Serving notice on a none paying DSS tenant

by Readers Question

15:10 PM, 13th January 2017
About 4 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

Highland Lass McG

11:26 AM, 17th January 2017
About 4 years ago

This thread has made me question my understanding of a tenancy agreement!

Can a landlord set up a 6 month tenancy agreement and, without giving any specific reason, on the 4th month give 2 months notice to terminate , so the end date is when the 6 months are up? In this case the tenant must leave? There is no need to issue any Section 21 or 8? If they are in arrears the maximum will be at worst 6 months rent? If they make spurious (or genuine) complaints about the condition of the property they still have to leave after the 6 month lease comes to an end?

This has never happened with us but it would be useful to have clarification.
I always thought a tenant would have to leave when the lease expires, otherwise they are trespassing. If they refused to move would we have to issue Sections 21 or 8?

They would become squatters and, as this is no longer permitted in a residential property, the police would remove them?

I appreciate your advice so we will be prepared if it ever happens in the future.

Thom Hill

19:48 PM, 17th January 2017
About 4 years ago

Highland Lass-

If a tenant sticks around after the end of the tenancy agreement, it becomes a statutory periodic tenancy - i.e. a rolling month on month tenancy. You have to serve a s8 or s21 notice on them if you want them to leave. If they won't leave then you have to go to court and obtain possession. If they still don't leave, you have to get a warrant to evict them. Until the court bailiffs have executed that warrant, they are neither a trespasser nor a squatter.

If you tried to send the police round a property I was renting just because my tenancy agreement had come to an end, I would be suing you for attempted illegal eviction and breach of quiet enjoyment and I would win.

A s21 notice has to expire after the end of the fixed term. For a Deregulation Act tenancy (i.e. starting on or after 1 October 2015), you can't serve a s21 notice within the first four months of the tenancy. In principle this means that its possible to serve a s21 which expires the day after a six month fixed term but it would be difficult to time it properly.

Whether there are or aren't complaints about the state of the property is moot as far as s21 goes. In Ian's case the tenant is withholding rent to, at least nominally, pay for repairs. If this stuff gets to court then Ian would sue for rent arrears and the tenant would try to counterclaim for disrepair. The only time disrepair will stop a s21 is under the laughably specific retaliatory eviction provisions under the Deregulation Act.

I would strongly encourage you to read up on this or look for some training. This stuff is very important.

Highland Lass McG

0:03 AM, 18th January 2017
About 4 years ago

Reply to the comment left by "Thom Hill" at "17/01/2017 - 19:48":

Hi Thom
Thanks a lot for the details. I appreciate it. It's scary stuff being a landlord!

Ian Thornley

9:29 AM, 18th January 2017
About 4 years ago

I would just like to pass on my thanks also for your detailed comments Thom. I feel much clearer about the situation over last few days.
Does anyone know if my case had to go to court after the end of the tenancy how a judge would view the late protection of a deposit. The fine im happy to take on the chin as a learning curve but surely it would not be grounds to let a tenant remain who had been served notice ignored it, not paid rent and who was now taking up the time of the courts?
Thanks

Highland Lass McG

11:37 AM, 19th January 2017
About 4 years ago

Can I suggest a slightly different scenario:
Our daughter rents a flat from us (there is no mortgage) and has a lodger. When the 6 month lodger agreement expires on 1 March our daughter is proposing a new agreement with the lodger for a further 6 months, with an increase in the rent.
If the lodger does not agree and also refuses to leave, how does our daughter get her to leave, as the lodger is a licensee and Section 21 would not apply as she is not a tenant?

It may all work out smoothly but it would be useful to know what to do in advance if it didn't.

Thanks a lot for all advice

Thom Hill

22:18 PM, 19th January 2017
About 4 years ago

Reply to the comment left by "Highland Lass " at "19/01/2017 - 11:37":

Your daughter's lodger is (probably) a licensee and an "excluded occupier". She need only give "reasonable notice" requiring the lodger to leave. What counts as "reasonable notice" should ideally be defined by the license agreement and she must make sure she follows this.

Thom Hill

22:27 PM, 19th January 2017
About 4 years ago

Reply to the comment left by "Ian Thornley" at "18/01/2017 - 09:29":

The Judge must award between one and three times the deposit. Between those two figures is down to the Judge on the facts of the case. Assuming you have evidence to show (a) you are a fairly new landlord, (b) it was a genuine mistake (c) you've changed your practices and it won't happen again, you would expect the minimum award or there abouts. The purpose of the award is to penalise the landlord for breaking the rules, rather than to compensate the tenant. I don't think their conduct would matter too much.

The claim would be separate from possession proceedings - it would probably happen after the tenant has moved out (if it happens at all). Your late compliance shouldn't be a defence or barrier to a possession claim under s8 or s21.

Ian Thornley

8:27 AM, 20th January 2017
About 4 years ago

Thanks Thom,

I really appreciate the feedback on this.

Kind Regards Ian.

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