Here is a question to the blog clinic from Michael who is a landlord:
I have served a notice to quit on a tenant today citing rent arrears due to the tenant being affected by a shortfall in the payment being made by housing benefit, as result of recent government policies, designed to “cleanse“‘ the poor from Central London
My question is this: IF the tenant is able to clear the arrears and bring the account up to date, am I obliged to cancel the notice? If not will the matter be thrown out by the Court IF at the point of appling to the Court for the possession order there are no rent arrears.
I have also failed to adhere to tenancy deposit regulations.
You don’t cancel the notice but it is unenforceable if the rent arrears are paid. The mandatory rent arrears ground is made out if the tenant is arrears of rent at the date the notice is served AND at the date of the court hearing. No Judge is going to make an order for possession on the basis of rent arrears that have since been paid.
However the notice (assuming it is a section 8 notice you have served) will remain enforceable for 12 months. So if you serve it in January, the tenant clears the arrears in March but falls into arrears again in September, you will still be able to use the notice to base a court claim for possession. Assuming the tenant does not clear the rent arrears again.
I am a bit concerned that you refer to the notice as a notice to quit. I have been assuming here that you have served a section 8 notice which is the correct notice to serve on assured shorthold tenants for rent arrears. There is another notice called a Notice to Quit but this cannot be used for ASTs (it is used for protected and unregulated/common law tenancies). So if this is the notice you have served it will be unenforceable.
As regards the deposit, you should protect this IMMEDIATELY. New regulations are coming in next month and if it is still unprotected at the end of April (2012), you will have no defence to a claim by your tenant for the penalty payment (of between one and three times the deposit sum) under the rules. This could wipe out your rent arrears claim.
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If YOU have a problem, why not put it to the blog clinic? However there are a lot of questions submitted and not all get answered. If you need an answer quickly remember that members of my Landlord Law service can ask me questions in the members forum area, and will normally get an answer with 24 hours.
That is why it’s a good idea to try and backup a section 8 notice based on Ground 8 (rent arrears) with grounds 10 and 11. As you have discovered, a tenant can find pay the arrears at the last minute and there is nothing you can do if you really wanted them out.
Although Grounds 10 and 11 are discretionary rather than mandatory, a judge is quite likely to grant posession if you can demonstrate a serial late payer with substantial historic arrears.
Ground 10
The tenant was behind with his or her rent both when the landlord served notice seeking possession and when he or she began court proceedings.
Ground 11
Even if the tenant was not behind with his or her rent when the landlord started possession proceedings, the tenant has been persistently late in paying the rent.
True but I don’t like getting possession under a discretionary ground.
The 6 weeks limit on the Judges powers to stay and suspend no longer apply and you may find that your tenant is able to spin things out indefinitely by asking for stays of execution every time you try to get a bailiffs appointment.
Tessa
Your comment on re-using the s8 notice several months later if initial arrears are paid interests me greatly.
It may be an old wives tale but I have always understood that the arrears referred to in a section 8 notice had to be relevant and applicable. In other words serve a s8 for Jan – Mar being missed, then tenant pays in April, misses August to October you can’t then use the original notice in November as the detail in it (section 4 – the Landlord’s story)should have stated what arrears were missed.
So if you said Jan – Mar how can you then use the notice for Aug-Oct arrears?
Anyway it is only 2 weeks notice so why risk an old notice?
Could you serve also a S21 at the same time as the S8?
@Industry Observer I have to say that I think it is best practice to serve a new notice, as the notice period is only two weeks. I would always recommend this if possible.
However I have had cases where I have suceeded with a notice served earlier. This would be on the basis that the details in the notice were correct *at the time the notice was served*. The up to date situation is given in the claim form and, more importantly, at the hearing.
@Oscar Yes, but it is best to have a covering letter saying that they are served without prejudice to each other.