If it isn’t Written Down, it Didn’t Happen – The Evidence Is In The Communication

by Peter Devaney

14:58 PM, 17th May 2012
About 7 years ago

If it isn’t Written Down, it Didn’t Happen – The Evidence Is In The Communication

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If it isn’t Written Down, it Didn’t Happen – The Evidence Is In The Communication

A few of you have talked about communication on here before, but today I wanted to talk about communication issues and the problems they can cause.

I had a landlord friend once who swore blind that the more effective form of communication he had with his tenants was on the phone. He felt it added a more personal touch to their relationship and that they respected him more for it.

Yet like all of us at some point, he came across a tenant who took advantage of the fact that he communicated by phone to get around issues of rent and their eventual eviction.

The tenant claimed when the issue finally went to court that my landlord friend had never been in contact with him about his rent being overdue, and as you can imagine, this created a tonne of problems, the main one being – lack of evidence.

He couldn’t prove that his tenant had taken the calls nor could he prove what they had talked about when he finally found his phone records. So instead of getting his rent paid and the tenant out, his case got dismissed and he had to go back to the beginning of the eviction process and formally send his tenant a rental arrears letter etc.

Now don’t get me wrong. I think there is nothing wrong with chatting to your tenant on the phone, especially when it comes to maintenance issues and repairs on the property. But I also think it is important to keep a written record of all your correspondence.

This saves a load of hassle over the long term and prevents any disputes from your tenants.

Take the following scenario. Here is how I would handle it to ensure the best interests of the landlord and the tenant.

Scenario One: Overdue rent

  • Misses rental payment: send immediately a Rental Arrears Letter reminding them of the amount due and when it was due by.

    Note: I would also give them a call to see if they are having problems. If they are struggling to find the rent, I would make an arrangement with them, but get this confirmed and dated in writing (as well as signed and witnessed) as to prevent any further problems.

    Yes you may think this is extreme, but believe me if they then claim you never made this arrangement, how can you prove it?

  • Misses 2 months rent: if your tenant has still made no effort to pay their rent and are refusing to speak to you, send them another Rental Arrears Letter, stating the amount owed and the date it was due. Also in this letter, mention that if they continue to fail to pay their rent, you will issue a Section 8 Notice asking them to pay or vacate the property.

    Note: on all letters you send, it is important that they are dated and that you use recorded delivery as this will provide you with a clear record that your letter has been received by the tenant and when they received them.

  • Send a Section 8: if your tenant is 2 months in arrears and has made no attempt to pay their rent, you can issue a Section 8 Notice which will give them 14 days (from the date the notice arrives at their house) to either pay the rent owed or vacate the property. Should they fail to do either of those you can then apply for a hearing at a County Court.

See what I mean? Clear communication is key and can’t just be verbal, otherwise you’ll open yourself up to a tidal wave of problems.

But this is not all you need to keep an eye on…

When keeping written communication with your tenant it is also important to do the following:

  1. Use recorded delivery – it is important that you get receipt of delivery, so you can prove that your letters arrived at the tenant’s property and that they were handed directly to them.
  2. Be careful of dates – this is particularly important when issuing a Section 8 or even a Section 21. These notices will begin when they are received by the tenant, meaning you can’t start counting 2 months from the day you post it, but from when they are arrive. That’s why I recommend using recorded delivery so you know exactly when the notice is going to be delivered and can date the notice appropriately.
  3. Get a signature – as well as using recorded delivery, also make sure that your tenant signs for the letter/notice so they can’t deny receiving it.
  4. Use witnesses – whether you choose to make an alternative agreement with your tenant to pay the rent a week later or choose to send them a Section 8 Notice when they are 2 months in arrears, it is a good idea to get to someone to witness these letters and sign, as they can prevent further disputes over dating or tenant claims of lack of knowledge.
  5. Make sure your tenant has got the correct address for you – this has caught a lot of landlords out who have failed to update the tenancy agreement to include their new address. The problem it creates is that it gives tenants room to claim that they have contacted you (the landlord) and have got no response.

Even if you are using a property agent, and don’t want your tenant knowing your address, it is important during the eviction process that your home address it up to date.

Now I am not claiming all tenants are going to try to ‘do you over’ when issues arise, but honestly, what would you prefer – clear communication free of potential complications? Or the minute chance that your tenant will take advantage of you not following procedure, and instead leave you without rent for months on end?

It took my friend over 6 months before he finally got rent from this tenant. 6 months of no profits or being able to find a replacement tenant for the property.

So seriously before you make your phone your new best friend, be sure as a landlord that there is no room for error and that all your communications can easily be recorded and documented. It is better to be safe than sorry, believe me.



Comments

19:49 PM, 17th May 2012
About 7 years ago

This is excellent advice. I can certainly vouch for the benefits of good record keeping, having had a tenant attempt to bring a bogus disrepair counter claim against me at a section 8 eviction hearing.

The tenant got behind with her rent and made the usual promises to repay  quickly but, in actual fact, never made another payment. Whilst this was going on she sent me a text message reporting a leak in the bathroom and a broken gutter.I managed to resist the temptation to tell her I'd fix it when she started paying the rent again and made an apointment for my handyman to attend the property.

The tenant refused to let my handyman in when he went to the property, claiming that she was ill. I was slightly suspicious of  this so followed the arrangement of a second appointment up with a letter of confirmation sent by recorded delivery.
Sure enough the contractor was refused entry again and  this also happened a 3rd and a 4th time. Again, each time I confirmed the appointment in writing and my handyman also kept a written log of his visits to the property.

A few days before the section 8 court hearing, I received a letter from the local environmental health department informing me that they were going to inspect the property in response to a complaint made by the tenant.

 When I arrived at the court hearing, the tenant was represented by a legal aid solicitor who requested a 12 week adjourment  to the section 8 case. He argued that the tenant had only stopped paying the rent because I was refusing to carry out essential repairs to the property and that this matter required full investigation before the section 8  case could proceed.

Fortunately the judge gave me an opportunity to respond to this allegation and I was able to produce  evidence that the tenant had refused my handyman entry for pre-arranged appointments to resolve the problem on 4 occasions, and that they had signed  for the letters confirming the appointments each time. The only evidence the tenant was able to provide was a copy of her original text message.

The Judge refused the application for an adjournment and awarded me possession, pointing out that a claim for disrepair  is only valid if it can be proved that the landlord has been informed of the alleged disrepair and has failed to address the issue. 

The point of this rather long winded story is that keeping writtem records probably saved me several thousand pounds - not only the cost of the tenant remaining in the property rent free for at least another 3 months, but also the substantial legal costs of defending a disrepair case.

Gary Nock

22:17 PM, 17th May 2012
About 6 years ago

Be careful using recorded delivery. If they don't sign for it in law it is not considered as served. If you send first class post with a certificate of service from the post office which is no charge it is considered served the following day.

Mary Latham

14:55 PM, 19th May 2012
About 6 years ago

I agree recorded delivery is not always a good option for the reason that Gnock has given.  I favour a witness statement to say that they read the Notice and saw it placed in the envelope and either posted at two different Post Offices, with free proof of posting or handed/posted through letter box of tenant. This can then be attached to Court papers.

Paper layers are what make up the shell that covers a landlords back and the more layers the thicker the shell.


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