Distress for Rent Act

Distress for Rent Act

10:25 AM, 11th August 2021, About 2 months ago 3

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There has been much discussion on this topic, with landlords finding that they are not successful in front of some County court judges. Of course, county court decisions are not binding, and it’s not unknown (although not desirable) to have different decisions.

We had a Possession order today (10th August) where the judge accepted the landlords claim for ‘Double rent’ under the Distress for Rent Act, awarding a possession order in 14 days and the amount of outstanding rent that included Double rent for the period after which the tenant had given notice (that had expired and he remained in the property)

Some crucial elements leading to a successful claim are that the landlord communicates back to the tenant upon receipt of their Notice to end the tenancy, that it is accepted and that the tenancy will end on x date in accordance with the tenant’s notice. (Any future monies paid to be accepted as Mesne profit)

There were already significant rent arrears and hints of a disrepair counterclaim that fortunately did not materialise (although the landlord had copious evidence of attending to the few matters that had arisen.)

We drafted a letter to the tenant setting out the provisions of the legislation and liability for Double-rent. Nevertheless, he did not vacate.

Shortly prior to the Review hearing, the tenant had visited Citizens Advice who raised a point from the Tenancy agreement that set out Notice of ending the tenancy to be given in ‘writing’ – whereas the tenant had SMS / WhatsApp’ed his termination ‘notice’

We had prepared a response for the court on this subject, but it does raise an interesting point.

We come across a range of tenancy agreements drafted by various letting agents or other organisations, and often I have some comment upon the drafting of the AST.

If we look at the NRLA’s latest AST ( Version 1.1u ) Para 7.0  mentions to end a periodic tenancy, ‘you must provide us with written notice’

Under para 9.0 Notices, the provision for notices to be accepted by email is addressed but, in our view given contemporary communication methods (WhatsApp, Telegram, Signal, Messenger  etc)

A tenancy agreement should include, “or any other electronic recordable form” (When did a landlord have a written letter from a tenant  ?  –  I can’t ever remember.)

As it happened, the Tenant did not appear or offer any defence.

On the subject of Tenancy agreements, my most serious concern on the AST described above, is the omission of a clause that allows the Landlord to increase the rent, no more often than 12-month intervals.

This is a crucial clause that was in previous NLA tenancy agreements. Providing the Tenancy agreement includes such a clause, the Tenant cannot dispute any future rent increase with the First Tier Tribunal, as it removes their jurisdiction to determine the rent.                    (Contour Homes v Rowen 2007)



Comments

by Ryan Batchelor

13:58 PM, 11th August 2021, About 2 months ago

Thanks for the post Chris and for spreading awareness of this, as I'm sure not many people know about it. This is welcome news for landlords! Applying 'distress for rent' is a powerful tool for helping to persuade them to leave more quickly, as the double rent really puts the pressure on. I agree with making it explicit in the tenancy agreement that notice can be served electronically. I've even gone so far as to list WhatsApp specifically in the agreement. Thanks, and keep up the good work!

by zhorik

10:01 AM, 14th August 2021, About a month ago

The legislation as drafted does not specifically mention what “in writing” constitutes and whether an email or text would suffice. It is obvious however that electronic communication is now used more and more in everyday life. Courts now not only allow but actively encourage service of documents by electronic means but there does not appear to be any reported case law dealing with the issue of whether electronic service of a Notice to Quit is valid.

In cases where documents have been served electronically this method of service does not appear to have been questioned by the courts. Referring to service of notice in writing at a tribunal case, His Honour Judge Hand QC said:
I include within the concept of written notice modern methods of communication such as the SMS text message, internet based so-called instant messaging and email. Here the email was used as a medium to convey an electronic version of the letter of dismissal, which was attached but, no doubt, any of these methods could be used to convey the notice itself.” Wang v University of Keele… UKEAT/0223/10/CEA
https://www.housingrights.org.uk/news/written-notice-quit-valid-if-served-email-or-text

by Mick Roberts

11:43 AM, 4th September 2021, About 3 weeks ago

I want u on my side Chris should I ever have to do possession. Your knowledge of the regs/courts/rules is astounding. I get lost as soon as u mention Reg.
Don't retire please.


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