Terminating tenancy and repossession

[Banking on change]

My girlfriend and I both have flats which we rent. However whilst Ive been very lucky she is having some what of a nightmare. Her contract has a clause titled Proviso for re-entry which lists several conditions the most important of which being number one below. The list concludes with the statement below regarding re-entering the property.

1. If the rent or any instalment or part thereof shall be in arrears or unpaid at least seven working days after the same shall have become due (whether legally demanded or not) or . . .

The Landlord may re-enter the Property and immediately thereupon the Tenancy shall absolutely determine without prejudice to the other remedies of the Landlord

 

 

 

this reads to me as if you can just walk back in to your property after 7 working days (10 actual days) if the rent has not been paid. But tenants have rights and I know a guy who has just concluded a 3 month court action to remove tenants from his property.

 

 

My question is, the contract we have was written by a solicitor about 3 years ago. Is the proviso legal and can we just open the door and take back possession? The solicitor who wrote it was very experienced so I cant see him making an error but my undersanding is that you need a court order?

 

 

Any help much appreciated

 

 

[Banking on change]

Does anyone have experience in tenancys with a guarantor involved?

 

If the tenant fails to pay the rent and you write to the guarantor what happends if he refuses or ignores your letters. What would be the next step and is there anything in law to help enforce payment from the guarantor?

 

Thanks

[blacksheep1979]

I think you issue a claim against both of them - if you have a letter signed by the guarantor saying they will pay if the tennant doesn't I believe it is similar to a joint tennancy and both are liable.

[blacksheep1979]

I don't think you can force your way back in, I think you may need to get a court order but would speak to a solicitor who specialises in this kind of thing.

 

Tennants are given a lot of rights to protect them and it can sometimes be hard for landlords.

 

I do know the wether legally demanded or not is always added otherwise some several hundred year old law comes into play where the landlord must demand the rent on the day it is due before sunset (presumably so it can be counted in the light)

[Banking on change]

Thank you for the replies to both my posts blacksheep.

 

We have both a letter from the guarantor and he is also named as such on the tenancy agreement. So I guess we are covered.

[Nightmare4banks]

Bankingonchange,

 

Post a copy of the agreement with the person who is acting as guarantor so we can possibly help you out further.

[m3shl]

Did the Guarantor sign either the Tenancy Agreement or a Deed of Guarantee? If so then proceed to the small claims court and add the costs to the claim. This normally puts enough fuel on the fire to get a response.

[meagain]

I do know the wether legally demanded or not is always added otherwise some several hundred year old law comes into play where the landlord must demand the rent on the day it is due before sunset (presumably so it can be counted in the light)

 

Didn't it used to be illegal to wed after sunset so that both parties could be sure they're marrying the right person?

 

On a more serious note, how does this part translate into English?

 

The Landlord may re-enter the Property and immediately thereupon the Tenancy shall absolutely determine without prejudice to the other remedies of the Landlord

[blacksheep1979]

Its basically saying that the landlord may regain possession of the property, but how that goes about I can't remember

[meagain]

All of which leaves you wondering why they don't just say that instead of a clause that doesn't even appear to be grammatically correct (for one, "determine" is a transitive verb and its object is missing).

[watccoe75]

my undersanding is that you need a court order?

 

Correct. The clause isn't worth the paper it's written on IMO. Phone Shelter for a definitive answer though - 0808 800 444 (freephone).

[rbrears]

Its a forfeiture clause.

 

You cannot get possession without a court order. But the Housing Act provides that an assured shorthold tenancy (I assume this is what was granted) cannot be terminated before 6 months. This clause permits the landlord to take action to regain the property earliler than 6 months if the rent is unpaid. The landlord is still bound by the mandatory and discretionary grounds in the Schedule to the Housing Act (2 months rent arrears, etc.) but the clause enables the landlord to issue immediately (for example where the first two month's rent is outstanding) without having to wait for 6 months.

 

Its a remnant of much earlier style leases and thats why the language is a little archaic - but any solicitor drafting an assured shorthold tenancy would be negligent if he/she left it out.

 

Interestingly in years gone by the landlord could actually re-enter and peacefully take back possession but this right has long been dilulted by the equitable right of relief from forfeiture so now a lease cannot be forfeited without a court order.