Landlord's trying to evict me....HELP PLEASE

[SortMeOut]

I've been renting my home for 6 years. Over the past months I've accrued rent arrears for the first time ever due to serious illness. The arrears are at 12 weeks. The landlord has served a Section 8 notice giving the grounds of 2 months or more arrears. I've now received a Possession Order claim form from the court giving me a hearing date.

 

On the same date of the hearing I've got an appointment with a Consultant at the hospital which i had to wait 7 months on the waiting list to get. If I go to the hearing I will have to miss my hospital appointment and wait another 7 months or so to get a new appointment. By the hearing date I will have reduced my arrears to below 2 months but I still think it is important that I attend the hearing in person to try to defend myself.

 

My question is can I apply to the court, sending my appointment letter from the hospital as proof, and ask them to consider adjourning the hearing date to an alternate date?

[SortMeOut]

I posted in a separate thread about the eviction proceedings I am facing.

 

I have hired a solicitor to help me defend the Possession Claim and try to keep my home.

 

I am 12 weeks in arrears but am paying the arrears down and will be at about 6 weeks arrears by the court hearing date.

 

When my solicitor went through all the paperwork between me and the landlord the solicitor noticed that I'd written to the landlord repeatedly asking them to fix various things in my home that are severely damaged. Including severe water damage and leaks. My solicitor immediately swooped on this and had advised me to bring a counterclaim for disrepair against the landlord.

 

The solicitor claims that this counterclaim for disrepair will mean that the judge at the hearing won't make a ruling about the Possession Claim on the initial hearing date but will instead adjourn proceedings while the disrepair claim is looked into.

 

My solicitor seems extremely confident of this. Is it true? I've never heard of it before.

 

I do have a hefty paper trail of my unmet requests to have all the serious damage in my home fixed and I also have photographic evidence of the damage.

[citizenB]

Most of the people who advise in this area will currently be at their day jobs and will look in later on this evening.

 

However, have you spoken to anyone at Shelter ? They might be able to advise if this is correct.

 

http://england.shelter.org.uk/get_advice

 

0808 800 4444

[citizenB]

I think you need to keep your questions regarding this situation to one thread, so all the information is available to people who will be able to advise. I will merge this with your other thread.

[Lea_HTH]

I think you might have been misinformed by your solicitor - no disrespect to whoever it is, but such advice always makes me wonder just how many times they have been in court with a possession claim where disrepair was being used as a counterclaim, as judges are very wise to the tactics used. If the disrepair is so bad as to establish a sufficient counterclaim to off-set the arrears substantially, then the question a judge asks is 'why wasn't a claim brought by the tenant before possession proceedings were brought against them?'. It's a very reasonable question.

 

The other thing that is very likely to happen in such cases is that the judge grants possession under the mandatory ground (ground 8 - more than 8 weeks arrears, or under the discretionary grounds 10 and 11) and adjourns the money claim to be heard with the counterclaim. The argument for this is often that if the disrepair in the property is so bad, then the tenant won't want to stay there anyway.

 

None of the above means that your solicitor is wrong - he/she after all has had the benefit of seeing relevant paperwork and assessing the situaiton first hand. But if I were you, I would not rely too heavily on the possession claim being adjourned simply because there is a counterclaim. Far better to be prepared for possession to be granted (under whatever grounds) than assume otherwise.

 

If you've seen a solicitor I am unsure why you are posting here to ask about whether the hearing can be postponed - surely the solicitor will have filed a notice of acting for you? And if you cannot attend, he/she can attend in your place. With regards to your medical appointment, calling to change the appointment will not result in a further seven month wait - you're already in the system, so you are likely to be able to move your appointment a couple of weeks on. Again, judges are wise to people asking for hearings to be adjourned in order to allow them additional time to pay off the arrears and may take a dim view of this, particularly where a solicitor has been instructed and can attend in your place.

 

Your solicitor is best placed to advise you, given that he/she has all the information to hand. I think the above should make you aware of any potential pitfalls.

[SortMeOut]

Lea, thank you for your reply. My reason for posting here despite having a solicitor acting for me is that I did not 100% "buy" my solicitor's claim that the hearing will definitely be adjourned. I have spoken to him about my concerns and he has actually ASSURED me that I have nothing to worry about. Clearly if a Possession Order were to be granted at the hearing date I would only have about 2 weeks to move out and find a new place to live. I expressed this concern to my solicitor and mentioned to him that I should begin looking for a new home. He assured me that the judge only has on average 5 minutes to deal with each Possession Hearing and that where there are complications like a disrepair counterclaim the judge will pretty much automatically adjourn the hearing.

 

To add a little more background, my landlord already knows about all the disrepair and has been warned that if he doesn't sort out the repairs we will claim against him, so this isn't something that's just going to be popping up out of nowhere at the hearing. Landlord has been ignoring all requests to make good on repairs for about 2 and a half years now.

 

The hearing is 8 weeks from now.

[SortMeOut]

 

The other thing that is very likely to happen in such cases is that the judge grants possession under the mandatory ground (ground 8 - more than 8 weeks arrears, or under the discretionary grounds 10 and 11) and adjourns the money claim to be heard with the counterclaim. The argument for this is often that if the disrepair in the property is so bad, then the tenant won't want to stay there anyway.

 

Just reading through your response again. Tiny bit confused here as there will be no mandatory ground at court hearing as my arrears will be down to 6 weeks. I've also been led to believe that since grounds 10 and 11 are discretionary grounds the Judge is not particularly likely to make a Possession Order on those grounds alone, and is more likely to make a suspended possession order if anything? Have I been misled on this as well??

[raydetinu]

I would defo speak to someone at Shelter, they give very good advice and can possibly attend any hearing with you.

plenty of time to sort out.

What ever you do not miss the hearing, or get the date moved.

Judge should not grant possession if you are or in process of paying back arrears.

see here for advise on repairs-

http://england.shelter.org.uk/__data/assets/pdf_file/0019/23392/Shelter_Guide_Getting_Repairs_Done_Nov_2012.pdf

unfortunately it would not stop LL issuing a Section 21 notice subsequently if he wants you out, but would take longer.

good luck.

[SortMeOut]

Thanks for your reply Ray. I have hired a solicitor but as I stated above I am not sure he is taking the right approach. I will definitely go to the hearing. The solicitor claims to have experience of the local court where the hearing is being held and he is adamant that the judges tend to take the tenant's side in many cases and are very reluctant to give outright possession on discretionary grounds.

 

You are right, the LL could issue a Section 21 notice if he really wants me out. He hasn't issued one as of yet even though I'm only in a periodic tenancy.

[mariner51]

One way of tipping the verdict in your favour is to ensure rent owing is less than 2 months by date of hearng, thus removing the mandatory g8. Take a copy of payment record to Court.

 

Judge could still grant repo order on discretionary g 10 or 11 for persistent late payments and may wonder why these payments were late/missed when you have subs been able to reduce the arrears?

Most repo orders are stayed for 14 days and I would expect Judge to grant a min 28 days even if he issues a repo order.

[SortMeOut]

Hi Mariner, if the judges usually stay most Possession Orders for 14 days then what makes you say "I would expect Judge to grant a min 28 days even if he issues a repo order"?

[Lea_HTH]

To accurately answer your question, whilst grounds 10 and 11 are discretionary, the judge will also take into account any financial difficulty your lack of paying rent for 12 weeks has had on the LL. I would expect the LL to state he/she has had extreme financial difficulty brought about by your lack of meeting your obligations, and for him/her to ask the judge, despite the arrears being reduced to below ground 8 levels, to grant an outright possession order anyway.

 

Judges are not reluctant to give possession of privately rented properties back to the LLs. I have no idea where people get that idea from. If the facts show that the tenant is likely to continue with arrears and only acted because they were served court papers, then on balance with the LLs needs a decision will be made as to whether or not it is proportionate and reasonable to award possession. There is a strong likelihood that if you have substantially reduced the arrears and have a viable payment plan to clear the remainder, that a judge will find in your favour. The judge may, in such circumstances, award the LL a suspended possession order instead. This means if you miss one payment towards the arrears, or further payments of rent, the LL can proceed as if he had a PO (see below).

 

If possession is granted, even on a mandatory ground, the usual point is to give a 14 day order, which means that until 14 days from the date of the hearing have passed, the LL cannot execute the warrant. It is only after the 14 days are up that the LL applies for execution and the bailiffs then send out a notice of eviction to you, which could give you a further seven days (minimum) or could, depending on just how busy your local bailiffs are, give you several weeks more before you have to move out. If you have factors that mean you require more than the standard 14 days (these have to be exceptional hardship factors and are not necessarily easy to prove), then the PO could be for more than 14 days, up to a maximum of 42.

 

Possession Orders are only 'stayed' once a notice of eviction has been issued and the tenant makes an application for such a stay. Possession Orders can be 'suspended' - which I refer to above.

 

My answer re ground 8 above which you query is based on the possibility that on the date of the hearing you may still have ground 8 level arrears - if you haven't, then of course the judge will not consider ground 8 as on the day of the hearing there will be no basis for it.

[Lea_HTH]

One other thing - you state on the date of the hearing you will have reduced the arrears to around 6 weeks. Is the hearing near a rental period? That is, will you have also paid any rent due by the date of the hearing? If rent is due just before the hearing, or on the day of the hearing and has not been paid, then that too will be included as rent owing and will make out the ground 8 if, for example, your rent is due monthly.

[SortMeOut]

A family member has kindly offered to lend me the money to clear the arrears in full. So as of two days ago I have no rent arrears whatsoever. I will obviously continue paying my monthly rent as usual. On the hearing date I will therefore be completely up to date with the rent. How does that affect my case?

[SortMeOut]

I've received a Possession Claim and a hearing date. My landlord served a Section 8 notice on me using grounds 8, 10 and 11. At the time he served the notice I was more than 8 weeks in arrears. However as of this week I am not in any arrears at all and completely up to date with my rent. The court hearing is in about 8 weeks.

 

I've just gone through the paperwork from the court and in the landlord's claim he is saying that he has served me the S.8 notice (which indeed he has) but he is also claiming that a Section 21 notice has expired and that he wants Possession on the basis that I've "ignored" an expired Section 21 notice.

 

I have lived in the property for 6 years. 3 years on AST tenancies that were renewed each year and the past 3 years on a periodic tenancy.

 

I have not received any Section 21 notice.

 

Can a landlord actually bring single proceedings on the grounds of both Section 21 AND Section 8? I thought they would need to make two separate court applications. I also thought they would actually need to serve a Section 21 if they are going to rely on that.

[citizenB]

http://www.consumeractiongroup.co.uk/forum/showthread.php?392989-Can-a-landlord-use-both-S21-and-S8-in-one-single-Possession-hearing

 

Sortmeout, is the thread above where you are asking if a landlord can use both s21 and s8 for one possession hearing, anything to do with this thread ?

 

If so, it might be best if they are merged so people have all the information in one thread !

[Lea_HTH]

A family member has kindly offered to lend me the money to clear the arrears in full. So as of two days ago I have no rent arrears whatsoever. I will obviously continue paying my monthly rent as usual. On the hearing date I will therefore be completely up to date with the rent. How does that affect my case?

 

If there are no arrears at all, a court will not award possession. However, that does not mean that the LL cannot continue with the claim and ask for his costs as you paid up because of the court proceedings being issued against you. Most sensible LL's would just withdraw the case at this point, and if they really wanted you out, would simply serve a s21 notice.

 

In your other thread (there really isn't any need to keep posting new threads) you state that the LL is also relying on a s21, but state you have not received one. Are you sure? It could have been served alongside your last tenancy agreement which you state you signed three years ago (now on a periodic). s21 notices have no expiry date (unlike a s8) - they are ended only by signing a new tenancy agreement. So is it possible you received it and have merely forgotten as it could have been three years ago?

 

It is perfectly acceptable to the court to plead alternatives - e.g. a s8 on relevant grounds and in the alternative a s21.

 

Did you pay a deposit and is it protected?

 

Can you scan in the particulars of claim and the claim form, redacting any personal information and post them to the thread?

[citizenB]

Please use the following instructions if you are going to post up documents ..

 

Dx100 – Instructions on uploading pdfs

scan the requiredletters/agreements/sheets

as a picture file

remove all pers info inc barcodes etc using paint

but leave all figures and dates.

goto one of the many free online pdf converter websites

convert the image to pdf format.

or ir you have PDF as an installed printer drive use that

open a new msg box here

hit go advanced below the msg box

hit manage attachments below that box

hit the add files button on the top right

hit select files, navigate to your file on your pc

hit upload files

NB:you can set where it goes in the post by hitting insert inline.

the hit reply button

 

[heather]

He does not know what he is doing, AST only section 21, Assured tenancies usually housing associations mandatory ground 8, plus you have paid the arrears so novgrounds, but AST insecure tenancies landlord can evict after 6 months for anything maybe wrong?

[mariner51]

Heather, could you explain your reply in plain english please?

 

s8 & s21 can be served at same time, often suggested by Forum, but not have Court hearings running concurrently.

s21 has no relevence to s8 hearing grounds. It is poss s21 was included as part of last AST on renewal/extension, if previous deposit was carried over. This would still be valid for subs SPT AFAIK.

[stu007]

Hi SortMeOut

 

I have merged your two threads on the same subject as its better to stick to one thread and easier for those trying to give you advice.

[heather]

He does not know what he is doing, AST only section 21, Assured tenancies usually housing associations mandatory ground 8, plus you have paid the arrears so novgrounds, but AST insecure tenancies landlord can evict after 6 months for anything maybe wrong?

 

Hi he I meant your landlord, give Shelter a call as this is quite simple for advice .

[Lea_HTH]

OP - some of the advice in this thread is wrong. My advice in post 17 is correct.

 

Your LL appears to be doing things correctly and is using a solicitor. On the day of your hearing, or before if you can, I'd strongly suggest you see if the court has duty advisers so that you can get some assitance on the day of the hearing with regards to representation.