Here are some questions to the blog clinic from Andrew (not his real name) who is a landlord:
I am a new landlord with a first off ever tenant bad experience…ongoing.
I have a series of questions, as we are due to apply for the court order this week (Friday 30th March) with S8 served 13th March. We cannot use S21 as the tenancy is for 2 years without break.
The tenant is in two months arrears as of the 12th March (S8 served 13th March) of £4636.66. The rent is due on the 10th of the each month. The tenancy agreement started 10th August 2011. They were late on January 2012 rent and Feb and MArch 2012 remain unpaid.
There have been other beaches to the agreement including changing locks, substantial redecoration, denial of access for inspection and misinforming us at the start on who would be occupying the flat. Grounds 8, 10, 11, 12 and 17 were listed on the S8.
1) We are inclined to use PCOL as we want a quick response with a hearing date and we believe the tenants will not get the arrears sufficiently low enough for discretion. But my question is can I list the other breaches and grounds in PCOL as we have done in S8 (grounds 12 & 17)?
2)We have sent two emails requesting that since the tenant she had mentioned she is not happy living at the property and she has not paid rent nor plans to pay it- she should vacate. Could this be seen as haressement?
3) The tenant is complaining about the owner of the flat upstairs making noise and drilling going on in the next door building- there is an application for the building next door to be redeveloped but this has not been given approval as yet. Tenant has mentioned these issues only twice, could she use this in court as a defence?
4)We rented the property out so we could also rent elsewhere with our two small children, we are now in a position where we cannot pay next month’s rent due to the rent arrears caused by our tenant and have had to give notice to surrender. So need a property back asap to live in it. Will this be taken into account at court?
5) Any experience with the London county court department?
Quite a few questions so I will make my comments fairly brief or I will be writing this all night!
1. If you want to use the PCOL service it has to be just for arrears of rent. This is what it says in the user guide which you can read here. I don’t recommend using discretionary grounds for possession anyway (save in exceptional cases) as you can get snarled up in a long expensive defended claim.
2. I don’t think two emails can be seen as harassment. Just so long as you don’t go round banging on the door and yelling up at the windows!
3. You cannot be held responsible for something someone else has done. So unless you actually employed the neighbour to cause a disturbance to ‘persuade’ her to leave (which you didn’t) then it is not a defence she is entitled to raise.
4. WIth a mandatory ground for possession it is either made out or it is not. If she is in arrears of two months or more at the date of the court hearing, then you will get your order. Otherwise you may not. However the problems that this has caused you and your family will be something the Judge takes into account if she asks for more time in the property.
5. They are very busy so don’t expect an early hearing. If you need to get a bailiffs appointment you may be in for a long wait. Also if you make a mistake it could take a long time to get the case back on track as there are generally long delays in getting hearings for non standard appointments.
Finally NEVER give a two year fixed term with no break clause to a new tenant!
If you want a bit of help with bringing your claim, note that +Plus members of Landlord Law can use my do it yourself repossession kits.
I work in the Lonmdon County Court system in these kinds of cases (On the other side Andrew – sorry mate) Tessa is right, they are so overstretched and inundated with rent and mortgage repossession cases that things can take an age.
I recently defended a case and the judge rescheduled the hearing for the first available date after 28 days, which turned out to be 4 months because of the huge backlog. Thats why Tessa is correct in warning of the pitfalls of complex discretionary grounds which could give rise to an adjournment.
I would add on point 2, about the emails. You wouldnt get any hassle for that one but you are right to consider the possibility. Section 40 of the Administration of Justices Act 1970, a standard tool in a TRO’s arsenal, makes it a criminal offence to make demands for payment in ways which cause distress, alarm or humiliation.
I get lots of these complaints. Back in 2009 an estate agent in Liverpool started putting agents boards up in gardens of rent owing tenants saying “Rent dodger lives here” a clear breach. Dunno what happened to them.
I have in the past issued cases under PCOL and then ammended the Particulars of Claim to include other grounds. The rationale for this is that the use of PCOL is restricted to issung cases, but when the hearing date is fixed, the case will be dealt with under normal possession claim principles. You would have to serve your Ammended Claim Form straight away and seek leave at the hearing to rely on the other grounds.
I would however caution that if you can show your case on grounds of rent it is pointless going for other grounds – the judhge is not going to spend time at the first hearing taking evidence on these other grounds if the Tenant turns up and tries to Defend.
The other risk is that if the tenant is presented with a different set of grounds which he doesn’t agree with this might then spur him into action and try to defend, whereas if he is just presented with a rent calculation there is often a feeling of fait accompli which operates in Landlord favour
Brilliant input Simon. Yes, a claimant can add grounds later on. The problem, from a landlord’s persepctive, is that if a tenant can borrow enough money to get the arrears, even £1 below 2 months before trial, all the claimant has left are grounds 10 and 11, both discretionary, and liable to an SPO on rent plus (£3.40?) per week. Not an ideal solution.
This contributes to the view that I am reading with increasing regularity, that the law is biased towards tenants, which damages a holisitic view of the PRS and adds fuel to the fire of landlords who hate their tenants. Nobody wins.