Section 21 Landlord wants me to leave

[The Legal Eagle]

Hello Dave at Bristol

 

My apologies for the delay in following up on my earlier message. I will try to keep this as brief as I can and try to look at the issues raised in half a dozen or so areas, these being and in this order

 

The Landlord

The Agent

The Deposit

The Property

The Housing Department

The Court and legal processes

 

 

The Landlord

 

Someone has pointed out it is his house after all, but what are his plans once these repairs have been carried out. Is he re-letting - if so then if you have been a good a tenant as you sound frankly he would be mad not to re-install you in the property. Mind if he intended to do so he could have served a different notice with repairs as the reason for needing possession. Is he selling it afterwards?

 

The Agent

 

Always remember their contractual Duty of Care is to the Landlord. They have a Duty of Responsibility to you, mainly reflected in the need for the property "to be safe and fit for the purpose" but their first lyalty always must be to the landlord.

 

It is quite normal to take rental payments in advance in cases where for whatever reason the personal covenant is weak - in your case because you are a HB tenant and therefore there will be delays and all sorts of issues including possible clawback (sometimnes for no other reason that the HB office made a mistake) for up to 6 years after payment.

 

Bear inmind too that from April 2008 all HB offices will be paying the benefit direct to the tenant in all but the most exceptional of cases so there will be an even greater exodus of private landlords unwilling to rent to HB tenants.

 

The Deposit

 

Is your rent/HB allowance paid direct to the agent (probably) the Landlord (possibly) or yourself (unlikely). If not the last then the only thing you can do is immediately instruct the HB office to make payments direct to you and that you will pay the agent. There is absolutely nothing the Landlord can do about this (time to short) and no way the HB office cannot comply (you are a good tenant). When the payment comes into you then if you suspect any foul play at the end of the tenancy you can tell them to keep the deposit as the last month's rent.

 

This assumes the property will be in good order when you leave.

 

Is there an inventory and has it been updated over your 10 years? Landlord may be on very weak ground if not.

 

The Property

 

I am really interested in these repairs that are needed - I have not seen you criticise the property particularly so what is it that needs to be done, cosmetic or essential repairs?

 

Depending on whether you want to play hard ball you could have a really makjor card to play here. In simple terms there is no defence against a mandatory possession action like this one other than finding some legal flaw in the paperwork - errors in agreement or notice etc.

 

Next best option is a counterclaim by you against the Landlord for breach of his obligations under ss11 - 16 of The Landlord and Tenant Act 1985 as amended bu s116 of the Housing Act 1988. If in Court you can show that the Landlord has fallen down in this area you will be able to mount a claim against the Landlord for return of rent - because you haven't had what you contracted and paid for, a safe property will all amenities and kept in good repair.

 

Mention the words "Environmental Health Department " and "referring the property condition to them" and see how high the Landlord and agent jump (if they don't then they don't know what they are doing). As a Landlord the EHO is the last person on earth you want round a property as if they start demanding repairs it will be a long list and if the Landlord doesn't do them then the Council will slap an Enforcement Order on him and if he still doesn't do them the Council will and they don't come cheap!!

 

And of course the property cannot be re-let until the repairs are done and it may not even be possible to sell it. As I say depends how much hard ball you want to play. You could use this as leverage to delay the Landlord's proceedings though while he gives you more time to vacate satisfactorily instead of you involving the EHO.

 

The Housing Department

 

I've seen the couple of references to Yvette Cooper and several years ago following the annual change in the (then) DSS Regulations the ODPM (now DCLG) wrote to all Local Authorities telling them not to delay re-housing tenants in mandatory cases. However the LAs ignore this for a whole host of reasons and excuses that I won't bore you with but suffice to say I have exchanged letters with several LAs on this subject telling them not to do it again (too late in a case where they've already told the tenant to stay put, which legally he is entitled to do until the Order is granted) and they write back worming their way round it.

 

Statutory Homeless is essential for you to achieve, some LAs will pick a tenant up quite early on in the process, others will delay almost to the Court hearing Date, others until the Order is actually granted. To be Statutory Homeless in theory you have to wait for thre bailiff to walk up the path and then walk out, but in reality few councils push it that far.

 

Given your circumstances I am surprised they are not trying to help now. The point you made about having given them ample warning is a powerful one, keep doing that and make sure you get something in front of the person who matters, the one who'll get it in the neck from Councillors if there is bad publicity i.e. the Housing Manager. Get his name and send a letter inside an envelope inside an envelope etc.

 

When you ring insist on speaking to him because it is a personal matter and then when the minion on the other end says what is it about you can have the pleasure of quoting Data Protection at them for a change!!

 

Court and legal proceedings

 

There will be no costs if you leave before the Court hearing as none will have been awarded by the Court. Depending how wel his agreement is worded the Landlord may be able to pursue you privately for them, but I'd advise any Landlord of ours not to bother and to get on with the rest of his life.

 

You can only defeat a s21 action on legal grounds, you can have been the greatest tenant in the world but "I want" is sufficient for a s21 Landlord. If he is legally correct the Judge must grant the Order. But you can play your counterclaim for repairs card.

 

The Order is not a CCJ but the Money Order for costs is - clear it within 28 days and it won't be registered against you.

 

 

Hope this helps, I am away a week now but will pick up on the string again on my return.

[The Legal Eagle]

Hello Dave at Bristol

 

OK let's narrow downnow to a few specifics. Beyond the provisions and qulifying issues on statutory homeless I'm not an expert on the provision of social housing. Nor do I know anything about child welfare, splitting you up and so on. But I am expert on Landlord and Trenant Law and would now advise you as follows.

 

ENVIRONMENTAL HEALTH/PROPERTY CONDITION

 

You couldn't be more wrong, if it is works over which they have enforcement powere believe me the Council could easily force this Landlord to do the works, and if he didn't they would and would charge him. And if he didn't pay they'd prosecute and/or tajke a charge over the property to ensure they got their money back sooner or later. I've seen this several times and once they sink their teeth in they don't let go.

 

I can only assume that the works required were not significant enough for the Copuncil to be able to use formal powers.

 

rent in advance and deposit

 

All rents are usually paid in advance, but there should beno issue linking this to statutory or intentional homelessness as you are not being evicted for arrears.

 

If it was me in the month before I knew I was vacating I would tell the agent to use the deposit (once they chased you for the rent) and in the month of actual departure pay the number of odd days on a daily calculated rent.

 

References

 

Very good idea - asking the agent for confirmation of your rent record and treatment of the property will make them think you are getting organised to leave when they want you to. Also better to get it before you start playing with the rent payment timings!!!

 

Costs

 

I noticed a recent reference to the Landlord not being able to get costs against you. He most certainly will, his fixed courtr fees and any bailiff fees (around £250 in total) plus a small amount towards any solicitors costs will definitely be awarded and that is what will lead to the CCJ unless you clear it before it is registered against you.

 

Whether the Landlord can find you or whether he can actually get the money out of you is a different matter, but he will certainly get them awarded.

 

Court proceedings

 

If it does go as far as Court make sure you attend.

 

If it is what is called an Accelerated Possession Procedure (APP) which is all done by post make sure you complete the form sent to you by the Court and return it within the 14 days you are alowed.

 

Interested in the comment that youcan recoup costs against the Council if they have caused you to incur them when they could have avoided it by re-housing you earlier. Personally I'd be very surprised given your circumstances if they didn't pick you up as soon as you show them either the APP form or the Court notice of the hearing date if it goes that way (Traditional Procedure).

[The Legal Eagle]

Just a couple of points onlegalcosts and Unfair Contract Terms.

 

Mr Shed is almost right on legal costs but the fixed Court fees are always recoverable nomatter what type of action it is - if you win!! Where it is restricted is the legal costs interms of solicitors etc where it will usually be restricted by the Judge in the County Court and nothing in the Civil Court (Small Claims Court).

 

The comments on Unfair Contract Terms and the OFT and referring matters to the local Trading Standards are not wuite correct either. Yes it is possible that little will come of it and I would only suggest it if you were upset and peeved either with the Landlord, or agent, or both. If you are not then clearly you don't.

 

But remember the only way you can defeat a mandatory section 21 possession action is on legal grounds and if the tenancy agreement is poorly constructed and in particular if there are Unfair Terms in them it could go a long way further than just delay and inconvenience for the Landlord. If the agreement is found badly wanting you could end up with clauses in conflict with each other and a key clause being struck out - leaving the Landlord unable to enforce. This is unlikely but it is a possibility.

 

The OFT have just come back into my life 10 days ago and this is 17 months after their first objection I am dealing with. Believe me, if you want to make someone's life miserable just refer their agreement, or their terms and conditions (terms of business) for tenants to the OFT. They make the Revenue look like pussy cats!!

 

Incidentally good point someone made, can't these essential works be done around you?

 

On Housing Benefit I agree with the comment, there are some very good HB tenants. Unfortunately life is going to become very much more difficult for them over the next 12 months as from April 2008 all HB rent payments will be made to the claimant. This will lead an awful lot of Landlords who have the choice of whether or not to accept an HB tenant and I guarantee you a large number of HB tenants will be receiving terminationnotices by early 2008 so the Landlord can install a fresh tenant.

 

It's not the person usually that is the problem - it is the system. Delays on getting payments direct, constanr reassessments because of change in circumstances and then the risk of clawback by the HB office keep many Landlords out of the HB market.

 

In 2008 he inability to have the money paid to them direct when it does eventually come through will be the final straw for many others.