When to go to court ?

by Readers Question

10:31 AM, 23rd April 2014
About 6 years ago

When to go to court ?

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When to go to court ?

Dear Readers,

We issued our tenants a section 21 a year ago, but after some discussion decide they could stay (they were going to buy the house), we left the section 21 in place.

They have now separated and can no longer purchase, so we gave them a months notice to end on Friday, the day their rent would be due. Our tenant has told us she has no intention of moving out, so my question is, can I go to court on Friday to apply for possession or do I have to wait until Monday ?

The last thing I want is to start all over again as she is already going into arrears !

Many thanks

SallyCourt

 



Comments

Industry Observer

10:45 AM, 23rd April 2014
About 6 years ago

You can't "go to Court" you can simply issue the Summons into Court and it needs to be left until the day after the notice has ended - in this case Monday.

You were very generous giving them another month you could just have given them a week's notice of your intention to rely on the s21 that has already matured and is available to use

Neil Patterson

10:52 AM, 23rd April 2014
About 6 years ago

Hi Sally,

If they are separated do you know if they both still living at the property?

Steve From Leicester

11:08 AM, 23rd April 2014
About 6 years ago

What IO says is technically correct, but I'd be a whole lot more cautious.

The question doesn't say when the S21 expired - if it was issued 12 months ago it might have expired as long as 10 months ago and the wording of the question implies that this is the case.

If it did, then combined with the fact that you verbally told them they can stay you might find a judge refusing to grant possession - arguing that by verbally telling them they could stay and taking no action for 10 months you'd effectively invalidated it.

(Note to IO here - I agree that the judge would be wrong to draw that conclusion but I've known judges make "wrong" rulings before).

Muddying the waters still further is your "one month's notice". You served an S21 telling them to leave by a certain date, then you told them they could stay, then you told them to leave in a month. Meanwhile the tenant has told you she's going nowhere.

If it were me I'd probably play safe and issue a fresh S21 today, in time for the next rent due date on Friday. It means a wait of 2 months before it expires but at least you can safely go for Accelerated Possession at that point.

If you rely on what you've already issued you run the risk that the judge throws it out and you're back to square one in a few weeks time anyway.

Industry Observer

11:32 AM, 23rd April 2014
About 6 years ago

Hi Steve

Sally Steve is right in that caution is best and although I said a week in practice you'd normally give 2 weeks and the tenant probably won't vacate then anyway especially if they have got used to staying on.

There is no time out on a s21 there was a case several years ago where a CoA Judge confirmed it was still valid after 3 years.

There is an argument that by implication if you didn't enforce it at the time it matured then you tacitly created an ongoing periodic tenancy and if it is some time after then a cranky (or crackpot) Judge in a lower court might well tell you to go away and to terminate a periodic tenancy in his court return with a periodic notice.

Spencer v Taylor (until overturned which I believe it will be in the Supreme Court if it goes there which I also believe it will) also muddies the waters in this respect.

But the main point where Steve is right and I had missed is this verbal statement they could stay. If only made in front of them you could I suppose deny it as they would say that, wouldn't they? But Steve is right and saying tenants can stay on is as bad, if not worse, than issuing the notice and then while it is still maturing, discussing a possible renewal or even issuing s13 for a rent increase. Bad verbally, probably fatal if in writing.

Obviously a full blown renewal kills all previous s21 notices, but anything else in connection with the existing tenancy must be handled carefully if not to trip yourself up.

Well spotted and commented Steve

Don Holmes

12:09 PM, 23rd April 2014
About 6 years ago

Hi Sally I note you mention rent arrears, if the arrears amount to 8 weeks or 2 months depending on the terms of your AST, then there is a quicker route under section 8.

This is a 14 day notice period after which you can submit your application to court and stand a chance subject to the notice being served correctly of getting a money order so you may even recover some lost rent?

This is all self doable but can look a bit complicated and daunting, so maybe seek some professional assistance such as a solicitor, if it is done correctly the judge has no discretion and must issue a possession order. Good Luck .

Ian Ringrose

12:15 PM, 23rd April 2014
About 6 years ago

Depending on the tenants, just issuing the court papers and explaining that no landlord will every rent to them if there is an eviction on their credit files and references may be enough.

Romain Garcin

12:23 PM, 23rd April 2014
About 6 years ago

Not immediately seeking possession does not invalidate a s.21 notice, and certainly does not have any impact on the creation of whatever tenancy.

Same for renewal discussion or s.13 notice: No impact.

In Sally's case, if there is not evidence of the agreement that the tenant may stay, I'd be tempted to start possession immediately. Though the safest is to immediately serve a new notice.

Mark Lynham

12:41 PM, 23rd April 2014
About 6 years ago

I'd issue a new s21 personally... the fact that you were happy to take the rent surely means you were happy not to enforce the S21 at the time...
If she is indicating that she wont move out i'd play safe... maybe take legal advise.
i would also try and avoid the S8 route, its not as easy and quick as people would believe..

Industry Observer

13:54 PM, 23rd April 2014
About 6 years ago

Romain

You cannot threaten to evict and discuss a renewal at the same time. S13 on reflection maybe as if it is a periodic tenancy then the Landlord is entitled to serve it by Statute.

There have been plenty of lower court cases - which is where this would start - where Judges have been persudaded by that defence argument on discussing renewals though - and if saying a tenant can stay in writing or in front of witnesses I'd definitely steer clear of that.

Only safe way is to say staying on what terms i.e. tenancy has gone periodic but Landlord reserves right to use the s21 sitting on the file.

Mark

Show me the Statute which says a Landlord cannot have a s21 on file, be collecting rent under a periodic tenancy that has arisen automatically, and then be barred from using the notice.

Romain Garcin

16:03 PM, 23rd April 2014
About 6 years ago

Reply to the comment left by "Industry Observer " at "23/04/2014 - 13:54":

s.13 can only be used if tenancy is periodic, and indeed raising rent does not imply anything so this is moot.

"i.e. tenancy has gone periodic but Landlord reserves right to use the s21 sitting on the file."

I cannot see courts being impressed by that. This contradicts your previous point.

Only safe way is not to tell tenant anything, or just say that you might not start proceedings immediately.

On the other hand, obviously a tenant can always claim that landlord has told him that he could stay... I'm hoping that courts want to see some evidence otherwise there won't be many possession orders.

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