Taken over management of a property with a LHA tenant – Readers Question

by Readers Question

14:38 PM, 10th January 2013
About 6 years ago

Taken over management of a property with a LHA tenant – Readers Question

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Taken over management of a property with a LHA tenant – Readers Question

I  would like some advice about one of my LHA tenants?

I have recently taken over management of 4 properties with Housing Benefit tenants resident. All are great except one. A tenant of 3 years with another agent is refusing to accept the take over of management by my company, sign any agreements or mandates and will not pay the rent direct to my company or even the landlord.

They are also refusing access to my maintenance team to resolve issues at the property that they reported on first visit, such as no smoke alarms at the property and a gas cooker feed which is apparently unsafe.

The tenant will only respond to letters to say they are unavailable for any inspections, and calls my contractors shoddy and unqualified and threatens to call the police if i try to visit or gain entry. I have issued the section 21 as a way to get the tenant to see sense, but this has not worked,  is refusing to accept it and is very hostile towards me.

The tenant says they have a solicitor involved and will not pay rent until the legal position has been resolved. The tenant has told the landlord to change to another agent as I carry out regular inspections and does not want this system in place, and is apparently taking me to court for not supplying the landlords address although I have supplied my contact details should she wish to serve notice or have any maintenance issues. Also the solicitor will be contacting me for not allowing  “peace and enjoyment at the property” along with harassment.

I have now set up the LHA rent to be paid direct to me as it is 8+ weeks arrears, so that is hopefully sorted. What I would like to know is how I can gain access without going to court under Section 8, ground 12, as the landlord does not have the funds to cover this cost. I have sent the letters to say they will use management keys if they are out, but the tenant says that they will call the police if I do so.

Can I do this? Can you suggest any way in which I can resolve this issue? I have also managed to get the landlord to reduce her rent to LHA level if my agreement is signed. I have sent a letter to confirm but the tenant now believes it is reduced without an agreement being signed and is appealing against the amount of arrears.

I would be very grateful for any voices of experience if you could advise me.



Comments

14:56 PM, 10th January 2013
About 6 years ago

Send the section 21 first class post, wait until the expiry date, then start court proceedings. Do not contact the tenant again to stop further harassment claims.
If they say you can't enter, then do not. They have the final say whether you enter, with or without keys.
People like this have nothing better to do and will pursue you relentlessly! Don't let them control the situation.

15:27 PM, 10th January 2013
About 6 years ago

Totally agree with Damien. That seems the best way forward on this one. Good news is you will at least be getting some rental paid. Get them out via the courts as soon as you can. Good luck

16:53 PM, 10th January 2013
About 6 years ago

You MUST NOT enter the property, no matter what it states on any AST agreement.

If you do so the LL and not you; as you are just the LL's agent could be rightfully accused of not allowing the tenant 'peaceful enjoyment'.

Even if the tenant does not pay rent they are still entitled to have 'peaceful enjoyment' until evicted or they surrender the tenancy.

Under NO circumstances enter the property UNLESS the tenant has given you permission which I suggest should be via email or SMS or letter.

You are NOT allowed to enter the property irrespective of what your management contract states or what the AST states.

The exception to this; is if there are emergency repair works which need to be carried out to ensure the amenity of the property; then you may enter any time you like.

However it would be courteous to advise the tenant as to a time you would like to attend to effect these repairs.

If the tenant refuses to give you a reasonable time then you state you will be entering whether the tenant likes it or not due to the nature of the repairs that are needed to be carried out as not doing so would cause further detriment to the property.

Advise the tenant that if he attempts to prevent entry , you will call the police to effect entry to carry out the works and have the tenant removed if he interferes with your contractors.

No Section 21 proceedings or any other for that matter will proceed until the tenant has been advised of the LL contact details.
You will NOT be able to remove the tenant except by eviction if the tenant refuses to leave.
This means providing his LHA claim is not suspended direct payment may be made to the LL after 4 weeks and 1 day as it is not 8 weeks arrears but 2 missed monthly payments if rent is due in advance.
It is IRRELEVANT if LHA is paid in arrears.
The AST states rent is due in advance monthly.
Essentially if the tenant only pays in arrears he is always in rent default which means if he fails to pay in advance for the 1st month and then does't pay the 2 nd advance monthly payment on the 1 st day of the 2nd month for e,;; he is 2 months in rent arrears and you may then apply for direct payment on the 2nd month's day.
The LL should NOT retain this tenant as he is obviously.a wrongun!
Take immediate steps to remove this tenant; by giving notice if not already done.
There should ideally be an active S 21 so that proceedings may be commenced immediately.
Do NOT try to meet the tenant half-way; he has shown his true colours by his attitude, time for him to be booted out.

Reader

18:04 PM, 11th January 2013
About 6 years ago

Regarding service of section 21. On no account rely on the royal mail. Employ a proffesional process server (sometime they are also court bailiffs ) not only do they get to know the tenant early on in the case but if their proof of service documentation is challenged firstly, it will be up to specification and they will be a known and hopefully reliable name to the judge! It is well worth the comparative few ponds they will charge you.

9:54 AM, 14th January 2013
About 6 years ago

Taking a step back, what is the legal postion of tenancy agreements and swapping of owners./landlords/agents?

1) If the initial minimum term has come to an end - do tenanst have to sign up to continue 'rolling' or leave before the business swapovers?

2) If takeover is mid term, is the swapover only possible providing there are terms in the contract?

Perhaps in the later case it is not necessary for tenant to sign anything for 'the (implied) cotract' to remain in place.
...
By the way (less legal and more human/e note) - what's the tenants game - are they spooked and need a chat - or do they see this as an oppurtunity to live somewhere under no contract and live rent free - or are they avoiding getting into any minimum term so they can bail out shortly - either because for them that is a good option or becasue they are unsure of new management company.

10:51 AM, 14th January 2013
About 6 years ago

You can enter the property under Health & Safety grounds if there is a issue with for example the gas installation, ie fault rather than check-up. But given that they have been there for 3 years, best to try and enter in to dialogue with the tenant and find out what the issue is, don't focus on re-signing the tenancy as if they leave before hand you are not going to persue them anyway, and just get them talking to you.

Mary Latham

21:24 PM, 14th January 2013
About 6 years ago

Landlords and
Agents have no natural legal right of entry to a tenanted property. If a tenant
is refusing entry to have a statutory duty carried out - like a Gas Safety
Inspection - you need to follow this procedure

1. Give 24 hours written Notice that the Engineer will call to carry out the
inspection and that this is required in law if the landlord believes that the
gas installation may not be working as it should. Ask the tenant to give you an
alternative time (during office hours) if the appointment if not convenient to
him.

2. If the tenant does not reply you can assume that he does not object to the
inspection and send a fully qualified Gas Engineer to check the system at which
time he must show his Gas Safe Card to the tenant to prove that he is indeed
qualified to carry out this work.

3. If the tenant refused entry ask the engineer to write a note on his letter
head to say that he called at x time on x date and was refused entry. In this
case if the tenant is not at home do not enter the property and ask the
engineer to write on his note that the tenant was not at home. In normal
circumstances you could go into the property with the engineer, having given
correct notice, but I would suggest that this tenant has made clear that he
does not want anyone in the property and may now entrap you if you enter
without permission.

4. If the engineer carries out the inspection all make sure that you give the
tenant a copy of the Certificate within 28 days.

5. If the engineer does not gain entry take his note to your local authority
Environmental Health Officer and ask for his help. Often a call from him will
solve the problem.

6. If the EHO fails to get you permission for the engineer to call your only
option is to go for a Court Order. It rarely comes to this but you must cover
yourself and your landlord all down the line when a tenant is behaving as this
one is. If you end up in court because the tenant has said that you are
harassing him you cannot rely on the law to support you, despite the fact that
you are only trying to make the property safe.

Putting on my
landlord head. In my experience some long
term tenants do not like change, it makes them nervous. Ironically your offer
to reduce the rent if he signs a document may make him feel that something
untoward is going on – you need to think as an LHA tenant might think, they
have had benefits reduced, they know that it is now difficult to find landlords
who will take people on LHA, you have served a Notice to quit, you want to
carry out regular inspections – can you see how this might all be
misunderstood? If this person has been a decent tenant and has paid rent for 3
years it is a fair assumption that something has upset him.

Time to go back
to the start and gain his trust.

I am wondering
why you need this tenant to sign anything?
If he has a tenancy that is now a Statutory Periodic he is legally “signed
up”. He is not part of the legal
relationship between you and your landlord.
The landlord should have written to all of her tenants to tell them that
she was changing agents and to introduce your company to them. She should have made a formal request for
them to pay the rent to your account in future.
She should have given them your contact details and told them that you
would be contacting them. Imagine a situation where any Tom Dick or Harry could
write to a group of tenants and tell them to begin paying the rent to them?

On the issue of
the tenant requesting the landlords address.
It is a legal obligation of any Agent to supply the landlords address in
England or Wales at which legal Notices can be served on the landlord within 28
days of a tenant requesting this in writing. This cannot be an agents address,
nor a PO Box it must be somewhere that the landlord can be found for the
Service of legal Notices. A landlord can
appoint a Solicitor or someone who has Power of Attorney to accept service on
her behalf but an agent cannot perform legal duties unless he has a Power of Attorney.

I would suggest
that you make your landlord aware of her legal position and the fact that you
must give this information without further delay.

At this moment
both you and the landlord are very vulnerable I suggest that you proceed with
caution and try to calm the situation down and begin with carrying out your
legal obligations.

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15:44 PM, 19th January 2013
About 6 years ago

I’m not a solicitor but when asked for advice on the subject I work on the basis that in view of statute (inc s16 HA1988 & s11 LTA 1985) and any contractual terms, the tenant has already given permission for such an inspection so it could go ahead whether the tenant specifically grants permission or not (irrespective of tenants presence). If tenant specifically withdraws that agreement (can they withdraw a permission set in statute?) then the landlord would need to obtain a court order for access. I have never heard of the latter being done but I presume it would be enforced by bailiffs & the tenant would very likely be ordered to pay for the costs of obtaining / enforcing the order. Of course, a landlords likelyhood of enforcing such a payment would depend on the tenants financial situation.
Personally, I think it is time for this tenant to say bye-bye! Eviction doesn't have to cost much - no more than £400 for a section 21 even with support and 2/3rds of that is recoverable form the tenant (but see above comments). Get a tenant in who will allow the landlord a day or two without stress.


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