Mark Prichard

Registered with Property118.com
Friday 3rd February 2017


Latest Comments

Total Number of Property118 Comments: 6

Mark Prichard

13:54 PM, 29th October 2017
About 11 months ago

Am I getting the right Section 21 advice - Father provided deposit?

Reply to the comment left by Mid Landlord at 28/10/2017 - 11:17
I suspect, as you indicate, that option (b) will be preferable as it has the advantage of certainty.

Your case perhaps highlights the importance for landlords of:
(a) asking tenants to confirm who is paying the deposit, and
(b) not proceeding to grant the tenancy in a situation where a third party is paying the deposit directly to you, but you haven't obtained/confirmed their address for service of the prescribed information notice.... Read More

Mark Prichard

22:57 PM, 27th October 2017
About 11 months ago

Am I getting the right Section 21 advice - Father provided deposit?

Reply to the comment left by Martin Youngman at 27/10/2017 - 19:13
I was presuming that the money was paid directly from the parent to the landlord?... Read More

Mark Prichard

17:47 PM, 27th October 2017
About 11 months ago

Am I getting the right Section 21 advice - Father provided deposit?

Given that's it's a statutory requirement I'd definitely seek legal advice on the effect of the non-provision of the father's address before lodging the possession claim.

It may be advisable to refund the deposit before reissuing the s.21, so you can avoid a defence on this basis by the tenant.... Read More

Mark Prichard

12:06 PM, 2nd May 2017
About A year ago

Section 21 and conflicting Government policies

The Council may lawfully decide that your tenant is not yet homeless or threatened with homelessness.

However, they DO have to have regard to statutory guidance which states, essentially, that if there's no defence and you intend to apply for possession they should treat the applicant as homeless when the notice expires (on the basis that it's not reasonable for them to continue to occupy).

And yes, it's correct that they CANNOT adopt a blanket policy of requiring all tenants in this situation to remain in occupation until they're evicted.

What this means in practice is that the Council must consider the applicant's specific circumstances and give reasons for deviating from the recommendation in the guidance.

It would be the applicant that challenges their decision (rather than you) by requesting a review of the decision that it's reasonable in their particular circumstances to remain in occupation until the tenancy ends. They have 21 days from the date of the written decision to request a review.

In summary, providing the Council give reasons for their decision, have regard to the guidance and take the tenant's particular circumstances into account it's entirely lawful to take the approach they have.

A fundamental reason for this being the legal position is that an assured shorthold tenancy does not end (in the absence of notice from the tenant or surrender) until you obtain a possession order and a bailiff's warrant.

If it's more than 28 days from the date on which the notice expires the tenant will not - absent some other reason why it's not reasonable to remain, e.g. domestic abuse - yet be 'threatened with homelessness' in any event and the council will owe them no duty.

One would however expect them to help the tenant as a 'non-statutory' case, i.e. by advising them and helping them find alternative housing, so they don't end up having to assist them as a homeless applicant.... Read More

Mark Prichard

14:04 PM, 21st February 2017
About 2 years ago

Housing benefit and direct landlord payments

Hi Robert

Sorry for the delayed response!

Sounds as if the council in this instance was particularly unhelpful.

I think you're right in the scenario you described (i.e. the rent is in arrears and HB should be paid direct under Regulation 95(1)(b)) assuming of course that the tenant is contractually required to pay two months' rent in advance, and that you hadn't taken any rent at all (so the arrears at the time of the benefit processing were equal to or exceeding the equivalent of eight weeks' rent).

The only exception would be if they've decided that for some specific reason direct payments would not be in the tenant's/claimant's interest.

It's worth noting as well that councils have discretion in any event when making the first payment, to pay the landlord directly. A lot of benefit decision makers will exercise this discretion in respect of the first payment if it's for a significant amount (as it often is of course, e.g. if there's been any delay in processing the claim).

I would say however, that in the scenario you describe, once the first payment of HB is made to you, the tenant/claimant will no longer have arrears equal to or exceeding 8 weeks' rent. Therefore they could choose to make future payments to the tenant.

This is why it's important in most cases to set out other reasons why they should exercise their discretion to pay you directly (utilising the rules set out at pages 11 to 13 of my guide).

For example if you are genuinely likely to serve notice and seek possession if payments are not made to you directly, or if the tenant has particular issues making it difficult to manage their finances and ensure their rent is paid.

I would suggest that if you suffer any loss as a result of the council not complying with the mandatory 8 weeks rent arrears rule (i.e. the tenant does not pay their rent, having received the benefit) you consider making a formal complaint. You can adapt the template letter on my website to help you do this (search for 'making a formal complaint to a council because they have not given a decision following a request for direct landlord payments').

If you have a lot of tenants claiming HB with the same council a complaint may help alert decision-makers to the mandatory nature of the 8 weeks arrears rule, and discouraging them from doing the same in future.

I hope this helps.

Mark... Read More