Tenant in arrears but I am not on AST for my own property?

by Readers Question

9:47 AM, 7th October 2016
About 2 years ago

Tenant in arrears but I am not on AST for my own property?

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Tenant in arrears but I am not on AST for my own property?

Letting agents had found me a couple for a finders fee and they had a six month lease which was paid regularly on time. Then the 7th month rent was not paid, when my husband contacted the tenant he said the girlfriend had gone, but he wanted to stay there and he needed a new lease to take to the social, and he said as his son was going to come and stay 3 nights a week the social would pay the full amount. help button

We chased him up for 3 months and he just kept saying the social were dealing with it. The letting agent sent him a notice to quit and advised me that I had to wait until the six month lease was up even though he had not paid a penny. The notice to quit was due on 15th September 2016. He is still refusing to go.

I went to see him hoping that hearing my difficulties he would be reasonable, instead he threatened me with the police and two years jail time if I did not leave his property and told me that I am not the landlord my husband is.

My problem is that the letting agents have put my husbands name on the lease, but the property is in my name and during this period I have separated from my husband. I am also the registered landlord with council. The letting agents never gave us a copy of the lease, they are saying that they gave it to my husband by hand but he is saying he does not have it.

I have had great difficulties this year with health and personal and have moved out of a marital home and had to buy a property to live in with huge mortgage and am struggling to financial pay for the mortgage on the rental property and my new home. If I can not keep up payments I could lose my home as well.

CAB would not advise me as I am a landlord and I was told to go and see a solicitor.

A solicitor has advised me that as the lease is not in my name I would not be successful in applying for a summary cause summon to recover possession and arrears. He is suggesting that the tenant has no legal connection with me and I could raise proceedings against him to stop him entering the property. He is proposing to write to him in the first instant and then raising an action against him craving interim orders should he not leave.

I would like a second opinion as I can not afford the £1,000 in fees and outlays in case this does not work. I am under great financial, emotional and health strain over this issue could someone please help.

Avtar



Comments

Neil Patterson

9:52 AM, 7th October 2016
About 2 years ago

Hi Avtar,

I can't remember running across this exact scenario before so I am hoping someone has.

I don't know if your solicitors are, but as funds are limited I would recommend you consider tenant eviction specialists such as Landlord Action and the Sheriffs Office. It will cost, but will more than likely be a saving in the long run. Please see >> https://www.property118.com/tenant-eviction-2/

Chris Daniel

12:31 PM, 7th October 2016
About 2 years ago

Hi Avtar
If you were a member of a Landlord Association such as NLA, you could access their Advice Line and get any and All the help you need.
Members claim their fee back against their tax !

Graham Bowcock

14:14 PM, 7th October 2016
About 2 years ago

Dear Avtar

I am sorry that you are in a difficult position and it must be most stressful.

I am a letting agent and we had a possession case several years ago which the judge refused to hear because the landlord's name was different on the agreement to the ownership; this was the landlord's error in transferring it from one company to another without telling us. The tenant had made no representations so it was entirely down to the judge. Therefore, on this case alone, it would seem to be prudent to get things to match up.
Although really a job for a solicitor in your case due to the possession issue, we use notices under the Landlord and Tenant Act when, for example, a client buys a new let property or changes correspondence address. It is not really difficult to do.

Would your letting agent be able to help you? Did they check who owned the house before letting it? If they have got it wrong (based on what you/your husband told them) they may accept some liability and help in sorting things out.

Graham

Michael Barnes

0:17 AM, 8th October 2016
About 2 years ago

Sounds like the letting agent got it wrong in saying you had to wait until the end of the fixed term.

A section 8 notice on arrears can be issued at any time if the tenant is 2 months in arrears.

1. talk to the agent to see what they will do to help, given their incorrect advice earlier.

2. Talk to your husband and get him to transfer the tenancy to you (not sure how this is done), then issue S8 and S21 notices. S8 notice has shorter time before you can go to court.

money manager

17:51 PM, 9th October 2016
About 2 years ago

Reply to the comment left by "Michael Barnes" at "08/10/2016 - 00:17":

A tenancy agreement is a contract. A contract can only arise between two parties with the capacity to contract which it would appear the named "landlord" did not have. Does that not make the contract invalid and that the correct course should be to pursue eviction on the basis that that no valid tenancy has been created?

H B

20:48 PM, 9th October 2016
About 2 years ago

Reply to the comment left by "money manager" at "09/10/2016 - 17:51":

This is an interesting point. If the person who signed as landlord had no authority to act in that role then the contact could be considered ultra vires and the contract declared invalid.

However the person who signed was not an imposter but your husband and it may be the case that a judge would look through the actual signatory to the owner.

After all, if the contract was marked invalid, it would be a great way to get rid of difficult tenants.

money manager

8:59 AM, 10th October 2016
About 2 years ago

Reply to the comment left by "H B" at "09/10/2016 - 20:48":

My guess would be that as there was an agent they actually signed the contract on behalf of the landlord with authority. However, if the landlord named in the contract was not the landlord (I don't think it matters whether they were a husband or the man in the moon).

It was a "mistake" of identity and I believe void from outset; see http://www.inbrief.co.uk/contract-law/mistakes-in-contracts/


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