10:04 AM, 19th September 2011, About 11 years ago 30
When a tenant has beef with their landlord, I’m the guy they go to. My job is to either negotiate or prosecute, depending on the circumstances. This occasional and random series aims to let landlords know the common complaints that are made about them, the laws that cover them and how to deal with it.
Rent arrears; the big bug bear of the lettings world. Your tenant owes you £3,000. They started by telling you there was a death in the family, or similar tragedy, which means they need a payment break.
You, being a reasonable soul, come to some sort of arrangement that will help them defer rent and pick up the slack later on. Trouble is, when it comes time to pay you can’t get hold of them. They don’t answer the phone and are never in when you call.
So you send a few text messages, an e-mail or 2, maybe even a visit to prompt a discussion. The next thing you know you have got a snotty letter from someone like me, or the CAB or Shelter, telling you that you are harassing your tenant.
What’s going on?????
Let me get my bit in first before I give you the bad news.
If someone owed me £3,000 I would be mightily annoyed, especially if I was a small landlord without the cash flow to spread around that is available to a portfolio landlord and pay the mortgage on the property in question. Buy to let landlords are often wholly dependent on the rent on a specific property to pay the mortgage. If the tenant doesn’t pay the rent, both landlord and tenant go down the pan.
What’s wrong with chasing up money that you are owed? Nothing at all………in the real world.
You have to first separate real life from housing legislation. The law has grown in response to real life situations but there are always 2 sides to any story, and one side will always feel put out by the restrictions of each piece of legislation.
Landlords always tell me the law is biased towards tenants and tenants tell me the law is all for the landlord.
The landlords main enemy in chasing up rent arrears is a thing called Section 40 of the Administration of Justices Act 1970, which states:-
“a person commits an offence if, with the object of coercing another person to pay money claimed from the other as a debt due under contract, he or she:
Harasses the other with demands for payment which by their frequency, or the manner or occasion of their making, are calculated to subject him or his family or household to alarm, distress or humiliation;”
I have deleted a few words and underlined others for the sake of clarity to make this understandable.
So to cut to the chase what the Admin of Justices Act is saying is that you can commit a criminal offence if the way that you chase up the money that is owed to you is ‘calculated’ to cause alarm or distress.
Pay attention to the words, people. Law is all about words.
Anyone seeking to take legal action against you for sending letters, emails, texts or personal visits must be able to also prove that the motivation behind your actions are ‘Calculated’, to cause alarm, distress etc.
Proving motivation is extraordinarily difficult. I wish that Shelter’s admittedly well-meaning but flawed rogue landlord campaign would acknowledge these semantic problems. When the Protection from Eviction Act 1977 was drafted the original definition of harassment had the words “With the intent to cause” inserted in there. The result was that nobody ever got prosecuted for harassment because of the difficulty in proving what was going on in a person’s mind. They substituted the word ‘Intent’ with ‘Likely’, which on paper at least, made it easier to bring a charge of harassment. People in my position have only to consider if a landlord’s action are ‘Likely’ to cause the tenant to leave. Legally this is a world of difference.
Many solicitors or advisers will jump on a landlord for making persistent or excessive demands for missing rent, citing the Admin of Justices Act as relevant legislation, but the key point is a landlord’s ’Intention’. Is what you are doing ‘Calculated’ to cause distress or simply aimed at recovering monies owed?
You have to step aside from what you think and look at it from how it appears to the other person. Good intentions are not enough.
I can’t tell you how to word your letters to your delinquent tenant but bear in mind it is a fine linguistic line between asking for what’s yours and a type of harassment and cover your back. Get it wrong and you get me coming round and it’s not a pretty sight, especially since the girls in my office told me this week that I have big ears. And not metaphorical ones neither!!!!!