Mary Latham questions landlords rights to reposess

Mary Latham questions landlords rights to reposess

19:19 PM, 1st September 2012, About 12 years ago 79

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“Why are landlords being denied our  legal right to repossess  a “dwelling house” Under Section 21 of the Housing Act 1988?”Mary Latham – Landlord

After reading and posting on this discussion I have been thinking about the possession procedure and how the law fails landlords.

Section 8 is a big bucket of worms and perhaps the subject of another discussion but I would like to talk about Section 21.

The “no fault” possession procedure was introduced in the Housing Act 1988 under Section 21

These are the notes from my course on Possession

  • Section 21 is the no fault route to Possession
  • Requirement to give a minimum of two months notice
  • Full hearing or ‘Accelerated’ option
  • Judge MUST grant Possession Order if Notice correctly served

The Section 21 process:

  1. Complete Section 21 Notice
  2. Serve Notice upon tenant
  3. Get proof of service
  4. Complete Court Form
  5. Apply to Court for a Possession Order
  6. If tenant doesn’t move out apply for Bailiffs Warrant to Evict

Tenant may voluntarily surrender the tenancy at any time

All of this seems so straight forward – why isn’t it?

One of the most common reasons that a Section 21 fails in court is a fault on the date that Possession has been requested. I will not go into the long version here but the safest option is always to ensure that you give a minimum of 2 months Notice which expires at the end of the day before the rent is due.

The second most common reason for failure is that that the tenant denies having received the Notice. The safe option here is always to get a witness statement to say that the witness read the notice and saw you put in through the door, hand it to the tenant or post it at 2 separate post offices. Try to find a witness that is credible and not a family member.

Supposing the Notice has been correctly served and the landlord has the Witness Statement to prove it the Act says that “ a Court shall make an order for Possession of the dwelling house”. There is nothing in the Act about a tenant defending the Notice – it is a “no fault” Notice the landlord is not accusing the tenant of anything he is merely excising his legal right to repossess his own “dwelling house”. So why are we seeing Courts throwing out the landlords legal claim or delaying giving the Order when the legal conditions have been met?

In my opinion Section 21 cases should never get to court there should be a simple administrative system to check that the Notice is valid and has been correctly served and the Judge should stamp the Court Order granting Possession.  Surely this would be a relief to our over burdened legal system without denying the legal rights of the tenant to have been served the correct Notice at the correct time?

I would be interested to read posts from landlords who have had a Court Order following a  Section 21 delayed despite the fact that is was correctly served.

Now that Squatting is a criminal offence perhaps it is the right time for landlords to ask –  Why are landlords being denied our legal right to repossess  a “dwelling house” Under Section 21 of the Housing Act 1988?


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Comments

14:33 PM, 10th September 2012, About 12 years ago

I think the major problem with direct payment is that LHA can be claimed back from a LL if whatever reason the claim is suspended.
I am actually suffering this experience presently.
I was receiving a very small amount of LHA whilst I am in the process of evicting a tenant for non-rent paymet as she doesn't seem minded to leave of he own accord.
I receive a letter from the council advising me that her LHA claim has been suspended as she has not replied to correspndence.
My advice was that it was probably due to the fact that she is hardly ever there.
I know this as I effectively live next door to her.
So now I have no LHA payment at all and if they determine that the LHA paid should not have been paid to me they will come to me for recovery.
They do not do this with RSL's and LA as far as I am aware.
This is why I would NEVER wish to be paid directly.
The only reason I accept direct payment presently is because I will be having her evicted.
It is only in these circumstances that I will accept direct payment.
I know there is a risk of clawback for the length of the period it takes to evict or obtain possession of the property but I could always try and fight the clawback.
I would not wish to be in receipt of LHA for years and have a clawback claim taken against me.
The issue though is that it is fundamentally wrong that due to a claimant having a claim suspended for whatecver reason that the LL should be liable to repay all the LHA that he has recived in good faith for the service that he has provided.
Therefore I do not belive it is correct for any liability to lie with the LL regarding the status of a tenant he is tenting his property to.
Recovery should only be against the tenant.
Until this changes I will accept direct payment circumstances only during an eviction period.
Of course the next issue is when PRS LL; not RSL and LA will not be able to receive UC directly.
My default position will be that the tenant pays directly and as soon as they fail to pay they have to join a CU and arrange payment from the CU to me or be evicted.
I would state tihis on the AST at the outset of the tenancy.
It maybe considered an unfair term but under the circumstances I have quoted that is what would occur.
Down to the tenant then as to the way they behave as they will know the cost of their actions!

Mary Latham

15:36 PM, 10th September 2012, About 12 years ago

when you find out please tell me Mark

Mary Latham

16:41 PM, 10th September 2012, About 12 years ago

All I want is whatever the system that it is the same for councils, RSL's and private landlords.
Recovery of overpayment can only be made from a landlord if the landlord could "reasonably have been expected to know" that the tenant was not entitled to the benefit. That is the regulation Paul.
I am certain that overpayments are not recovered from LA's and RSL's because they could not have been expected to know that the tenant was not entitled to the money. Landlords who respect a tenants right to "quite enjoyment" cannot be expected to know either - in my humble opinion

19:56 PM, 10th September 2012, About 12 years ago

Yes I agree with your contentions; but the way the council put it in the LHA notification letter to me doesn't put it like you do.
It scares me so that I don't want to be even in the position for them to try and reclaim from me.
I know that might be a bit cowardly but I just could not take the financial risk.
I don't think your opinion is in anyway humble; it is very informed as far as I am concerned; but when you have official letters with the threat within, one takes notice and avoids ever being in that position.
Sorry for being a little meek LL, but I have been stitched up too many times to risk it again!!

Mary Latham

20:58 PM, 10th September 2012, About 12 years ago

Post April 2006 to pre April 2009 – HB Reg 101 (2)
4.16 From 10 April 2006, HB Reg 101(2)/(SPC) 82(2) was made more prescriptive. It stated that if the overpayment was caused by a misrepresentation or failure to disclose information the overpayment must be recovered from the person who actually misrepresented or failed to disclose that information.4.17 If the overpayment was caused by an official error, it must be recovered from the person who at the time of receiving the overpayment or any notices relating to the payments, could reasonably have been expected to realise that it was an overpayment.4.18 If neither of the above applied, the overpayment could be recovered from the • claimant• claimant’s partner, if they were members of the same household, both at the time of the overpayment and when it is being recovered• person to whom the overpayment was paid
Source http://www.dwp.gov.uk/docs/hbopg-rec-op.pdf

2:30 AM, 11th September 2012, About 12 years ago

I suppose with the advent of UC it will be irrelevant as private LL won't be allowed to be paid directly.
So it seems a bit silly taking such a risk, small though it might be.
UC will change everything for the PRS; not too long to wait now!
However with your good offices and successes in the past any chance you might persuade IDS to allow the housing portion of UC to be paid directly if a tenant falls into arrear!?

Mary Latham

8:05 AM, 11th September 2012, About 12 years ago

In my opinion we will see LA's and RSL's continuing to get direct payment under UC and it will be only the PRS that is left out in the cold. Tenants who rely on the PRS will become second class citizens because of the system and the fear of landlords - they will really struggle to find a home.

7:13 AM, 12th September 2012, About 12 years ago

i
I think it is
immoral that a person should lose their home through ‘No fault’ of their own.

remember Ben ' is not their home. it is a tenanted home'

I am currently helping a lady
counterclaim for illegal eviction where the landlord changed the locks because
of rent arrears. It is a genuine case.

So why are you representing a Lady who did not pay rent against a landlord who needed the rent?

The landlord probably spat at you because he could not get his mind around a person representing a thief!

9:15 AM, 12th September 2012, About 12 years ago

varioety? oh the sticky keyboard 🙂
A landlord decides to sell and serves a s21 on the tenant and simply expects them to leave. the tenant cant afford to move

it is not the landlords problem...why do people like you make the 'I cannot afford to move' the landlords problem.

The landlord doesn't expects them to move. The landlord has no reason to think that the tenant would not move. 2 months is plenty of time to find an alternative place to live.

The no fault of their own is just semantics Ben. It was invented to make people feel better. But here you come and pick on 'the no fault' and give it a new meaning.
let it be

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