Getting rid of an untidy and unhygienic HMO Tenant?

by Readers Question

10:36 AM, 11th August 2016
About 2 years ago

Getting rid of an untidy and unhygienic HMO Tenant?

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Getting rid of an untidy and unhygienic HMO Tenant?

We let a 3 bedroom flat as an HMO accommodating 3 tenants. For the most part this has worked very well with the odd hiccup, usually caused when one of the occupants fails to wash up and tidy up the kitchen after use or consistently leaves the bathroom in a mess. untidy

Up to now we have managed to persuade the culprit to seek other accommodation without the need to serve a formal notice to quit. However, our latest problem tenant, who has been spoken to a number of times about the need to consider the other tenants and clean up after himself, has reacted badly to our suggestion that he might be happier elsewhere. We do not expect our tenants to do any more than is necessary to ensure that the communal facilities and equipment provided are left as they would hope and expect to find them. His 6 month Assured Short Hold Tenancy has recently come to an end and has not been renewed, which I understand means that it automatically becomes a periodic tenancy.

This tenant has recently had practically sole occupancy of the flat pending one tenant moving out and another moving in, with the third tenant spending most of that period away from the accommodation. He obviously went away for the weekend and left the kitchen in a filthy state with every pot, pan, utensil and item of cutlery and crockery used and left dirty and piled into in the kitchen sink or on the work surface. The bathroom facilities were left in a similarly dirty, unusable state. Had the other tenant returned to the property before we discovered the mess, he could have been forgiven for make a complaint in the strongest terms. He has denied responsibility for the state in which we found the place even though he must obviously be the culprit. He immediately threatened to consult his solicitor about being asked to leave, which makes me think this may not be the first time he has been faced with this kind of situation..

My questions are these:

1. Could this kind of situation place us and the culprit in breach of the Management Of Houses In Multiple Occupation (England) Regulations 2006 & 2007, and if so would that be sufficient grounds to seek his eviction if he will not leave voluntarily?

2. Could his failure to leave the communal areas and facilities in a reasonable state be a contravention of his tenancy agreement anyway?
When we first decided to rent out the property as an HMO we tried to do everything right and had the tenancy agreement drawn up by a solicitor. We gave the tenants copies of the agreement, landlords contact details and details of the deposit insurance scheme we are using to safeguard their deposits. Though we have a gas safe certificate we did not actually give each tenant a copy of it and I have since read somewhere that we should have done this and failure to do so may cause the courts to kick out any application for eviction and they could award him compensation.

3. Is this the case and if so what do we need to do to recover the situation?

We realise that if we have slipped up we may not be able to pursue the eviction route for the time being and will have to live with the problem for the time being, but if we now correct the information situation and the tenant does not mend his ways how long must we wait before we could take action to get rid of him without risking a claim for compensation.

Many thanks

Cyril



Comments

Neil Patterson

10:41 AM, 11th August 2016
About 2 years ago

Hi Cyril,

I have an update on the new rules from the deregulation Act which will help with your question and comment below. This is from >> https://www.property118.com/what-does-the-deregulation-act-2015-mean-for-landlords/87201/

Deregulation act 2015 section 21

On 1 October 2015 further provisions in the Deregulation Act 2015 came into force to protect tenants against unfair eviction when they have raised a legitimate complaint about the condition of their home.

The legislation also requires landlords to provide all new tenants with information about their rights and responsibilities as tenants. This information includes such detail that a landlord cannot serve a Section 21 notice unless they have complied with certain legal responsibilities.

The government also introduced a new standard form that landlords must use when evicting a tenant under the ‘no fault’ (section 21) procedure. This makes it more straightforward for landlords to evict a tenant where it is legitimate to do so.

These provisions apply to all new assured shorthold tenancies that start on or after 1 October 2015. However, as of 1 October 2018 the provisions will apply to all ASTs in existence at that time.

1. Compliance with prescribed legal requirements

A Section 21 notice may not be given if the landlord is in breach of any legislation which relates to any of the below.

The condition of dwelling houses or their common parts
The health and safety of occupiers of dwelling-houses
The energy performance of dwelling-houses.

This means all landlords must provide tenants with an EPC and a Gas Safety Certificate before the tenancy begins. If at a later date the landlord wants to serve a Section 21 notice on a tenant, he will need to prove the tenant has been provided with these two documents. If they don’t do this then the landlord wont be able to use the section 21 notice.

2. Requirement of the landlord to provide Prescribed Information

At the start of each AST, landlords are now required to provide tenants with a copy of the Department for Communities and Local Government’s booklet entitled ‘How to rent: the checklist for renting in England’.

3. Prescribed form of Section 21 notices

The new Section 21 notice combines the two previous section 21 notices into a single use notice for both fixed-term and periodic tenancies. It‘s for use with new tenancies starting after 1st of October 2015 and all tenancies (regardless of when they started) from 1st October 2018.

4. Timing and Lifespan of a Section 21 Notice

From 1st October 2015, a landlord is now no longer able to serve a Section 21 notice within the first four months of the contractual term of the tenancy. This is to stop landlords and their agents serving notice at the start of a tenancy if they want to finish it at their convenience.

A Section 21 notice now also has a lifespan. Once a Section 21 notice has been given under a fixed term AST or a periodic AST, possession proceedings must be started within 6 months of the date the notice was given. If the landlord doesn’t do this then the possession notice is invalid and a new one will be needed.

Retaliatory eviction

The Deregulation Act 2015 contains provisions suspending the operation of section 21 in order to protect a tenant against retaliatory eviction.

Retaliatory Eviction occurs where a landlord takes steps to evict a tenant because the tenant has complained about the condition of the property, rather than carry out repairs.

The new process means that the tenant has to put in writing to the landlord his/her complaints about disrepair. The landlord has 14 days to respond to the tenant, setting out when they will access the property, look at the remedies and carry out repairs.

If the tenant isn’t satisfied and the landlord hasn’t carried out the repairs, the tenant can make a complaint to the local housing authority. Local councils have been given the power to serve an enforcement notice on the landlord, setting out “a reasonable timescale” for improvement works to be carried out. Landlords served with an Improvement Notice cannot issue a section 21 within six months of an enforcement notice being served.

Please also see our tenant eviction page >> https://www.property118.com/tenant-eviction-2/

Sean Graveney

11:32 AM, 11th August 2016
About 2 years ago

Out of interest, when you discovered the mess for what reason were you in the property whilst the tenant was away? If battle lines are being drawn then you don't want to give them any other cause for complaint.

Cyril Moseley

12:27 PM, 11th August 2016
About 2 years ago

Reply to the comment left by "Sean Graveney" at "11/08/2016 - 11:32":

Hi Sean, we were in the premises to give the recently vacated room a vacuum and dust prior to a new tenant moving in as it had been empty for over a week. We obviously wanted to check the kitchen and bathroom were clean and tidy and as the new tenant would expect to find them.
Cyril

Mandy Thomson

12:43 PM, 11th August 2016
About 2 years ago

If the tenant's AST dates from before 1 October 2015, the fact that the gas safe certificate wasn't presented to the tenant at the time will have no effect on your ability to serve section 21 (although it will of course if the AST dates from 1 October 2015 onwards).

The tenant is also likely to be in breach of the AST, as this will stipulate that tenants must maintain the property in the condition in which it was originally rented to them and will also contain a provision that the tenant doesn't cause a nuisance.

However, if you have to rely on breach of AST to evict (that is, if you can't serve section 21) this would be under section 8, ground 12, which is a discretionary ground and you would be strongly advised to seek legal representation.

Cyril Moseley

15:38 PM, 11th August 2016
About 2 years ago

Reply to the comment left by "Mandy Thomson" at "11/08/2016 - 12:43":

Hi Mandy, thank you for your view. The AST was issued after October 2015, so it is beginning to look as though we might have to start again by issuing the required information, including the booklet "How to rent" and a copy of the Gas Safety Certificate. I think I read somewhere that the requirement to issue a copy of the EPC does not apply in the case of HMOs, which this is. In any case we do not charge separately for utility costs as the rent is all inclusive and it is easier to manage the utility bills this way rather than trying to work out who has used what and what proportion of the various bills is owed by whom. If I have got that wrong perhaps someone will comment and put me right, as I want to get it spot on this time.
Cyril

Cyril Moseley

16:05 PM, 11th August 2016
About 2 years ago

Reply to the comment left by "Neil Patterson" at "11/08/2016 - 10:41":

Hi Neil,
Thank you for your very useful information and links. It is beginning to look as though we will have to start again by issuing the required information including the Booklet "How To Rent" (which I was unaware of until this problem cropped up) and a copy of the gas safety certificate. I think we got the rest right, but slipped up with these two items. I will include a copy of the EPC, although we do not charge separately for energy etc. costs and I believe I read somewhere on a UK.Gov site that this requirement does not apply to HMOs.
Cyril

Mandy Thomson

17:32 PM, 11th August 2016
About 2 years ago

Reply to the comment left by "Cyri Moseley" at "11/08/2016 - 15:38":

Hi Cyril

Thanks for that. It looks like you're right about the EPC for an HMO where the bills are inclusive, see this http://www.landlordsguild.com/prescribed-legal-requirements-before-serving-a-section-21-notice/ (see the first comment).

Colin McNulty

10:31 AM, 13th August 2016
About 2 years ago

Offer him £x hundred* to be gone by the end of next week (payment on returning of key, and signing of a Tenancy Surrender declaration, and room being left in a reasonable state). It's annoying to do, but a lot cheaper and faster and less stressful than court action.

* x = a number between 1 and 10 depending on where your property is, how much the rent is, and the type of tenant you have.

Cyril Moseley

12:30 PM, 13th August 2016
About 2 years ago

Hi Colin,
It might eventually come to that, but I think he is quite a high earner so he is unlikely to consider such an arrangement for peanuts. I am beginning to think that my best option is to give him all of the required documentation so that the next time he causes a problem I can serve a section 21 notice on him. I don't think he would want to be involved in court action so that might be sufficient to get rid of him. The weakness in our position at the moment is in not having originally given him a copy of the gas safety certificate and the booklet "How to rent". I will now do this and make sure every other "i" is dotted and "t" crossed. Not easy this Landlord game.

Cyril

Colin McNulty

14:53 PM, 13th August 2016
About 2 years ago

No indeed it's not Cyril. The RLA have a great tenancy checklist for new tenant sign ins which covers everything you need to do.

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