes and no! Please read on.

 

I have spent some time familiarising myself with your posting and my gut feeling, based on many years of experience, is that you have very likely unwittingly allowed into your property a habitual professional rent dodger.

 

The advice I give is honest from my own personal experiences but of course you are free to disregard it.

 

You are, as I would view it, in danger of becoming marooned astride the tigers back and any dismount could be long, painful and ultimately very costly. I am of the firm view that your chances of receiving any payment following the granting of a possession order and a money order for rent etc. are very slim indeed. With the best will in the world you are, unless the tenant agrees to leave, at least 4-5 months from being able to legally evict your tenant.

 

If I were stood in your shoes this is what I would do;

 

Assuming you get confirmation from the deposit scheme that the deposit is being held in accordance with the schemes rules then couple this with the recent High Court decision with which the Guild of Residential Letting Agents are assisting you and apply to the court for 'summary judgement' under part 24 of the Civil Procedure Rules. Should this application to the court be refused (it may not be) you can use this same hearing to invite the court to 'stay' the proceedings in accordance with part 3 3.1 of the rules.

 

This will have the effect of allowing your possession claim and claim for rent arrears to be heard before the deposit case. There are other options available to the court under part 3 of the CPR and you should read up on these and you will see the court has great discretion to meet the needs of cases such as yours.

 

I would recommend you read the 'practice directions' to part 24 of the CPR and also part 23 General Rules about Applications for Court Orders, again read the practice direction 23b.

 

These rules are not overly lengthy nor outside your scope of understanding, as I view it from your earlier posts. In any event feel free to come back to me for any advice or clarification. Oh, as an afterthought, read part 1 of the CPR, The Overriding Objectives of the Court.

 

The above is, in my humble view, the correct route to meet your circumstances however even that route is fraught with frustrating length of time and does not of course get you possession of your property for quite some time.

 

So, on to part 2 of the attack.

 

Given that the above application/s is an application that must be made on notice to the respondent i.e. your tenant, I would be inclined to craft together, in addition to the application/s, an open letter (with prejudice) to your tenant to the effect that as a pragmatic person you are prepared to - 'without prejudice' to your contention that the deposit claim will be thrown out of court and that your own claims for damages and rent arrears will be successful - make an offer along the lines of the following;

 

You agree that if the tenant gives up total possession of the property you will return in cash the £850 deposit and forego your right to pursue any other legal remedy against him.

 

I would suggest that you inform the tenant that should he fail to take up this non-negotiable offer you will report the circumstances of how you were deceived into granting the tenancy to the Borough Commander of Southampton police and request him to appoint an officer of his force to enquire into his alleged tile restoration company in both London and Southampton where you believe evidence of offences under the Fraud Act 2006 will be unearthed.

 

If, as you say, he said he was doing insurance work then presumably he would have a vat number. I would throw this and what ever else you can into the mix and hope, as is probably likely, that he has much to hide and fear then hopefully he will decide in all the circumstances to move on to his next victim.

 

This may not be the most ideal scenario for you but I believe it would be cheaper in the long run and allow you to rent the property and cover your mortgage payments much quicker than any other alternative.

 

As MrShed told you earlier on this thread, the legislation is stacked against the landlord and in certain circumstances such as yours MrShed believes the relevant Housing Acts can be "draconian" - I must concur.

 

By the way, the Borough Commander for Southampton police district is Chief Superintendant Matthew Greening. Make sure, should you follow my advice, to use his full rank and name in any correspondence to your tenant (the fear factor!). Matthew Greening is one of the few borough commanders to run his own blog - a decent bloke with old fashioned copper principles to meet the challenges of today.

 

If as I suspect your tenant has pulled this stroke before hopefully this approach will yield you a favourable result.

 

Lawdoctor

[Britannia1]

Lawdoctor,

 

Thanks for your information. I will study what you said.

 

Kind regards.

[Britannia1]

Lawdoctor,

 

I have sent the following letter to the tenants.

 

Regards,

-----------------------------------------------------

 

Dear (edit) ,

 

Open letter (with prejudice) to you as tenants to the effect that as a pragmatic person I am prepared to - 'without prejudice' to your contention that the deposit claim will be thrown out of court, based on the legal file that is being prepared along with the application to the court to use this same hearing to invite the court to 'stay' the proceedings in accordance with part 3 3.1 of the rules.

 

This will have the effect of allowing my possession claim and claim for rent arrears to be heard before the deposit case. I am confident that my own claims for damages and rent arrears will be successful, however I will make an offer as follows:

 

I agree that if you the tenants gives up total possession of the property I will return in cash the £850 deposit and forego my right to pursue any other legal remedy against you.

I would like to inform you as the tenants that should he fail to take up this non-negotiable offer I will report the circumstances of how you have deceived me in granting you the tenancy to the Borough Commander for Southampton police district Chief Superintendent (edit) and request him to appoint an officer of his force to enquire into your alleged tile restoration company in both London and Southampton where I believe evidence of offences under the Fraud Act 2006 will be unearthed, along with offences against the Value Added Tax (VAT) and other tax offences in contradiction to the requirements set by HM Revenue.

 

I am also aware of the following: Self-employed workers - you are treated the same as other EEA nationals and will be able to claim Housing and Council Tax Benefits whilst you are working. If you stop working as a self-employed person you will be subject to the worker authorisation scheme and will probably lose your right to reside within the United Kingdom. Obviously this being why you won’t claim Local Housing Allowance (LHA).

 

I give you until 5pm on Monday 01 March 2010 to accept my offer.

Yours sincerely

 

K

　

Edited February 25, 2010 by ErikaPNP
potential idetifiers removed

[lawdoctor]

Keep me informed i am here to help.

 

Painful but right move i think !!!!!

 

lawdoctor

[MrShed]

"forego my right to pursue any other legal remedy against you."

 

risky - what if they trash the property?

[lawdoctor]

MrShed

 

You are of course right, however, given the property is unlikely to be currently treated with all the love and affection that one might expect in a caring landlord and tenant relationship - what really is the risk in the circumstances of the position we debate?

 

The offer would of course, with or without qualification, be subject to approval at the time of surrender of the tenancy, would you not agree?

 

Of course Britannia1, on your assessment of the obvious problems in arriving at any agreement with 'this tenant', could always perhaps threaten the tenant and advise them of Britannia1's Article 1 rights under protocol 1 of the Human Rights Act 1998 and suggest that any damage caused to Britannia1's property could result in their seeking an extradition warrant for his arrest for a recordable crime committed within the EEA area.

 

When all the hair-splitting is over surely the only issue that matters is that the landlord recovers the property as soon as possible with the minimum inconvenience of damage of which Britannia1 has little or no control.

 

I feel sure that idealistic, perfect solutions were clearly not written into the satnav of these circumstances - perhaps they are the residue of the 'landlord unfriendly' 'draconian' Housing Act legislation of which you previously, on this thread, bore comment.

 

As a parting point, when a party contracts to forego any other legal remedy one would presume that at the point of acceptance the parties agree the terms as they are 'at that point' i.e. offer - acceptance - consideration - job done for better or worse.

 

Lawdoctor

[MrShed]

LD - I fully agree with everything you have said.

 

I still feel that the line perhaps should have been: ""forego my right to pursue any other legal remedy against you regarding rental arrears."

[lawdoctor]

I agree

[Britannia1]

Lawdoctor / Mr. Shed,

 

Thanks for your input. The tenant is not willing to see the merits of my offer and can you believe this paid £20 directly into my Bank Account, when the actual rent is £850.

 

I send him a letter with a refund of the £20, saying I have no idea what this is for as he is aware to pay the full rent and arrears outstanding to my appointed Property Management agents Bank Account, that he holds. As he sent a copy of the letter to the court.

 

I know he is trying to dodge paying, I have told the tenant I have closed my Bank Account so he must only pay rent and outstanding arrears to the agents Bank Account as I instructed him under s.48 of the Landlord & Tenant Act.

 

Ever get get days when an ICBM would come in handy, such as strapping the tenants to it and setting off a 20 Mega ton Nuke.

 

Regards,