Here is a blog clinic question from Moneca who is a landlord
My (now ) ex partners lettings agency has always handled the tenants/ tenancy’s of my one bed flat, advertising and finding tenants, doing credit checks, signing them in, managing any probs, late rent payments etc.
They found and moved the current tenant in who is on HB and he’s been a few days late on several payments but they were paid eventually. The tenancy is an assured shorthold tenancy for 3 months from last Oct and now rolling as a periodic tenancy, but he gave notice in mid April that he wanted to leave.
The agency explained that he needed to give notice on a rent day so notice started on 8 May expiring 8 June. He said he couldn’t pay the last months rent so instructed us to use the deposit as the last month’s rent which we were not happy about but we did as instructed as clearly I cannot be without rent.
The agency didn’t instruct me to pay it into a deposit scheme and didn’t provide me with a copy of the tenancy until after 5 months into the tenancy. Needless to say the tenant despite giving notice has not moved out. We agreed a date to move out, he allowed the agency to show prospective new tenants around and a new one paid a holding deposit and was ready to move in on 9 June.
But the old tenant hasn’t moved out and is now refusing to move out saying it was the agency’s responsibility to find him new accommodation when it clearly wasn’t.
He said he was moving to his brother’s and confirmed the move out date. Now the agency is saying to me that they’ve done all they can and it is not their problem. They say I didn’t have a managed letting and that I should have taken a different level of service, but this was an informal working agreement with my ex-partner who’s agency always dealt with this letting.
I am not sure what remedy is open to me now. I called the HB department in April to inform them the tenant was not paying his rent and that he’s said he’s spent the money to live on. They said they’d suspend his claim and would contact him but I don’t know what has happened since.
What action should I now take to recover rent and possession? I am now at a massive financial loss as I’ve lost the incoming tenant and am not receiving rent from the current defaulting tenant.
I’ve done a bit of research and see that I can do one of two things – in these circumstances, do I serve S21 or S8?
First of all, whenever you use an agency to manage your properties it is always best to have a proper agreement setting out what they will do (and what you will pay them for) even if you are friends. Otherwise things can get difficult if it all goes wrong.
So far as evicting the tenant is concerned, you need first of all to find out whether the tenancy deposit has been protected or not. If it has, then check whether you can prove that the prescribed information was served on the tenant.
If the answer is yes, then my advice would be to serve both notices. You will find a lot of guidance on this blog to help you, and if you need more help you will find all the notices and a detailed ‘Rent Arrears Action Plan‘ on my Landlord Law site for members (membership starts at £20 pcm – see more >> here).
If the tenancy deposit is not protected (which sounds as if it is the case) then you have a problem.
The first thing to do is to protect the deposit as soon as possible and serve the relevant notices. This should be done before you do anything else.
Note that as you have not protected the deposit within the 30 day time limit (or by the 6 May for deposits paid before the regulations changed in April), you will almost certainly be in a position where your tenant can sue you for the penalty at any time during the next six years. The agency will also be liable if the deposit money was paid to them.
You may need to refund the deposit money to the tenant before you can use the section 21 eviction route. You will find more about this >> here and elsewhere on this blog.
I would suggest you start taking action as soon as possible, as the ONLY way you can evict the tenant and put a paying tenant in his place is by getting a possession order through the courts. This can take five months or more.
Note however that if he served a valid notice to quit on you and then failed to vacate you may be entitled to >> double rent. This may be useful if you are bringing a claim for possession based on unpaid rent and also as a counterclaim to any claim he may make against you for the penalty for non protection of the deposit. Otherwise a successful claim for the penalty may wipe out your rent arrears claim (and your ground for possession).
As the agency should have advised you about protection of the tenancy deposit you may have a claim against them for negligence.