Is this a landlord setup?

Is this a landlord setup?

8:08 AM, 15th November 2012, About 9 years ago 17

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Readers QuestionsAlex sent the following email last night outlining a bizarre situation he finds himself in which looks to us like a “landlord setup”.

We have invited some of the most knowledgeable people we know to comment on this thread as the circumstances Alex has described look to us to be potentially fraught with legal problems.

Please read Alex’s email below and subscribe to this thread to follow the advice given by industry experts. To subscribe to comments of this thread simply add your email to the box just above the “Commenting Advice” below this article and click the orange button. You will then receive an email from Google Feedburner asking you to click a link to confirm your subscription to this thread – obviously it’s free 🙂

I would like some advice on a situation I have never faced before. 

My tenant was due to pay his rent on the 1st November 2012 and I usually go to the property to collect it, however I got a message from him to say there was a problem with his bank account and could I collect it on the 4th instead, which I agreed to. However on the 4th he requested I meet up with him on the 5th instead. 

On the morning of the 5th I had a text message to say he had been attacked outside the property and had been admitted to hospital!! I contacted the police the following day out of concern but had been told they would not give me any information about the situation, and I should speak to the tenant direct, but I told them it was difficult to do this as he was in hospital, to which they advised he had been discharged.  When I tried to contact the tenant no one was answering or returning text messages, eventually he contacted me via a text to say he was still in hospital and could not pay the rent,(but he didn’t know the police had already told me he had been discharged), he also said he did not feel happy to go back to the property or continue with the tenancy agreement because whoever assaulted him knows where he lives.

The following day he text to say he has “gone into hiding” as the police have provided somewhere safe for him stay and he would not be able to pay the rent. I tried several times leaving messages asking him to call me so we could sort this out, but he just ignored them all. 

That night I had a call at 10pm from a neighbour saying someone was trying to kick the side gate in  which is the entrance to the property.  We went down to check it and found the key would not fit in the door and the gate was wide open. We secured the gate and had to change the lock because the key would not go in, at the same time I contacted the tenant to inform him of the situation, but only through texting and got no answer from him.

On the 9th I had a text from him saying I had no right changing the locks or bolting the side gate from him and he wanted access to his flat as he had been to the citizens advice bureau informing him of his rights. I phoned him straight away and said I was more than happy for him to have access but asked why he had not returned any of my calls. In the meantime I had contacted the police asking for them to give me more information about the situation because the tenant was claiming he had a broken jaw and fractured ribs and he had gone into hiding, however the police said it sounds as if the tenant was fabricating his story and he has not been put in a “safe house” 

As you can imagine there is a picture forming here so I agreed to meet with the tenant at the flat , he collected some stuff and asked I lock up and keep the gate bolted because he did not want his “stuff” pinched. I asked him about the rent owing and he said he would be in contact. Days later I still hadn’t heard anything from him so I contacted his guarantor who was aware of the assault but not the rent left outstanding.

I have had the tenants girlfriends mother on the phone accusing me of being insensitive and uncaring but I explained I have been very patient and still had not received any rent 12 days on and no contact from the tenant!  I also explained to her my mortgage still has to be paid regardless, to which she slammed the phone down!

I am now left with a dilema, the tenant claims he cannot go back to the flat and no one knows where he is and he’s still got his stuff left in the flat but also he did not take a key when I met with him asking I keep an eye on the property for him. The guarantor has been informed that we will take action if the tenant does not pay the rent.  What action do we take as I presume we have to give him 8 weeks grace to pay it? How can you serve any notices if you do not know where he resides? What happens with his possessions and could he be deliberately waiting for us to evict him so he can get out of his Tenancy Agreement? Finally why did he not take a key which at the time I thought nothing of it but now I’m concerned it will look like we have changed the locks to stop him having access.

I realise this is a long email with lots of detail but would appreciate any advice on moving this forward.

Regards

Alex

 



Comments

by

16:46 PM, 15th November 2012, About 9 years ago

Given that he has already contacted the CAB and acted in an erratic manner, it would be unwise to imply surrender.

I would serve Section 8 & 21 notices and go for eviction. Your AST should state that service at the tenanted address is the correct address for service, regardless of whether he is there or not. But also email/ send a text to confirm the notice has been sent, and send a copy to the guarantor.

Also confirm in the same manner that you have a key for him to collect and to have access to protect against an illegal eviction claim.

Speak to the guarantor and remind them that they are liable for an escalating liability and it is in their best interests to work with you to minimise this - ie to encourage the tenant to move on. If they do go, get them to confirm their surrender in writing and get this witnessed.

by

18:02 PM, 15th November 2012, About 9 years ago

This is my first post, but as someone who has seen and heard most things, your course of action depends on what you want to do. If it was me i would prefer to get the tenant out quickly and then deal with trying to get the rent. The best way of "flushing him/her out" is to put pressure on the guarantor. Send them a invoice / demand for rent (enclose a copy of the guartantor agreement) give them 14 days to pay. When they don't spend the ÂŁ60 on filing court papers so they know you are serious.

This will more than likely flush out the tenant and they will either show their hand or leave. From there you can take your next course of action. Its all a game of chess !

Hope this helps.

by

18:08 PM, 15th November 2012, About 9 years ago

An interesting read. I would like to point one thing out though. Citizens Advice, Trading Standards and the Courts don't take sides. The reason I bring this up is that I was in the retail business years ago in a shopping center selling ex-catalogue returns. I had a visit from Trading Standards due to a run in with a customer. After explaining my business principles and the false economy of selling anything that was rubbish with reputation in mind and trading in a shopping center it soon became apparent that Trading Standards don't take side with someone who is "abusing their rights". In 4 years I had a couple of calls from Trading Standards concerning complaints and on explaining the situation in detail heard no more.

Keep proof as in text messages etc. If you act in a fair and proper manner people don't have any rights to abuse and obviously legal aid will be unavailable.

Don't be scared of Citizens Advice, make contact with details and if you are acting fairly they will move into the background and act as mediator.

by Jonathan Clarke

20:17 PM, 15th November 2012, About 9 years ago

Its a grey area - I like grey areas because it generates confusion and I take advantage of that and seize the moment to preserve my business. As Zahir says its a game of chess. You have to act strategically to out manoeuvre him but cover your defences just in case he is good at the game as well.

I would personally would be inclined to assume implied surrender. Possession is 9/10ths of the law in my eyes. You have evidence of surrender in the text and he has also lied to you. An audit trail of the sequence of events will prove he has lied if he tries to take you to court and that will weaken his case . The police and hospital will be able to verify the correct timing of the events and this will hugely discredit him as a witness. He is very unlikely to want to pursue this in a court.

Serve the sec 8 and 21 though to make him realise the game is up. He will be looking for an escape route out of the whole situation. You can offer him that. Take back the flat and store his possessions safely . Evidence everything and take a witness. Go after the guarantor for the rent. This will put the pressure on them both and their own relationship with each other. The guarantor will do some behind the scenes work to resolve it as suddenly he is the piggy in the middle and wont think it should be his battle to fight. They will start arguing between themselves and then you pop up negotiate and agree to return his possessions and not chase him for the rent and in return he confirms he will give up the tenancy and not pursue you for wrongful eviction.

I am not a lawyer and say that naturally you should seek legal advice to cover myself BUT this is the practical way i would deal with this. This type of route has yet to let me down when push comes to shove and I have to employ it. Good Luck with whatever you decide is the best course of action. There has been lots of good solid advice on here.

by Industry Observer

10:29 AM, 16th November 2012, About 9 years ago

On the face of it this whole saga smacks of the usual “I want out of the tenancy how can I do that” syndrome and I have seen it many times before. Maybe the tenant has been attacked, maybe he has been in hospital, maybe he is recuperating with friends and family. But there is no reason he should go into hiding from you, as if he does want out of the tenancy he needs to be speaking
to you.

You face a very dangerous situation here though Alex and I like the Zahir comment about it being a game of chess. Sometimes in chess you make a move back to then go forwards again, and I think you need to do that here. You need to take one well thought through step at a time. Best advice I ever had was “Don’t ever write anything you would be uncomfortable with if it was read out in a Coroner’s Court”. This was after a wise manager saw a letter I had written that was a particularly firm arrears letter to a borrower who luckily didn't top themselves as a result!.

You must think like that Alex, because all the tenant is telling you in terms of being assaulted and fearing if he goes back to your property may well be true. OK so he has tripped himself up over the hospital discharge and police safe house stories. But they will be as nothing compared to him swathed in bandages and limping into Court on crutches, and his girlfriend and mother blubbering away.

I agree entirely with Mary Latham’s comments, and most of those of Tessa and Mark and their advice on other measures to take. You do indeed need to document every single step you take and have copious file notes of actions ideally witnessed by someone as they happen.

I would tread very carefully in terms of “implied surrender” especially in a scenario where all is not sweetness and light in your relationship with the tenant. One of the key deciding factors in abandonment and harassment etc cases is whether or not the Landlord acted in haste, and above all in pursuit of his own aims. For example go in without consent to do a gas safety renewal
and it won’t even get to Court. Go in with an estate agent to measure up so you can sell the place, or to show replacement tenants round when you have given a s21 to the tenant for no failure on his part, and it will be looked at entirely differently.

As I say forget implied surrender for now at least that is too convenient an argument and I would not go down that route, not yet at least. Unlike Mark however I would have no worries about changing locks as long as you can satisfy a Court, if challenged, that you were acting in the tenant’s interests as well. After all, did you know at that time that the tenant had changed the locks – if indeed he had changed them? Maybe he changed them because when assaulted they stole his keys? Far fetched - you wouldn't believe what they can come up with in Court Alex.

Long as you are available and can smile sweetly and hand over a key and cease any denying of occupancy to a tenant, you normally will not get any legal grief over it.

What was his answer to why he was not communicating? He also now seems happy for you to have changed the locks – protecting his interests as I said!! In any case he has asked you to “keep an eye on the property for him”. This to me is a very significant statement and one that could work badly against you in any claims of unlawful exclusion etc – hardly the statement of a tenant who does not intend returning is it? That he wants you to “keep an eye on the place” for him?

Who is the Guarantor – the girlfriend’s mother (I hope not). Is it a joint tenancy or just in his name?

Unless the mother is the Guarantor do not deal with her and unless the girlfriend is a named tenant do not deal with her either. Unless the tenant asks you to – and only on condition they conduct themselves (and his matters) in a civilised manner.

The tenant claims he cannot go back to the flat – but he must mean for now and while recuperating as he has asked you to keep an eye on it for him? It is his choice not to return, but as long as he pays the rent he is in no different a position than if he was on remand. He’d like to occupy but is prevented from doing so – or at least in his eyes and for the time being.

I would not even contemplate storage at this stage either. Accept the mantle of involuntary baillee and the obligations so assumed under The Tort of Goods Act and you will be spending a lot on storage and for up to three months. Deal with the goods once you are LEGALLY in possession.

I agree with Tessa here I think that a s8 must be issued on day 32 which is barely two weeks
away. Not a long time to wait Alex to have the Law 100% on your side. In fact I’d be tempted to issue one now just under grounds 10 and 11 plus 12 and then issue a new one including ground 8 on December 2nd stipulating that the earlier one is cancelled and obsolete.

Make sure you send one to the Guarantor you must keep them fully involved – even if it is the girlfriend’s mother!!. Guarantors I once heard described as “A fool with a fountain pen” and it is true they have all the liabilities and only two benefits. One is having their liability limited to what they have signed for.

The other and the one that impacts on you is to be advised of any contingency arising which might at some future date give rise to a claim under their guarantee.

In other words if there are problems tell them immediately. Focus on the Guarantor is excellent advice – unless it is the girlfriend’s mother!!

Make sure if the tenant does want access that you give it to him, and make sure he has a key. You do not, as you rightly identify, want to be accused of denying access and unlawful possession. I would also document the fact that you have already offered a key and it has been refused

Other thing to do is seek specialist legal advice to make sure you have taken all the steps you need to, and as advised by others here, to protect yourself. You could swear an affidavit with the solicitor to events so far, I think for ÂŁ7.50 fee is it that would be a good move

by Mark Alexander

10:40 AM, 16th November 2012, About 9 years ago

Hi Mike

Superb and very well thought out response, as are many of the other responses here too.

What makes you think we have a different point of view on the changing of the locks?

I would have done exactly the same thing, but I would also have covered my own arse by getting a statement from the neighbour, as I have advised Alex to do.

by

11:31 AM, 29th November 2012, About 9 years ago

Thought I would give you an update on the tenant who disappeared without paying his rent and the police being involved! Firstly many thanks to those of you who took time to give some good advice!

I started to worry over the fact I had to change the locks and the tenant did not have a key because he "went into hiding" some of you suggested I send the key to the guarantor which I did with a request for rent payment. I sent it recorded delivery but when I tried contacting via phone he ignored all contact. I could see this was going to drag on and on so I spoke to the Agent I've used in the past who suggested I have a word with the Guarantor and come to some agreement where if the Tenants move out the months rent would be forgotten about provided they moved out in the next week. The Guarantor didn't respond so I resorted to contacting the Tenants girlfriend at work as I felt I had no other option! She agreed to move out straight away but when I asked why she or her boyfriend would not contact me she denied any knowledge of calls or text messages and they didn't want to live there anymore anyway! They have moved their stuff out and signed a letter agreeing that the Tenancy Agreement has been cancelled giving me permission to re advertise the property and putting it on the market. I have to say I'm happy to see the back of them and grateful they did not trash the property (although I made sure I was there when they moved out).


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