“Don’t Shoot The Messenger!” Harassment vs Chasing Overdue Rents

by Property118.com News Team

10:04 AM, 19th September 2011
About 8 years ago

“Don’t Shoot The Messenger!” Harassment vs Chasing Overdue Rents

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“Don’t Shoot The Messenger!” Harassment vs Chasing Overdue Rents

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.

My landlord keeps getting at me about my rent.

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.

And now to housing law

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!!!!!



Comments

8:48 AM, 22nd September 2011
About 8 years ago

If my wife works 65 hours to make up what a tenant steals from me while i provide low cost housing at little above what a mortgage would cost and without the 30k deposit and you can sleep at night...........

9:59 AM, 22nd September 2011
About 8 years ago

So is the letters that you send to the landlord not considered harrassment?

I have a tennent who refuses to return any calls ( Not one call), I have been unable to get hold of him for months, if he had returned my calls, i would have needed to make one call. These tennents know the game and use the system to their advantage, to prolongue their stay

If one of these tennents with money problems stole some food from a shop they would be arrested, the shop owner would not be arrested for asking for payment or calling the the police when they failed to pay.....Perhaps if rent was considered in the same way and the police could be called to sort, then the would be no need for numerous calls

Have you ever considered telling the tennent to just "PAY THE OUTSTANDING RENT", "RETURN THE CALL", "EXPLAIN THE SITUATION" or "MOVE OUT" if they cant afford it.

There is always housing benefit, if they cannot afford the accomodation they are in

11:13 AM, 22nd September 2011
About 8 years ago

I always make sure , my tenant have 110% referances from previous landlords before I rent to them , as well I take 2 months deposit , my rate of failure is 10:1.

Ben Reeve-Lewis

11:27 AM, 22nd September 2011
About 8 years ago

Guys the title of the article is 'Dont shoot the messenger' I am just telling you what the law on this says and even how to avoid falling foul of it, and I said in the article "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."

I sense your frustration and understand your anger but the law is what it is and I dont think I could have made my position and opinions clearer. But to answer a couple of points
@Billy , no, the letters I am forced to send out arent considered harassment, if a tenant comes in to report something to me I am bound by law to let the landlord know what is being said about them and invite their response. I do the same if the landlord comes in with complaints about the tenants.
And yes someone stealing would be arrested but the Police would still have to follow due legal process to get a conviction.
And also I regularly bang heads of tenants, metaphorically speaking. I tell them that if they lose their home because they dont pay their rent they not only ruin their references for getting another property but if they come down to our office for homelessness assistance we will probably refuse because they have made themselves intentionaly homeless.

@Steve, if your tenant owes you money you should evict them. Nobody would expect you to let the tenant stay there for nothing

12:57 PM, 22nd September 2011
About 8 years ago

Its worth pinning this article up in the office as a reminder ! I have had a police visit because I asked a tenant for rent not paid and they (two came round) recommended strongly to me not to visit my house or speak to the two occupants again ! One occupant was staying as a non paying friend and was a housing officer from the local authority. I find it best to issue Notice of Intention to Apply for Possession and smile as I give it to the tenant on very good terms, and say, oh its only a precaution just incase you dont make the promised payments. Two weeks later get down to the County Court and issue the summons . In my experience a bad payer never becomes a good payer. So what you waiting for ?

Ben Reeve-Lewis

13:51 PM, 22nd September 2011
About 8 years ago

@Abbass, sorry mate you lost me with your statistics there. Do you mean comprehensive referencing and 2 months deposit work for you or the other way around?

@Mike Absolutely right. Landlords dont rent for the good of their health, if your tenant owes you money, oik 'em out. Just as long as it is done lawfully I never have a problem with that. tenants need to take responibility for themselves and understand that there are knock on effects for landlords when they dont pay. especially small buy to let ones.

The way I look at it is any form of investment has its dangers and annoyances. If you start a dairy farm there are interminable and pointless european regulations, endless forms to fill in and the danger that your herd might develop foot and mouth and wipe you out.

If you buy a lorry and set yourself up as an independant haulier you have your tacograph register to maintain, have to risk going over your time to keep a client happy, and sometimes your lorry breaks down or your client doesnt pay on time so you cant meet your fuel bill for the next trip.

From 2001 to 2009 I was a self employed trainer of housing law but my problem was the interminable time it took councils and housing associations to pay me and when cuts were in the air the training budget is the first to go. It just goes with the territory.

As a landlord you are subjected to a range of laws that you might think are crap and obstructive and you run the risk of a nightmare tenant costing you a fortune but in all cases it is what it is.

If a person hates it that much get out of the game and stick your money somewhere else. Or PSL your property and take the weight off your shoulders. Many Councils are crying out for PSLs. Admittedly at slightly less than the market rent but if the tenants doesnt pay, the council still pay you and if they smash the place to bits the council repair it.

The point of my article, lest anyone else, Mike aside, misunderstand my motives here is, speaking as the prosecuting officer for the local authority in these matters, pay attention to the danger I have highlighted above and in your dealings with your recalcitrant tenant make sure you cover your back in terms of the word 'Calculated'.

I'm trying to help you out here guys

14:27 PM, 22nd September 2011
About 8 years ago

I did an eviction in 2007 my first in 18 years. It cost me more money and recovered nothing. The missing hb spent on winscreen tv and pissed away in fosters. The changes to LHA caused this, the 8 week arrears period is too long and why pay it to the tenant when its all due to the landlord. As Billy stated the tenant may as well have come to my home and stolen from me. Who ended up the only one in court me the victim! We need better protection and a faster eviction route.

14:53 PM, 22nd September 2011
About 8 years ago

Ben

In the past I have just changed the locks, Its amazing how quickly the tennent then calls you should they not be able to get into the property!. And at the very least you have their property as collateral on the debt. Also instead of waiting months to get the tennent out, you have the property back to let out straight away, thus saving further potential losses. Most tennents in this situation do not complain, they just realise they have been "Out played", bet for their stuff back and come uip with a payment plan to sort out the arrears

Clearly I take the lack of responce from my letters and communications as a sign theat they have abandoned the property.

Obviously I do risk a letter from your goodself......but what is good for the goose is good for the gander, and I will just ignore the letters, fail to return calls, and instruct someone to contact you about harrasing me.

I am not here critising you....Im critisiing the law, as it does protect the seller more in every other form of a trade. If a company are not paid by the supermarket they are supplying, they can stop delivery immediatly until the payments are made, they do not have to apply to a court for permission to stop supplying!

These bad tennents will spoil it for everyone, as rents will go up, to compensate for the losses or for the time and effort required to check out each potential tennent. It doesnt help when people just send out letters to assist the tennent, without challenging the situatation, and telling the tennent to face up to their problem., when clearly the issue is that the tennent should be man enough to return a simple call, and tell the landlord what the problem is

This kind of molly coddling is leading more people to realise the benefits ofbeing a bone idle, lazy dole scrounger, and this will not do anyone in the country anygood

Ben Reeve-Lewis

14:56 PM, 22nd September 2011
About 8 years ago

Yes Steve I agree. Everyone in housing that I know of thinks the direct payment system is the daftest scheme the government ever came up with. Tenants hate it and landlords hate it. Nobody wants it but the government wont back off. Rent arrears have arisen since they brought it in and now they are building it into the mooted universal credit system so that council and housing asociation tenants will be getting direct payments too, so arrears will go up again, along with homelessness applications as a result.

I also agree that the length of time it takes to evict is ridiculous too, and closing down loads of county courts across the country hasnt helped either. Having said that, if you only had to take action against a tenant once in 18 years I would say you are dead lucky, as annoying as that one tenant was. Dont stress yourself out tarring them all with the same brush, sounds like you have had a result overall

Ben Reeve-Lewis

15:20 PM, 22nd September 2011
About 8 years ago

Haha, I love your honesty but Billy, Billy, Billy. Mate be very careful with that approach. Whether you agree with a law or not you cant deny that a law exists and if you change the locks on a tenant you are committing a criminal offence and there is no legal justification for changing locks without a court order.

Your supermarket examply is totally misplaced as well. there are different laws with different procedures for all sorts of things. If you let a premises as business tenancy and the tenant owes you money then the landlrod can lock them out until they pay up but not in residential tenancies. That is a massive no-no.

You may have gotten away with doing it in the past but be aware that both the government and Shelter are fronting massive campaigns to lean on councils to prosecute these kinds of things.

When deciding to prosecute myself I take into account the ill advised actions of a frustrated and legally ignorant landlrod and will usually get people around the table to resolve it but a willful "Sod it " approach to it will result in even reasonable old me dusting off Police and Criminal Evidence Act manual

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