Kate Mellor

Registered with Property118.com
Friday 27th November 2015

Location
Manchester

Trading Status
Partnership

Insures properties through a broker recommended by Property118
No


Latest Comments

Total Number of Property118 Comments: 296

Kate Mellor

21:30 PM, 11th February 2019
About a month ago

Frustrated by different advice given for taking possession?

Some excellent advice here. The difficulty with the law is it is rare that something is so cut and dried to be beyond an opposing argument. That’s why people go to court to argue their interpretation of the law every day.

In this instance you have a DEEMED surrender which by definition is an assumption based on the pieces of evidence available to you. You had the very good evidence of an empty property to suggest that the tenancy had been surrendered. However you have only interpreted the tenants intentions in the absence of the tenant telling you his intentions. Sadly the tenant reappearing and telling you unequivocally what his intentions were makes it difficult to argue an offer of surrender.

The only angle I can think of may be if you have evidence that the tenant now has another primary residence. That they have notified utilities and council of a change of address (date of address change already having passed), along with photographic evidence that the property was empty and there is nothing in the property to allow a tenant to live there. No fridge, no food, no bed or bedding, no toiletries etc. It’s my understanding that an AST can only exist where the property is a principal primary residence. Realistically though, unless you fancy chancing your hand at a bluff as Simon suggested, you’re not going to throw good money after bad fighting the principle in court are you? Just change the locks back to the old barrell if you can & book a bailiff.

When these circumstances occur, as they frequently do in this business, your options are to spend the extra money and remove all risk and proceed with the bailiffs, or to make a judgment call as to whether there is enough evidence to reasonably interpret a surrender by the tenant. BUT you could be wrong and you may have to let the tenant back into the property and instruct bailiffs after all.

If you were wise and took photos when you entered you have nothing to fear from this as you acted in the honest belief the tenant had left on good evidence and there will be a record of your call I imagine should you need it that you took advice first.

I’ve been in your place a number of times and have done the same as you, after first taking a few extra measures. I always take extensive photos, and visit a number of times to record any changes. I put tape over locks and at the top of the door which will need to be removed for the tenant to enter, has the tape been disturbed and therefore someone has entered the property since your last visit? Is post being picked up? Is there any food, bedding, toothbrush in evidence? I photograph everything I do & the evidence at each visit which backs up your decision and the reasonableness of your conclusion of implied surrender & finally I make every effort to contact the tenant & their next of kin first by text, phone call (voicemail as they never answer) & email to inform them that I’ve observed the property to be empty and it appears that they have permanently left the property and I intend to change the locks in 7 days if they don’t contact me to inform me that they haven’t yet left the property. (I tell next of kin I’m making sure they aren’t on holiday or in hospital etc) If they aren’t coming back you won’t hear anything from them and you’ve covered your back from every angle.... Read More

Kate Mellor

14:59 PM, 1st February 2019
About 2 months ago

Notice period confusion for new tenant moving in?

As Ian has pointed out, if the fixed term of the agreement is 18 months that’s generally the minimum term, although some landlords will offer a tenant a longer tenancy which has a tenant only break option. Even if this is the case, it is likely that notice will need to run from 24th to 23rd of the month. It sounds though from the agent’s response that 18 months is the minimum term. If the tenants believe this is incorrect they should make an appointment at Their local CAB office and take their agreement along for some advice.... Read More

Kate Mellor

12:07 PM, 24th January 2019
About 2 months ago

Tenant Fees Ban - Examples

Can you recharge a tenant your referencing costs in the event that they fail the check due to non-disclosures or dishonesty on their application forms? They wouldn’t then be a tenant and it wouldn’t be a blanket fee. E.G. charge a holding deposit to all applicants, fully refundable on passing credit check. I suspect not, but it would discourage those trying it on, or applying for multiple properties as they don’t have anything to lose.... Read More

Kate Mellor

11:27 AM, 22nd January 2019
About 2 months ago

Tenant can't pay rent and advised to stay by Housing Association!

Reply to the comment left by Michael Barnes at 21/01/2019 - 22:47
Quite right. Just to clarify why I believe what I’ve said from a more legal standpoint and a less emotional basis, although I know many will disagree.
S 5(1) serves a crucial role in protecting both tenant’s and landlord’s rights. It is crucial that the tenancy continues for at least the following reasons:
1) The tenant’s right to challenge the eviction in court must be preserved until a final decision on the legality of the eviction is made if the tenant contests the eviction.
2) The rights and obligations set out under the tenancy must be maintained until the property is returned to the landlord. eg the landlord can continue to demand rent until the property is returned.
However, to misuse the law for one’s own ends is not necessarily preserved as a right. This law was not designed to be misused by a tenant who has no intention of challenging the eviction or even turning up in court and whose entire purpose in staying on is to delay a rightfully executed notice and avoid their contractual obligations (and probably gain several months rent-free accommodation).
My legal arguments for challenging the right of tenant to stay on carte blanche is the fact that to do so in the circumstances I’ve specifically mentioned would constitute an ‘abuse of process’, which is basically the misuse of an existing legislation for an unintended purpose. I would argue that the above would fit three of the examples given in the CPR 1998 as follows: ‘Pointless and wasteful litigation’, ‘Improper collateral purpose’ & ‘Delay’. I also believe that it constitutes ‘acting in bad faith’ which is basically dishonest dealings.
Sadly this usage of the law has become so prevalent and socially acceptable that no one bats an eyelid. I think you’d feel differently if a used car dealer kept your money or goods dishonestly and argued their right to keep doing so until you produced the bailiffs to make the collection.
The very fact that costs are awarded to the landlord in these cases proves the tenant was wrong in law to stay on in the property, If they make a genuine challenge then they’ve done so for an honest reason and whilst still wrong it isn’t an abuse of process. The fact that no intention to challenge exists from the outset to my logic more or less proves it is one. As there is no downside to councils only benefits they continue to insist on it.
I appreciate you & many others may not agree, I am not a lawyer and have only studied law as part of another degree. I just wanted to make the point that I do have a reasoning for my belief, as otherwise I’m just some oddball who seems to be claiming black is white.... Read More

Kate Mellor

10:30 AM, 21st January 2019
About 2 months ago

Tenant can't pay rent and advised to stay by Housing Association!

Reply to the comment left by Michael Barnes at 20/01/2019 - 23:41
Yes, thank you Michael. I understand a tenancy doesn’t end on the expiry of the notice period.

My argument is that HA 5(1) only becomes a genuine right, when the tenant has reason to believe that the landlord is in breach of contract, or hasn’t correctly served the notice. Then it’s for a court to decide which party is correct.

The tenant has a legally enforceable, contractual obligation under the AST to leave at the end of the correctly served notice period, hence the reason landlords can successfully claim their costs back from the tenant if they don’t abide by their agreement.

How can a legal obligation to do one thing coexist with the legal right to do the opposite?

It doesn’t, if the other party has met all their obligations under the agreement, then your obligations stand. BUT the fact is no one can stop you from breaking your agreement despite your knowledge that you have no legal grounds to challenge the eviction and awaiting the courts decision - and the penalty of costs awarded against you.

There are plenty of instances in law where the victim of a breach of contract has no legal remedy other than having a court decision, and you could argue we all have the right to breach a contract if we so choose, but we risk the legal consequences. We have the right of free choice after all, but I don’t believe having the ABILITY to do something is the same as having a legal right.

I don’t personally feel that councils have the right to force tenants to breach their legal agreements and put themselves into a position of taking on court & bailiff costs and going through the stress, humiliation & hardship of being physically ejected with their children and all they can carry into the street. There’s nothing RIGHT about that. But they do have the ability to do it.... Read More