Here is a question to the blog clinic from Hayley who is a tenant
I have been issued a section 21 and have to be out by 30th June.
Local housing have told me not to move out on that date and wait for my landlord to go to court for and eviction order. Will I have to pay the court cost for them to do this as I am am also spliting up from my husband and have three children
If you want to be re-housed by the local authority it is ESSENTIAL that you do not move out. Otherwise you will lose your right to be re-housed.
There will often be a costs order made in possession proceedings, it is generally either £175 if the landlord is acting in person or £244.50 if they use solicitors. You can ask the court to make an instalment order.
There is more information here.
Firstly I should say that I was quite surprised to see the advice given in this blog, because this is advising the tenant to make themselves subject to legal possession proceedings, which will only delay the process of possession being obtained by the landlord, not change it, whilst also likely subjecting the tenant to have court order awarded against them for the landlords legal costs, which if not paid will result in a CCJ being registered against the tenant.
Once evicted, yes the council would then have a rehousing responsibility, however the fact is that most councils do not have spare housing stock, and so the tenant will most likely end up in temporary accomodation whilst the tenant is recommended to consider all options including private rented sector accomodation again.
The problem now however would be that the tenant has been legally evicted, a fact that would have to be declared during the application for private rented accomodation, meaning they would almost certainly be declined. This is not therefore a simple decision, the tenant should be aware of teh longer term consequences of not moving out and waiting to be legally evicted.
Far better is to be proactive and search for new private rented accomodation and seek Local Housing Allowance to assist with teh rent if they are eligible. By being proactive and seeking new accomodation prior to eviction they should still pass referencing. Wait to be evicted and the private rented sector will almost certainly become out of reach.
This is also a much fairer solution for the landlord, who would probably be happy to work with you and give you a bit of an extension while you find a suitable property to move to, as opposed to have to go down the legal route.
I would never advise a tenant to await the application of a warrant, as the s21 is an intention to end the tenancy, without any defence. A tenant, particularly one on a low income will almost certainly incur further costs, by waiting for a warrant. Local Authorities should not be finding on an intentional decision because the tenant leaves before the warrant; awaiting its service would just be delaying the inevitable.
My understanding is that if the tenant moves out on receipt of a notice, perhaps to kip with their kids on their parents sofa, they will by doing that, be making themselves ‘voluntarily homeless’ and will lose any right they may have to be rehoused by the local authority.
Of course only tenants in ‘priority need’ will have any chance of being rehoused anyway but this lady has three children so she will fall into the priority need category.
If the tenant is able to find somewhere else on her own then great, move out. But she should NOT move out before there is somewhere certain for her to go to.
I know it is an unfortunate system and tenants will make themselves liable for the costs but that is the topsy turvey world we live in. I did not make the rules.
It is question of which is the greater evil – a liability for £175 – £244.50 costs or loosing her right to be rehoused by the local authority if she cannot find anywhere on her own.
Looking forward to the Localism Act changes which strengthen this position.
As Victoria correctly states, leaving a property on expiry of a section 21 notice should not be deemed by the authorities as a tenant making themselves “intentionally” homeless, and if a local authority suggests this is how they would deal with it, the tenant should challenge this. I just totally disagree with any advice that constitutes advising the tenant to breach the terms of the tenancy as this will have far greater consequences for them in the long run, not just in terms of costs, as explained already
The trouble is, a section 21 notice does not actually end the tenancy. It just means that the Judge must make the order for possession if the landlord brings a claim for possession.
Many, many, landlords serve section 21 notices (maybe as a precautionary measure) and the tenants stay on in the property for months or years afterwards.
So the LA have a point if they consider the tenant to be voluntarily homeless if they move out in response to a s21 notice.
It seems wherever I post online this old argument will come up again and again. I have responded on Landlord Law Blog at least 3 times in my memory on the same point, but that alone sheds a light on the issue, ably highlighted by Damon. The competing needs of PRS landlords, tenants and council housing departments and for me this throws up conflict in the systems.
Landlords get annoyed because there is no point in pushing things to the wire when there is no defence to the possession action, and as he accurately says it can harm tenant’s future prospects with prospective new landlords who perceive themselves taking on someone who is going to be difficult.
Councils, on the other hand are bound by laws that aren’t created to make a landlord’s life easier and why should they be? Homelessness legislation is a different animal with vastly different parameters.
Although Paragraph 8.32 of the homelessness code of guidance points out that in section 21 applications it is unreasonable to expect a tenant to stay in occupation beyond the date of expiry of the Section 21 notice it is mitigated by a range of factors. Bear in mind that the code is merely a set of guidelines, not hard rules. In the case law of Croydon v. Jarvis it was established that when making a decision as to whether or not a person is considered homeless the council had to consider the landlord’s position and the council’s position, re: alternative accommodation and resources and if councils simply don’t have the resources what are they supposed to do?
I can both appreciate and understand Damon’s position but it is a common misunderstanding. The council is not there to solve the landlord’s problem with their tenant, even though in following the procedure the tenant is being prejudiced by extra costs and a possibly damaged reputation.
The council’s position is in respect of homelessness application, end of. The coalition’s policies, whether they be of the benefit kind advanced by Lord Fraud….sorry, Freud….damn this spell checker, or of Mr Shapps and his housing policies have seen a massive rise in homelessness applications, between 38% and 41% depending on who you read. More homelessness applications means less accommodation to actually put the people in.
More homelessness applications means councils are even more unable to find temporary accommodation to place homeless applicants, which means more homelessness units will require landlords to get a warrant before they will pick tenants up.
Blame ill thought out government housing strategies, not councils.
There are 3 people in a PRS relationship, the landlord, the tenant and the council. Homelessness legislation grew up independently of letting laws. Maybe it’s time to take a holistic view but our present government arent incapable of such broad thinking, being, as all governments are, more concerned with winning elections and polls than actually solving problems.
“More homelessness applications means less accommodation to actually put the people in.
More homelessness applications means councils are even more unable to find temporary accommodation to place homeless applicants, which means more homelessness units will require landlords to get a warrant before they will pick tenants up.”
..Which means more and more landlords will refuse to take on HB.
The issue comes up again and again because its a ‘computer says no’ type problem exasperated by councils not working with landlords. Its not just about making landlord’s lives easier, negotiation and compromise will work out far cheaper in the long run.
This blinkered, short term, easy solution is only making things worse for landlords, councils and tenants.
HBWelcome I heartily agree. Trouble is, very few people in councils seems to agree with us.
Actually, as hinted above, 2006 regulations say that councils ought to take an S21 seriously where it is shown or believed the landlord is serious about the intention to evict. Very few of them do, but I know of a couple of local authorities who are now taking S21s seriously and proactively helping tenants prior to the expiry date.
Incidentally, ‘guidance’ can indeed be binding as witnessed in the Hyndburn selective licensing case.
The one thing councils dont tell tenants when dishing out the ‘stay put’ advice is that they will be liable for the additional costs – I have had at least one tenant come to me in tears having only discovered this after following the councils advice to the letter…
Many landlords don’t enforce the costs order being grateful just to have their property back.
Its nice to know that some local authorities are helping to rehouse tenants pre possession order. I suspect though it is all down to what housing they have available to put people in.
Thank you for contributing everyone and making this an interesting discussion.
I can’t believe it! Has anyone seen the latest details on the government’s plans for universal credit?
Apparently private landlord’s rights to insist on direct rent payments if the tenant is in arrears will be scrapped!
So that will result in even more pressure on social housing as more and more landlords in the private sector refuse benefit claimants.
Do policy makers have any understanding of the industry whatsoever?
However from this government answer it looks as if some direct payments may be allowed http://www.theyworkforyou.com/wrans/?id=2012-04-30c.105906.h