Serving notice on a none paying DSS tenant

by Readers Question

15:10 PM, 13th January 2017
About 2 years ago

Serving notice on a none paying DSS tenant

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Serving notice on a none paying DSS tenant

I am after some advice please. I am a relatively new landlord who owns 3 properties in a partnership with a business colleague of mine. notice

We are trying to run a professional service and look after our tenants as long term we hope they will look after us. One of our tenants is DSS and has her mother listed as a guarantor on the AST which she signed in September. After 5 months she is now refusing to pay the rent claiming mould upstairs is a result of poor maintenance on our part.

We bought the property in September 2016 and agree to carry on her tenancy as she had been in the property for 12 months. We had a Damp and timber survey completed on the property and had some plastering work completed as part of a mortgage retention to stop existing rising damp.

I have inspected the property and believe the tenant is causing the mould issue upstairs due to showers,drying clothes,not heating the property effectively and not ventilating using the windows. We have a break clause in the AST that we can serve her with 60 days notice in the first 6 month period. She is now refusing to pay rent, her guarantor is ignoring our requests and we are at the stage where we feel we need to write to her and serve the 60 day notice.

We failed to give her a copy of an EPC, Gas Safety Certificate and guide to renting due to inexperience even though we do have these documents and they are all current and in date.

Any thoughts that some of you who have dealt with this in the past would be greatly appreciated.

Thanks Ian.

 



Comments

Neil Patterson

15:16 PM, 13th January 2017
About 2 years ago

Hi Ian,

As novices I think you know you have made a few mistakes here so I would get the professional in if I was you. Please see >> https://www.property118.com/evicting-tenants/

And Deregulation act details below:

Retaliatory eviction

The Deregulation Act 2015 contains provisions suspending the operation of section 21 in order to protect a tenant against retaliatory eviction.

Retaliatory Eviction occurs where a landlord takes steps to evict a tenant because the tenant has complained about the condition of the property, rather than carry out repairs.

The new process means that the tenant has to put in writing to the landlord his/her complaints about disrepair. The landlord has 14 days to respond to the tenant, setting out when they will access the property, look at the remedies and carry out repairs.

If the tenant isn’t satisfied and the landlord hasn’t carried out the repairs, the tenant can make a complaint to the local housing authority. Local councils have been given the power to serve an enforcement notice on the landlord, setting out “a reasonable timescale” for improvement works to be carried out. Landlords served with an Improvement Notice cannot issue a section 21 within six months of an enforcement notice being served.

What laws have changed which affect landlords?

With more and more people moving into rented accommodation, the government has put into law better protections for tenant. The law also provides landlords greater clarification on their responsibilities concerning the protection of tenant deposits.

Below are the key changes that impact landlords.

The Energy Performance Certificate (EPC)
Tenancy Deposit Protection
Additional Information Relating to Prescribed Information
The Section 21 Notice
Retaliatory Eviction

Deregulation Act 2015 tenancy deposits

The requirement to protect a tenancy deposit taken for an assured shorthold tenancy in England and Wales was introduced on 6 April 2007, following its inclusion in the Housing Act 2004.

Deposit protection legislation was introduced because the government recognised many deposits were being unfairly withheld at the end of a tenancy. So the aim behind the Tenancy Deposit Protection is to raise standards in the lettings industry and ensure tenants are treated fairly at the end of the tenancy.

The legislation covers virtually all new assured shorthold tenancy contracts used by letting agents and landlords to let a property in England and Wales.

Since the Tenancy Deposit Scheme (TDS) legislation came into force, there have been a number of cases before the courts in which the wording of the legislation has been under scrutiny. These cases include Superstrike Ltd v Rodrigues and Charalambous v Maureen Rosairie Ng.

But overall the Deregulation Act 2015 has provided much needed clarification on the steps that a landlord must take to comply with TDS legislation.
Deposits taken before 6th April 2007 and tenancies that became periodic before April 2007

Deposits don’t need to be protected if a tenancy deposit was received for a fixed term tenancy before 6th April, or if the landlord holds the deposit against a statutory periodic tenancy, which also started before April 2007.

However, if a landlord wishes to gain possession of the property under Section 21 of the Housing Act 1988, the deposit must be protected and the Prescribed Information issued to the tenant prior to serving the Section 21 notice.

Landlords will not face any financial penalties for non-protection of the deposit.
Deposits taken before 6th April 2007 and tenancies that became periodic after April 2007

Deposits taken before 6 April 2007, for tenancies that are still running and have moved onto a periodic tenancy on or after this date, now need to be protected in a Tenancy Deposit Protection scheme. If a deposit remains unprotected, the landlord could potentially face a fine.
Deposits taken on or after 6 April 2007

Landlords who took a deposit on an assured shorthold tenancy (AST) after 6th April 2007 and correctly protected and served the Prescribed Information to their tenant do not need to reissue the Prescribed Information to the tenant on future renewals of the AST, or if the AST rolls into a statutory periodic tenancy.

This is so long as the tenancy details haven’t changed (i.e. landlord, tenant and property information) and the deposit remains in the same tenancy deposit protection scheme.

Prescribed Information can include details of a person representing the landlord. The act confirms that where an agent has protected the deposit on behalf of the landlord, the agent’s contact details may be provided in place of the landlord’s.

Deregulation act 2015 section 21

On 1 October 2015 further provisions in the Deregulation Act 2015 came into force to protect tenants against unfair eviction when they have raised a legitimate complaint about the condition of their home.

The legislation also requires landlords to provide all new tenants with information about their rights and responsibilities as tenants. This information includes such detail that a landlord cannot serve a Section 21 notice unless they have complied with certain legal responsibilities.

The government also introduced a new standard form that landlords must use when evicting a tenant under the ‘no fault’ (section 21) procedure. This makes it more straightforward for landlords to evict a tenant where it is legitimate to do so.

These provisions apply to all new assured shorthold tenancies that start on or after 1 October 2015. However, as of 1 October 2018 the provisions will apply to all ASTs in existence at that time.

1. Compliance with prescribed legal requirements

A Section 21 notice may not be given if the landlord is in breach of any legislation which relates to any of the below.

The condition of dwelling houses or their common parts
The health and safety of occupiers of dwelling-houses
The energy performance of dwelling-houses.

This means all landlords must provide tenants with an EPC and a Gas Safety Certificate before the tenancy begins. If at a later date the landlord wants to serve a Section 21 notice on a tenant, he will need to prove the tenant has been provided with these two documents. If they don’t do this then the landlord wont be able to use the section 21 notice.

2. Requirement of the landlord to provide Prescribed Information

At the start of each AST, landlords are now required to provide tenants with a copy of the Department for Communities and Local Government’s booklet entitled ‘How to rent: the checklist for renting in England’.

3. Prescribed form of Section 21 notices

The new Section 21 notice combines the two previous section 21 notices into a single use notice for both fixed-term and periodic tenancies. It‘s for use with new tenancies starting after 1st of October 2015 and all tenancies (regardless of when they started) from 1st October 2018.

4. Timing and Lifespan of a Section 21 Notice

From 1st October 2015, a landlord is now no longer able to serve a Section 21 notice within the first four months of the contractual term of the tenancy. This is to stop landlords and their agents serving notice at the start of a tenancy if they want to finish it at their convenience.

A Section 21 notice now also has a lifespan. Once a Section 21 notice has been given under a fixed term AST or a periodic AST, possession proceedings must be started within 6 months of the date the notice was given. If the landlord doesn’t do this then the possession notice is invalid and a new one will be needed.

Ian Thornley

16:12 PM, 13th January 2017
About 2 years ago

Thank you Neil,

The information you have provided has been really helpful and provided some much needed clarity around the legal issues we are likely to face.
I am confident lessons can be learnt from our mistake and this site is providing me with a great education for the years ahead.

Gary Dully

16:33 PM, 13th January 2017
About 2 years ago

You are being treated with contempt, by a tenant who thinks they know the law.

1. The tenant is in breach of her contract with you by refusing to pay the rent, for whatever reason.
2. Rising damp does not go up an upstairs wall, only a defective crack allows water ingress.
3. Get a humidity reading in each room, by buying a digital hygrometer off eBay and noting it down.
4. Get a couple of cheaper meters from eBay, (not digital), as they will require batteries and they will steal them for their TVs remotes.
5. Leave them at the property.

I have just issued a warning letter to my tenants in a HMO in Crewe, for their total stupidity in regards to a lack of ventilation and drying laundry within their own rooms and not the designated places set up in their tenancy agreement.

They also said their house was faulty and I immediately told them I was fecking going to beat the financial crap out of them for their total stupidity and reminded them that the fact they had decided to hang laundry over their radiator was enough reason to make my face go purple and shout swear words at them.

But they haven't gone on rent strike, because if they did, they would be evicted for breach of tenancy.

I have since purchased a simple Pengu Hygrometer (£5) each from eBay and told the tenants that if the needle goes above the safe purple area they have to open a window until it falls within it and if it's below the safe purple area they will find that a cactus will love the place.

Laundry has to be dried in a ventilated area, no exceptions!

I bought 4 jumbo car sponges and 4 bottles of mould remover and gave them a letter that said I will be calling next week and if the mould is not removed, I will be escalating my actions.

I have since been emailed and texted by the tenants that everything is now cleaned up and fine.

As for your tenant, don't listen to bullshit, get the mould problem fixed and demand the rent in writing, promptly followed by serving a section 8 notice on grounds 10 &11, and grounds 8 if over 2 months arrears.

Once no mould, issue a section 21 notice anyway just for the fun of it and teach these idiots not to mess you about.

Once the section 8 notice has expired, evict them through the courts if necessary and get a tenant who won't destroy your property.

Run your business as if it's a car hire company, if they won't look after what you hire to them, get another hirer.

You can't afford sentimentality in this industry anymore.

Gary Dully

16:46 PM, 13th January 2017
About 2 years ago

Sorry, I forgot about the deposit etc,

You can't issue a section 21 now, but you need to get these documents sent and the deposit protected or refunded asap.

Your tenant is happy to stay, provided it's rent free or mould free, so I would get the humidity measured fast and get some ventilation in the house to get rid of the mould.

Ian Thornley

17:35 PM, 13th January 2017
About 2 years ago

Thanks Gary,

The deposit is protected but was done over 30 days after the start of the ast, again a beginners mistake on our part so not sure where that sits on the section 21 notice? I have been in contact with fcc paragon debt recovery and first impressions were really good. All the epc gsc and rent guidance docs have been sent out today along with a 7 day demand for payment to both tenant and guarantor explaining that failure to comply will result in a third party getting involved to recover the money owned. I am confident the mould is being caused by the tenants and will take your advice on the equiptment you have previously used. Thank you for your support.

Gary Dully

21:17 PM, 13th January 2017
About 2 years ago

Reply to the comment left by "Ian Thornley" at "13/01/2017 - 17:35":

Ian, can I make a suggestion?

When I first started as a landlord, I believed what non paying tenants told me.

15 years later, I trust nobody that I rent to, if they are in arrears.

So my suggestion would be that if you end up evicting, do it yourself, because you will benefit greatly from the learning experience of the forms, the process and the costs involved.

It's not as hard as people think, but the process is a very strict one.

There are various web sites including this one with good advice, should you decide to take the plunge.

Ian Thornley

23:10 PM, 13th January 2017
About 2 years ago

Reply to the comment left by "Gary Dully" at "13/01/2017 - 21:17":

Thanks again for your advice Gary,

We have a good relationship with all our other tenants and so far being a landlord has been a positive experience.

I knew this day would come eventually and if it helps me get my affairs in order that bit quicker to be a better landlord I am glad of the experience.

I am sure after 15 years you have heard your fair share of non payment excuses and I agree with your views around the lack of trust that must follow.

FCC Paragon only deal with the debt recovery side of the issue but it is something I believe must be tackled immediately to possibly limit the inevitable losses for the coming months.

I agree with you that dealing with any section 21 notice would be a worthwhile experience for me and my business partner and we intend to do our research now before making anymore naïve decisions.

Thanks, Ian.

H B

8:56 AM, 14th January 2017
About 2 years ago

"and had some plastering work completed as part of a mortgage retention to stop existing rising damp.

I have inspected the property and believe the tenant is causing the mould issue upstairs due to showers,drying clothes,not heating the property effectively and not ventilating using the windows."

I would be careful about jumping to conclusions or at least be very sure that you are correct. Clearly the property had some damp issues previously.

The shower is a source of mould if the tenant does not open the window and evidence of this will be most concentrated in the bathroom itself.

How bad is the mould? It could be a sign that some flashing needs replacing. My only experience with severe damp was a flashing-related issue, not ventilation.

Thom Hill

12:01 PM, 14th January 2017
About 2 years ago

Hi Ian,

Getting some professional advice before starting a new business venture like this will normally pay dividends in the long run.

The first thing to point out is that whilst you have now protected the deposit, your tenant still has a civil claim against you for failing to protect it in time. There is nothing you can do about that and she has several years in which to decide whether she claims or not. The penalty is non-negotiable and is set by a judge at between 1 and 3 times the deposit.

The second thing to point out is that depending on which benefits your tenant is getting, you have various options to recover the ongoing rent and/or the rent arrears from her benefit directly without a court order or any costs. You would need to work out whether she is getting Universal Credit or some combination of older benefits such as Jobseekers Allowance, and Housing Benefit There are various forms to fill out depending on all of this and there are pros and cons to this but it might be a route to limit your losses.

The third thing to point out is that you probably don't want to try a DIY eviction. You have already made half a dozen costly mistakes and there is plenty of scope for you to compound those in eviction proceedings if the tenant is minded to get fighty. One of your mistakes is the late service of the EPC etc. There is an open legal question about whether this is sufficient to validate a s21 notice or whether failing to serve at the outset invalidates every s21 for the entirety of the tenancy. You probably don't want your first day in a possession court being sat across from legal-aid funded counsel and being expected to address this point. Save the DIY for cases where you already got the basics right.

Good luck with it all

Ian Thornley

13:22 PM, 16th January 2017
About 2 years ago

Thanks Thom,

We have now had contact from the tenant after issuing a letter for payment and informing her and her guarantor that a third party debt collector will get involved if the rent is not paid. Turns out the real reason for none payment is her overspending at christmas.

I have arranged a visit to look at the mould problem again so I can take moisure readings etc and she is agreeable to sign an application form for payment of local housing allowance to the landlord.

I will see how we get on.

Thanks for comments.

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