Here is a question to the blog clinic from Nick whose parents are landlords
I’ve a bit of an unusual situation which I would really appreciate help in clarifying.
My parents own a flat and they served a S.21 notice on the current tenants (not council tenants) in order to regain possession of the apartment so that I and my partner could move into the property.
A full 2 months (plus some extra days) notice was served and in the correct manner. Three days prior to us believing we would be moving in we have discovered that the tenants are refusing to leave the property for 3 and a half weeks – effectively leaving us homeless (the tenants have acknowledged receipt of the S.21 to the managing agent).
I understand that the tenants have the right to stay (frustratingly) until my parents have issued court proceedings and secured an eviction notice which can between 6-8 weeks, thus leaving my partner and I homeless for 6-8weeks.
I have a few questions.
1) Are the tenants due to pay rent for the full period until the eviction notice is served?
2) Can my parents claim back from the tenants deposit expenses incurred by my partner and I for moving property twice, plus the additional costs relating to additional travel and rent in the holding over period? What protection is there for us as tenants due to move into the property?
3) Are there any implications for the tenants not moving out when due (why don’t all tenants do this – being honest I suspect) as they are adversely affecting other tenants, not just the landlord? If they are liable to get a CCJ then I’m sure this would give them an incentive to vacate the property, having had a sufficient warning that they were due to vacate (over 2 months).
Currently it seems that irresponsible tenants can cause a whole series of issues, for the landlord and also for the tenants due to move into the accommodation – potentially causing a huge chain of events. If for example my partner and I decided to stay in the property we currently lease, thus affecting our current landlord plus the tenants moving in after us.
Its not an unusual situation at all Nick. It is not at all unknown for tenants to fail to move out after being served a section 21. In fact if they want to be rehoused by the Council they will be told to stay there by the homelessness officer as otherwise they will lose their right to be re-housed (as they will be deemed ‘voluntarily homeless).
A section 21 notice does not actually end the tenancy. All it does is give the landlord the right to go to court and ask for an order for possession. So the tenants are fully entitled, legally, to ignore it and stay on if they wish.
Your questions:
1. The tenants are liable to pay rent right up until the day they leave the property. Although many tenants (wrongly) stop paying rent if they know they are being evicted.
2. No. It was inadvisable on your part to assume that the tenants would move out. You are not the ‘tenants’ of the property, they are. A property cannot be let twice at the same time, and so any tenancy granted to you will only become effective once the current tenancy has ended.
3. All tenants are entitled to stay put if they want (and if they want to be re-housed by the Local Authority they will have to). However most tenants don’t do this as they respect the landlords wishes and (perhaps more crucially) don’t want to get a negative reference.
If the tenants are in arrears of rent, your parents can apply to the courts for a CCJ. The section 21 procedure does not affect their right to do this.
If they want to deal with the eviction themselves, note we have a DIY Eviction Guide
** Stop Press : Get my free report on how to evict your tenant for £376 or less: click here**
23 years we have had Section 21s and the principles of notice followed by possession and tenant’s rights have been in place for…..what? nearly 100 years? and still the myth persists that notice ends a tenant’s rights.
I have to explain this at least 3 times every single day to my clients and their landlords.
Education, Education, Education folks. Learn about letting and avoid the headaches
Thank you for the response.
The whole system could do with clarifying or speeding up. Otherwise the landlord is left in the situation where they have served the S.21 and then don’t know if the tenants will leave or not, after which they have to spend a substantial sum of money to start the eviction process (which takes a minimum of 6 weeks). The whole process is ambiguous and not clearly explained. If the eviction process was reduced to 1 week then at least the landlord would have some sense of the amount of time that it would take to regain possession of their property, allowing both them and future tenants to plan ahead.
Also if the tenants gave a verbal agreement that they would leave on the date the S.21 became due and then don’t leave this causes a lot of expense for the other parties, which I think should be chargeable for (although appreciate that this isn’t allowed).
Landlord & tenant law is not drafted for the convenience of landlords or indeed tenants. It is an attempt to make things generally fairer over all.
Bear in mind that the same system covers bad tenants, honest to goodness tenants, local authority tenants, housing association tenants, tenants who don’t pay the rent, tenants who have a genuine claim against their landlords for disrepair etc etc. It is impossible to be completely fair to any one of these elements in a system which covers them all.
Landlords are expected to know and understand the system. So they don’t get any sympathy from the courts (normally).
The whole eviction procedure is explained VERY clearly in my kit here http://www.landlordlaw.co.uk/eviction
I discuss some of the more philosophical aspects in my ebook here http://www.landlordlawblog.co.uk/2012/10/01/housing-law-the-bigger-picture-the-ebook/
Two more posts you may want to have a look at :
This post is helpful to landlords whose tenants give notice to leave and then refuse http://www.landlordlawblog.co.uk/2009/12/01/ancient-law-may-help-landlords/
This post gives some guidance on eviction http://www.landlordlawblog.co.uk/2011/05/18/what-can-you-do-if-your-tenant-just-wont-go/
In fact if they want to be rehoused by the Council they will be told to stay there by the homelessness officer as otherwise they will lose their right to be re-housed (as they will be deemed ‘voluntarily homeless).
This isn’t always the case Tessa, it depends on the council. Some councils will re-house once a section 21 has been served and they are satisfied the landlord is determined to follow it through. Indeed, it is in the Councils own Homeless Guide to do so.
The most crucial point in this, in my opinion, is that the Landlord needs to safeguard themselves against the new tenant claiming against them in the event any existing tenant does not move on – I realise in this case it is difficult as the new tenant is a family member. The best advice I received on this aspect, was from Tessa Shepperson, who suggested a useful clause in the new tenancy agreement to state that if the tenancy agreement when the present tenant is still at the property, if they fail to move out then the new tenancy agreement will not proceed. Again, I appreciate difficult with family members, but certainly even family members should be given tenancy agreements.