Here is a question to the blog clinic from Teresa who is a landlord:

Tenants deposit was not put into a deposit scheme.

Tenant refuses to leave house and has not payed rent for over 14 months. we have had previous court sessions ( tenant must have wrote the book on how not to get evicted, he used every excuse going, benefits not sorted,post never receives it, lost papers etc) and judge always accepted his lies bearing in mind there has been a different judge time and case adjured again.

Ran out of money to continue court action. He does not accept registered mail and refuses to answer door.

How do I evict him? Tenancy ended Nov 2010

The FIRST thing you need to do is to protect the deposit.  If you do not it will put you in the wrong and your tenant will be able to wrong foot you in any claim for possession.  Do it today.  As the fixed term has ended you will need to use the DPS as I don’t think the other organisations will accept it.

Then you will need to either proceed with your current claim for possession or end that and start a new one (although you need to be careful about ending litigation as it may authomatically make you liable for your opponents costs).

The ONLY way you can legally evict a tenant who will not move out voluntarily is via a court order for possession.

Most solicitors will be reluctant to take on a case which has already started, and if they do the costs will generally be high.  However you may be able to get some guidance on eviction proceedings from my do it yourself kits, which you can read about here.

By the way, it was only the fixed term which ended in Nov 2010.  The tenancy will have continued as a periodic tenancy.

Tenant not paying rent, issued a notice to quit giving 4 weeks notice no response, guarantor also sent rent invoice no response from either, what can I do?

Follow the proper procedure.

Unless your tenancy is a common law one, a Notice to Quit is not the correct notice to use.  You need to either use a section 21 notice, or a section 8 notice citing rent arrears.

Neither of these notices has a four week notice period.  The section 21 notice period is not less than two months and the section 8 notice is (for serious rent arrears grounds) not less than two weeks.

Once the notice period has expired you will then have to issue court proceedings for possession.

So far as the guarantor is concerned, if he fails to pay you can bring a claim for a money judgment in the small claims court.

Note that I have a rent arrears action plan on my Landlord Law site which is specifically designed to help landlords with tenants in arrears of rent.

I am a landlord with a tenant that has accumulated rental arrears of c. 7 months. After serving a section 8 notice, I finally have a county court order for possession for the property on 27 December 2011.

Unfortunately I am getting conflicting views from a number of solicitors as to what actions I am able to take on the day if the tenant has not vacated the property and what to do if the tenant is not at the property but has left possessions at the property.

I am looking to see what people’s experience has been with respect to my ability as the landlord to change the locks on the property if I find that the tenants are not at the property but they have either:

(a) left all their possessions at the property

(b) left only some of their possessions but removed key items such as beds, sofas etc.

(c) left nothing at the property.

In either of these cases, if the tenant nor any other person is at the property am I safe to assume possession of the property or do I need something from the tenant confirming they have vacated the property.

To the extent that I am legally allowed to change the locks if possession are left behind at the property, what obligation am i under with respect to these possessions?

Hi Ramnik, sorry about the delay in putting your quesiton online but we have a bit of a backlog just now.  I expect you have sorted this out now but I will make a few comments anyway to help others in the same situation.

The first thing to say is that the ONLY safe way (ie the only way to avoid completely any claim for unlawful eviction) is to use the County Court Bailiffs (or the High Court Sheriffs).

There is a bit of a delay for a bailiffs appointment in many courts so it is generally best to apply as soon as the date for possession is past.  There is a fee currently of £110.

However you are normally safe to go in and change the locks if the tenant has removed all his possessions AND left the keys behind.  Leaving the keys is generally considered a sign of giving up possession, so if they have not been left you always need to be a bit careful.

My view is as you have gone to all the  trouble of getting a possession order, it is probably worth waiting and getting a bailiffs appointment unless it is very clear that the tenant has vacated.

As regards the possessions left behind, you need to comply with the Torts (Interference with Goods) Act 1977 – Ben did a post about this a while back which you can see here.

After having come up with eleven posts on the subject I feel I have come to the end of the line.

However, but if you know of any potential defences I have overlooked, please do leave a comment.

So it remains for this final post to summarise the information and look to the future.

A summary of the defences

We started with the defence that the tenancy is not an AST and also looked at issues relating to the timing of the issue of proceedings, and proof of service of the notice. However the most common problems occur with the drafting notice, in particular regarding the expiry date.

Good news for landlords is that this problem can easily be overcome by using a saving clause with your notice. In the past some Judges were unhappy about these, but recent cases have shown that the Court of Appeal consider them valid.  So there is no reason not to use them.

The main problem I suppose is that many of the section 21 notice available, particularly those which can be downloaded for free, do not contain a saving clause, making people who use these notices more vulnerable to claims being dismissed.

The other very common reason for claims being rejected is that the claim form has been signed by someone other than the landlord or his solicitor. Usually this is the letting agent. I discuss this, and why it is unacceptable, in post #9.

The two final defences I looked at were those which will arise if the landlord is in breach of certain specific legal obligations.  At present these relate to obtaining a HMO license if the property requires it, and protecting the deposit and serving the prescribed information notice, where a deposit has been taken.

Looking to the future

These last two defences point the way. If further regulations are developed for private landlords it is highly likely that they will be enforced, not by making a failure to comply into a criminal offence, but making it an obstacle to recovery of possession under section 21.

After all, as several reports have shown, criminal penalties are frequently not being enforced. This is largely because of

• The amount of time it takes to prepare a criminal prosecution
• The lack of man power at Local Authorities (who bring most housing related prosecutions) available to do this work, and
• The low level penalties handed out by courts, even if a prosecution is successful, making many people consider that they are not worth the effort

The main problems with the ‘civil remedies’ option for dealing with failure to comply with regulations though, are with difficulties in enforcing them.  As seen with the tenancy deposit penalties in recent years – not the section 21 element but the right of the tenant to claim a penalty payment for non compliance.

Because a penalty which prevents a landlord from recovering possession under section 21 is only going to ‘bite’ if the landlord actually wants to recover possession. Most landlords don’t. So, as with the tenancy deposit regulations, when creating penalties for non compliance, a prohibition against using section 21 when in default is not going to be enough.

I have noticed that this government though seems to favour returning to the criminal penalty option, for example with its plans for dealing with squatters and council tenancy subletting.  Although it is not certain that the enforcement bodies (the police and local authorities) are going to be fully funded to allow them to use these new powers.

No doubt though if extra regulations are enacted for the private rented sector, for example relating to property standards, landlord registration and accreditation, rules prohibiting the use of section 21 on default are likely to be a part of the mix.

The Housing Act 2004 introduced a new definition of houses in multiple occupation and, for the first time, introduced compulsory licensing for some HMOs.

What is an HMO?

According to this page here on the direct.gov site:

Your property is an HMO if you let (or plan to let) to at least three tenants who form more than one household and who share (or will share) toilet, bathroom or kitchen facilities. If so, you may need a licence.

Further down the page, it continues :

You must have a licence if you own a large HMO. A large HMO has:

• three or more storeys
• five or more tenants forming more than one household

Some councils require smaller HMOs or all HMOs in certain areas to have a licence as well. You should contact your local council to see if you need one.

It is an offence not to apply for a licence if your property must have one.

So there you are. Despite this seeming simplicity, the subject of what is or is not an HMO, and (if you are able to work this out) whether it does or whether it does not require licensing, can be exceedingly difficult to work out. Unless of course you live in Oxford where ALL HMO properties will require a license.

OK, you may be saying, but whats all this got to do with a series on possession proceedings?

HMOs and section 21

The point is that if your property ought to be licensed by isn’t, you can’t serve a valid section 21 notice.

Housing Act 2004 S75(1):  No section 21 notice may be given in relation to a shorthold tenancy of a part of an unlicensed HMO so long as it remains such an HMO.

The act defines an unlicensed HMO as an HMO which is required to be licensed but isn’t (makes sense). However you are all right if at the time of service:

• You had put in an application for a license which is still pending, or
• You had a temporary exemption notice

HMO licensing and the court claim form

The new form 5B, which is the form you use when applying for possession using the accelerated procedure is pretty specific – you have to say whether or not the property is an HMO, whether or not it needs licensing, and then if it does, give the name of the local authority which issued the license and its date.

If you are a tenant on the receiving end of a 5B summons, and you are pretty sure that your property is a licensable HMO which is unlicensed, it may be worth following this up. You will need to speak to your Local Authority housing officer about it.

If you are right, it will be good news as not only will you be able to defend the possession claim, you may also be able to apply for a rent repayment order.

I personally am not aware of any possession cases where a claim has been successfully defended on this basis though – do you know of any?