Here are some questions to the blog clinic from Jose who is a landlord
1. Can I use the tenants secured deposit to pay back his arrears?
2. Out of trust, our contract was signed by both parties without a Guarantor though there is supposed to be a provision for it. Now, I asked him to provide a Guarantor because there are arrears and he refused. Is the contract valid? If still yes, how can I use his refusal to my advantage if there is any?
3. What is really the definition of “arrears”? My tenant got a one month rent deposit. Is it the actual amount he owes less the deposit?
4. How can I evict a tenant with an arrears of not less than two months, during the term of the contract without any other reason. Right now she only pays whatever and whenever the Council pays him?
Here are some answers:
1. The deposit should not be used until the tenants have moved out, but if there are rent arrears at that time then, yes, it can be used for this. Always assuming the terms of your tenancy agreement provide for this.
2. I am afraid that if you did not insist on a signed guarantee at the time the tenancy was signed it is too late now.
Generally the reason a guarantor signs is because they want you to give a tenancy agreement to the tenant and the landlord will not do this without a signed guarantee. However here you have already given the tenancy to the tenant, so there is no reason for anyone to sign a guarantee.
If the person who was going to be the guarantee was not requred to sign before the tenancy agreement was signed by the tenant there is no way you can force him to do this now.
3. The deposit should not be included in any calculation of the rent arrears during the tenancy. It is only used AFTER the tenancy has ended and the tenant has moved out.
So if your tenant has failed to pay one months rent she is one month in arrears. The fact that it would get paid off by the deposit when she leaves does not affect the situation now.
Rent is deemed to be in arrears after midnight on the payment date.
4, You need to serve a section 8 notice, and then issue proceedings for possession through the courts If you want to do this yourself you will find full details in my ‘do it yourself’ eviction kit, which you can read about here.