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10:04 AM, 19th September 2011, About 13 years ago 30
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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!!!!!
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9:55 AM, 23rd September 2011, About 13 years ago
Ben, I fail to see how the supermarket analogy is any different. Most people would agree that food is more important that shelter to sustain life, yet the supermarkets are supported from theft through the law, and police would come to an incidence of non payment.
I said in my note, I support the law where it is for true cases of harrasment, and certainly no one should be carryout acts of violance, and should people be evicted when their husbands are away fighting for the country, absoloutly not.
....but then equally should landlord be guilty of a criminal offence, because the lazy good for nothing tennent, has buried his/her head in the sand, refuses to anser the door or return the calls...absoloutluy not.... As per usual the law has been set up for the right reasons, but has gone too far to overcompensate
Looking forward to your next article!
Ben Reeve-Lewis
10:07 AM, 23rd September 2011, About 13 years ago
Who placed the women in there Sharon?
If property is provided by homelessness units then it must be 'Suitable' and one characteristic of that is that it must be affordable. The way they calculate this is by looking at the local LHA rate for the property £1,200 may sound a lot but if LHA covers it then it is affordable and it will be the women's money management skills that are at fault, urged on by the hated housing benefit direct payments.
A social tenancy would have been half that but now we have another wonderful new initiative called 'Affordable Rents' which is the system whereby council's and housng associations can raise their rent to 80% of PRS rate in return for extra handouts from government, so 'Affordable Rents' arent going to be so 'Affordable' for much longer.
Only a politican could come up with a scheme to raise a person's rent dramatically and call it 'Affordable' haha
Can I explain rent arrears? No, there are many causes of it, some social, some personal, some government driven but as I have kept saying throughout this thread until I have grown hoarse (metaphorically speaking) Rent arrears are one of the attendant risks of the lettings business and always have been. In an ideal world every tenant would pay their rent on time and every landlord would maintain safe and clean properties. We dont live in an ideal world, it is what it is.
When I was a landlord I had a total of 3 tenants through the flat. 1 left witholding £2,000 rent because she said the mould on the wall (condensation caused by her not opening the windows) had damaged her clothes, the second one paid on time but left the place in a bit of a state when she went and the 3rd tenant went on to become a life long close friend. Its an assorted bag.
Everyday I face so much vitriol from landlords who seem to despise tenants that I think why do this to yourself? Surely there are easier and less stressful ways to make a living.
12:15 PM, 23rd September 2011, About 13 years ago
Hi Ben,
Many thanks for the reply. I don't know for sure who placed them here but my concern stems from two angles: the fact that the landord is crap and puts both tenants and the block at ris and secondly, if tenants get into arrears for whatever reason, the service charges don't get paid and my job gets even more difficult!
The tenants have also told me that at their request, LHA is paid directly to the landlord but the payments office are not going to meet his rent demands, which is where I really get confused.
Interesting what you note about 'affordable rents' and I totally agree that only a politician could come up with something like this. But as we all know, politicians don't inhabit the same world as the majority of the rest of us!
I totally get what you say about the letter of the law though!
Ben Reeve-Lewis
13:26 PM, 23rd September 2011, About 13 years ago
Replying to this is becoming a full time job in itself LOL
@Billy you can take the view that morally rent arrears are theft but legally they arent, it is a breach of a contractual arrangement between 2 parties. No amount of complaining will change that fact and so the law and the procedures that surround it are entirely different animals.
When I was a full time trainer I did 3 months of work totalling £12,000 for a guy who went bankrupt which subsequently caused me to go the same way but that wasnt theft, it was a business arrangement that went down the pan, same with the legal relationship between landlord and tenant. As annoyed as I was I dont consider the guy to have stolen from me.
@Sharon I think I understand you query. The daftness of the current scheme is that HB payments go direct to the tenant, whether they want it or not UNLESS they are in 8 weeks of arrears, then payments start going to the landlord or the person is considered vulnerable in some way, which is quite loosely defined. They have to make a special case to be considered (You cant just say they are vulnerable even if they ask, which they do and yes I have tried to change their category, it doesnt work)
With the impending Univerrsal Credit mooted by the government these direct payments are being extended to council and housing assoication tenants too. Watch the arrears go through the roof now!!!!!
And Billy????? It still wont be theft 🙂
the thing that for me beggars belief is that government keep wittering on about giving tenants choice but what they have done is take choice away. Under the previous system the tenant had the choice about whether HB payments went to the landlord or the tenant. As with 'Affordable rents' only a plolitician could take someone's choice away and then re-label it choice. What is amazing to isnt that they come up with these things in the first place but the fact that we dont throw rocks at them
13:42 PM, 23rd September 2011, About 13 years ago
Thanks again Ben. This'll teach you not to write such provocative pieces!
;0
11:13 AM, 1st January 2012, About 12 years ago
I know this is an old post, but, as it has been re-advertised.....
I had one agent who changed the locks when the tenant was in arrears and wasn't responding to communications, but left a notice on the door saying the the property was presumed abandoned, and that if the tenant needed access, they could contact the agent. This seemed sensible to me, but could this be construed as harassment?
Mary Latham
16:17 PM, 1st January 2012, About 12 years ago
JayEff This is known as an Abandonment Notice and they are very dangerous because they absolutely no legal status and WOULD NOT protect a landlord from prosecution. This is even more serious than harassment it is considered Illegal Eviction and carries very heavy financial penalities - upwards of £30k is common.
Suspected abandonment should be dealt with through the legal Possession process under either Section 21 or Section 8 of the Housing Act 1988 whichever applies. Its a royal pain but it is the only safe way to regain possession/access
19:50 PM, 1st January 2012, About 12 years ago
Yes I agree Mary.
To cite a practical example I had an eviction notice pending a month hence.
I had been advised by my tenants below that they had seen her and her assistants move stuff out of the flat.
As the flat was on the 1st floor I could not see into it well.
Nowhere to store ladders when you have a flat!!
The tenants below stated they had not heard annything in the following month and I monitored the flat throughout that period until eventually the eviction notice was enforced.
I was extremely tempted to put an abandonment notice and change the locks.
What would have happened if she had returned stating that she had been on a long holiday.
I would have to give her keys for the new locks whilst waiting for the eviction notice to be enforced.
As it turned out she didn't return.
Trashed the place
Stole items
The toilet was left continually flushing for over a month.
Glad it didn't cause a flood to the flat below which was mine as it would have cost the insurance company a lot of money and me possible loss of even more rent , but of course I would have been able to access the property due to a flooding emergency.
I am glad that there was no flood and that I did not enter the flat until eviction was served.
I cannot under any circumstances afford to have a crimainal record for wrongful eviction.
That stain would remain with me for the rest of my life.
So I agree with you wholeheartedly; frustrating though it is; you must allow the Section 8 or 21 process complete it's due process.
9:28 AM, 3rd January 2012, About 12 years ago
When we were renting the AST said we must tell the agent
if we were going away for more than 2 weeks. Would that cover this case, or is it unenforceable?
Mary Latham
12:16 PM, 3rd January 2012, About 12 years ago
If you are asking if this clause would enable a landlord to enter the property without the express permission of the tenant the answer is no. It is a fair clause to ensure that the landlord is aware that the property is going to be empty and for him to advice the tenant on turning off water etc., the landlord might drive by but he must not use "insurance" to gain access unless on a drive by he found water pouring down the road or a similar emergency - even then he should get an independant witness