Tenant claims to have moved out and ex-partner has moved in – Please Help

by Readers Question

10:20 AM, 25th March 2013
About 6 years ago

Tenant claims to have moved out and ex-partner has moved in – Please Help

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Tenant claims to have moved out and ex-partner has moved in – Please Help

Tenant claims to have moved out and ex-partner has moved inI Just saw an article on Property118.com about the new “squatters” law and would like some advice with a tenant that claims to have moved out but now the ex-partner has moved in and refuses to leave.

My tenant was made redundant in December and got depression.  The guarantors paid rent in December and January and then in February the guarantors let us know she couldn’t pay rent and that they had been paying the rent for her. Then she had lost her job, she was ill and that they couldn’t afford to make any more payments.

The Social Services got involved as there were concerns for her kids and her ex-partner had already moved into the address to look after kids and unknown to us at time she had moved out to her sisters as she wasn’t allowed to be near kids on own.

Her ex-partner has paid half a months rent to help out with the arrears, but the neighbours complained about rubbish at property. I attend the property and found she had been living in a mess with black bags overflowing all over the house.

I arranged a visit with the tennant only and she agreed to clean up, but I was later contacted by the ex-partner who agreed to clean up the mess on her behalf, which was done. The neighbours informed me that no female had been seen at address.

The police then called to the address on a warrant to search for a firearm and although none was found the ex-partner was caught in possession of cannabis and given a street warning and again the tenant was not at the address.

The police called again a few days later as she had attended at address and an argument had ensued resulting in her removal to her sisters.

The police called again as she was harassing someone on Facebook. She was arrested and cautioned and taken back to her sisters.

Now the ex-partner has been in contact to say he has been advised by someone to stay at address until he is evicted. When we attend the property she is always there and her claim for back dated benefit has been stopped due to the fact they now know he is living at the address.

She was offered the chance to get out of the agreement with only paying what she owed up to that date and any damages if relevant which she refused. We will be going for an eviction, but do we put them both on it or just her and have to evict him separately?

What is the chance we will get any rent owed if we go to court to claim from the guarantors?

I wish I had never let my house out and I am what you would call a nice landlady and I am getting treated like this.

I have a letting agency, but any advice would be greatly appreciated. I am aware of the possession notice and then the eviction notices etc just anything else I should know that isn’t obvious would be greatly appreciated.

Thank you for any help

Gibbo

 



Comments

18:15 PM, 25th March 2013
About 6 years ago

Unless the tenant has surrendered the tenancy; she is still there.
Until she surrenders the tenancy you should be receiving LHA.
If there is an unauthorised party at the property you need to advise the council.
If they have suspended the LHA claim for whatever reason; you will receive NOTHING until she does.
You will need to evict.
ANY person there are the day of eviction will also be removed by bailiffs.
I have had a similar situation as this and Iost over £10333.00 in rent from the tenant.
Fortunately I had RGI on the tenant so was paid out ALL lost rent.
Clearly NOT having a RGI policy in place on your tenant or their guarantor may have been a business mistake!!
No doubt you used LA standard useless referencing procedures.
You should be aware as a LA that the ONLY referencing which carries ANY weight is that which is GUARANTEED to qualify the tenant or guarantor for RGI.
If you chose to take on a tenant or guarantor that failed a RGI check that would be your risk.
Clearly a HB tenant or their guarantor who failed a RGI check leaves you as a LL COMPLETELY exposed to the risk of NOT receiving; for whatever reason, the LHA.
As a LA surely you were aware of this risk.
OK if you did; but are you aware of the the average 9 months it takes to evict a tenant.
However you are where you are!
You just need to serve the S 8 and S21 as appropriate.
You must NOT accept any rent from this illegal occupant; even if partial rent as it will create an AST with him.
You need to ensure he gives the rent to the tenant who then gives it to you.
Perhaps the professional bodies that you should be a member of might be able to give you legal technical advice.
Perhaps this experience will cause to WARN ALL your LL clients as to the risks they face taking on ANY tenant or their guarantor on whom they don't have RGI in force!
Most LL aren't aware of the issues and NOW it seems even LA are in the same position!!
This is a learning experience for you and may well or rather SHOULD change your business practices if you do not wish to face these risks again.
Essentially you are in a bit of a spot as you CANNOT EVICT this tenant until you go through the lengthy eviction procedure.
LL are increasingly aware that their whole business model is fundamentally flawed if they CANNOT afford to pay mortgages for at least 9 months until a tenant is evicted.
Therefore all the supposed cashflow advantages of HB tenants are wiped out by ONE tenant NOT paying rent.
You would be best to advise your LL and yourself NOT to take on tenants who cannot obtain RGI.
You will be stuck with this situation until eviction occurs and you can bet that the property WILL need a full redec!
Yours is a case history and warning for ALL LL who should take note of what has happened to you.

Winsome P

18:25 PM, 25th March 2013
About 6 years ago

I met a woman trying to get out a group of sophisticated stealer of rent and houses and she very wisely at the end of a long delayed eviction process had a claim put on both instead of just the one so that at least there was a chance they would not ruin another landlords life.
Belt and braces and given that the one in the house is being advised to stay they could get difficult. Experts to ask? - National Landlords association has worked very well for me and they hear many more of these issues and solutions

Industry Observer

8:13 AM, 27th March 2013
About 6 years ago

Paul I am afraid much of your advice is not entirely accurate, as follows:-

LHA MAY be claimable but I doubt it, not if she is not living there as permanent address even if the tenancy is ongoing. This is no different to a Hsng Assn offering a property to a prs tenant and the LHA switching the payment to the new address.

Where is your agent in all this may I ask?

Forget advice about Guarantors and rent protection policies the only people who can be covered by such policies are actual named tenants

The Guarantors are still liable as is the original tenant unless and until you accept surrender or, of course, the end date of the tenancy. Is it still in the fixed term what is the end date? If it is periodic then of course it affects which sextion 21 notice you issue.

You do not name any other occupier in any papers, notices or Court Summons etc, they are referred to as "persons unknown" or "any other opccupiers" or even "A N OTHERS" etc

You need legal advice on this case and do not handle it on your own. It will be money well spent and you will probably find the first solicitor letter talking in strict tones will end up frightening off the occupier and provided the ex tenant has asked you to accept surrender then you can lawfully change the locks.

20:23 PM, 27th March 2013
About 6 years ago

I O
Agreed RGI can ONLY be on the tenant or their guarantor.
Sorry if I wasn't clear with that.
LHA WOULD be payable as that is her permanent address as far as the LL is concerned.
Unless the tenant returns keys and signs a surrender letter then she is still there.
It doesn't matter WHAT the tenant advises as to her whereabouts.
This as any tenant can lie and when the LL takes back the property she attempts to move back in and has the LL arrested for wrongful eviction.
NO LL may enter the property unless the tenant gives permission; unless there is an emergency,
I agree about legal advice; cases out of the ordinary usually benefit from a solicitor input.

Industry Observer

20:54 PM, 27th March 2013
About 6 years ago

Paul

My point is that RGI can only be on the tenant and NOT the Guarantor. I have never heard of a case where it can be as far as I am aware no Guarantor can be covered directly under a RGI policy. The Guarantor is referenced, signs the Guarantee document and so on. But the guarantee is on the tenancy and the tenants named on it, and only if they default can a claim be made.

By implication if the tenants cannot pay and the guarantor does not then there will be arrears but they are tenant arrears. The Guarantor is simply not discharging their liability.

LHA will be payable when the LHAS office deems it is Paul not when a Landlord would like it to be.

21:42 PM, 27th March 2013
About 6 years ago

My RGI is payable on a guarantor.
Appreciate not all RGI companies operate like that.
If a tenant fails a RGI checks and the guarantor passes; when the tenant doesn't pay I claim and get paid.
I think the RGI company pursues the guarantor but I don't care what they do as I get paid irrespective.
And yes I agree about LHA; but if the tenant has not got a claim elsewhere then LHA is still payable on the original address unless the tenant advises otherwise or5 eviction occurs.
Also if the council makes enquiries and the tenant does not respond then the claim is suspended.
When UC comes in that will create a whole load of other problems.
The problem of council tax will impact upon these tenants as they remain liable for CT until the tenancy ends.
They can advise the council that they are no longer at the address but if the the council tax dept aren't advised the tenant is still liable.
With the advent of council tax to be paid by tenants this will cause tenants big problems.
They will perhaps realise that until they surrender then they are liable for CT.
With no LHA being paid no CT is paid causing big problems for the tenant, they will be in Magistrates Court following arrest.
I'm just glad i don't take on HB tenants; they are more trouble than they are worth!
UC is going to be nightmare for HB LL.

r01

8:09 AM, 28th March 2013
About 6 years ago

There are many reasons why you are in this situation, it sounds like failure to regularly inspect the property from the outset is amongst them.

You are in the doo-doo now and I won't go through the various legal aspects but will offer three bits of advice from my own experience.

I. Don't trust the advice of amateurs, no matter how well meaning & helpful they are trying to be. Do your own research. When I was a new landlord many years ago I had dealings with Tessa Shepperton. I have no affilliation but she was very helpful and she has a blog where she gives limited professional advice. You might find her site useful:- http://www.landlordlawblog.co.uk/about/

2. Contact a specialist landlord's solicitor for advice to ensure you do things correctly otherwise you could inadvertently extend the process. If you had rent guarantee insurance and took out the legal protection insurance you can use that, if not you may have legal protection with your own home insurance policy. Use it if available.

3. Start a small claims eviction process as soon as humanly possible. I would write off any unpaid rents etc as claiming this will simply cost you yet more money in court/legal fees. It is unlikely you will see any money from these people unless they are property owners themselves as they have nothing to lose. And don't think the bailiffs will sieze goods to pay for your claim as from my experience they won't. Most tenants have nothing of any real value anyway.

Draw a line, get them out and move on before it totally engulfs you, driving you mad and making you bitter. Above all learn the lesson (whatever you have lost is almost certainly less than a professional course would cost you), and ensure you run a much tighter rental regime in future.

Good luck, R

Industry Observer

8:25 AM, 28th March 2013
About 6 years ago

Paul

You are linking and confusing different but related elements of your RGI.

No way is the Guarantor named as an insured party and they will usually not be named in a RGI claim form because there is no entry there for them to be so named. The simple truth is you have a Guarantor who has been referenced and passed otherwise you cannot get RGI on the tenants.

The insurer can chase who they like but you DO NOT have RGI on the Guarantor.

You are also wrong on the LHA. I have had years of experience of this (you apparently do not take HB/LHA tenants so how you can now speak with authority I do not know.

But I can and assure you as soon as the LHA knows that a tenant is no longer resident at an address - the tenant may well still be liable for rental payments - but soon as they know they are living elsewhere if a LHA claim has been made in respect of that new address they will switch payments.

If no second claim is made you may well continue to receive LHA payments (or the tenant direct) but once the date is known to the LHA that the tenant no longer resided at the property the LHA will stop payments and start a recovery process for the date they were not in occupancy.

LHA can be paid on two properties for a limited time and in very controlled circumstances but that is very rare as well.

1:04 AM, 30th March 2013
About 6 years ago

IO;
Perhaps you misunderstand.
ANY guarantor that I have because the tenant failed the RGI check IS covered by the 2nd RGI check that is carried out on the guarantor.
They effectively become the person fully liable in the event the tenant doesn't pay rent.
If the tenant refuses to pay rent I just make the RGI claim and then the guarantor is pursued by the RGI company.
What they do is nothing to do with me.
That is the beauty of the RGI company I use!
Of course if a LHA tenant claims against a new address they have effectively surrendered the tenancy at the old address.
The LL then takes over the property and kicks out anyone in there or has the police remove them as squatters.
If the LL has received rent from anyone other than the tenant; he may have created a Fixed Term AST with the person who gave him some rent monies.
If the person on LHA is still within the fixed term period a LL may via the County Court endeavour to recover the full 6 months rent.
An impossible aspiration; so most LL don't even bother trying!

Industry Observer

8:57 AM, 30th March 2013
About 6 years ago

Paul give me some credit for my 20 years please!!

I think it is you that misunderstands as you initially referred to the guarantor being insured.

Even the tenants aren't insured, the Landlord is

Of course the guarantor is referenced, but that doesn't make him insured, just liable through the contract he guarantees for tenants then pursued by the insurer.

I repeat - no guarantor is insured in the sense you mean it

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