Here is a question to the blog clinic from Colleen who is a tenant:
I am a working mum of 4 children living in a rented house since sept 2009. I was issued with a section 21 notice on Friday 13th of this month, landlord is selling the house.
The council are saying I need to remain in property until an eviction notice – I am scared stiff regarding telling the landlord I can’t vacate property, unable to raise money for bonds, deposits etc whilst living here (currently pay £695 pm) plus I am struggling to find a homeowner guarantor which is a requirement with a lot of agencies.
I have been advised not to pay my rent after the section 21 expires in June, is this the correct course of action? I don’t feel comfortable with tht advice.
Please advise, Many thanks
Colleen, if you want to be re-housed by the Local Authority you MUST stay in the property or you will lose your right to be re-housed. Landlords are (quite rightly) infuriated by this, but there is nothing you can do about it.
So far as the bond is concerned, have a word with the homelessness officer at your Local Authority as there are often special schemes for people who cannot afford to pay deposits. Or your local CAB may be able to help.
So far as the rent is concerned you SHOULD pay rent after the section 21 notice has expired. The fact that the landlord has asked you to leave does NOT mean you are then entitled to live in the property rent free. I am very surprised that you were advised to do this.
Also if you don’t pay rent this puts you in the wrong. If, for example, your landlord then decided to evict you for non payment of rent this could prejudice your right to be re-housed.
The main thing for someone in your position to remember is that you mustn’t move out and that you should follow the advice of your homelessness officer (unless they tell you not to pay the rent because you have had a s21 notice served on you!).
See also the post here which has some advice which may help you.
I’ve come across this dont pay your rent advice many times. People in councils arent always best trained to give advice and yet they do. A little knowledge is a dangerous thing as they say.
Tessa is right. Check with your council’s housing advice team. Councils have different pots of money and schemes and you may find an arrangement that can help.
Councils dont want to have to put a family through the homelessness route if they dont have to but in law they dont have to start looking at your case until the landlord has a possession order, because only then will you fit the homelessness criteria.
A notice is simply only that, putting you “On notice” that the landlord wants the property back and yet so many landlords believe it ends a tenant’s right to live in the property. Police often think the same thing and advise tenants they have no rights.
Landlords will often get angry at councils for not taking the tenant out of the property when the notice and the fixed term end. A landlord/tenant relationship is a business arrangement, why should the council use public funds to jump in and rescue the landlord?
Lack of knowledge is what drives these beliefs and as usual education is the way to resolve it
Hello Ben,
Your comment above seems to directly contradict this government homelessness code of guidance for local authorities-
http://www.communities.gov.uk/documents/housing/pdf/152056.pdf
8.32. Each case must be decided on its facts, so housing authorities should not adopt a general policy of accepting – or refusing to accept – applicants as homeless or threatened with homelessness when they are threatened with eviction but a court has not yet made an order for possession or issued a warrant of execution. In any case where a housing authority decides that it would be reasonable for an applicant to continue to occupy their accommodation after a valid notice has expired – and therefore decides that he or she is not yet homeless or threatened with homelessness – that decision will need to be based on sound reasons which should be made clear to the applicant in writing (see Chapter 6 for guidance on housing authorities’ duties to inform applicants of their decisions). The Secretary of State considers that where a person applies for accommodation or assistance in obtaining accommodation, and:
(a) the person is an assured shorthold tenant who has received proper notice in accordance with s.21 of the Housing Act 1988;
(b) the housing authority is satisfied that the landlord intends to seek possession; and
(c) there would be no defence to an application for a possession order; then it is unlikely to be reasonable for the applicant to continue to occupy the accommodation beyond the date given in the s.21 notice, unless the housing authority is taking steps to persuade the landlord to withdraw the notice or allow the tenant to continue to occupy the accommodation for a reasonable period to provide an opportunity for alternative accommodation to be found.
That may well be the case, but in the real world Local Authorities do not have sufficient properties to house all the people who require housing.
So they have no alternative but to refuse to rehouse someone who has somewhere they are legally entitled to stay in until such time as an order for possession is made and a bailiffs appointment made.
I’m sure you are right Tessa but whilst it may solve a councils short term problem, in the long term it only makes things worse by discouraging landlords from taking on HB tenants ever again. It just leads to more of the ubiquitous “No DSS” in rental adverts and worsens the reputation of the majority of decent HB tenants.
I don’t claim to have the solution to local authorities having insufficient housing but if they worked with landlords it would be a step in the right direction. Adopting a blanket policy of not rehousing until the bailiffs evict is not the answer.
HB I am 100% with you on your suggestion for a solution, this is exactly what I am working on at the moment, using mentoring and training of landlords, building face to face relationships with them to help sort problems out.
I’m well aware of Para 8.32, I’ve been teaching it for years to a sea of blank homelessness officer faces haha.
The problem is that the Code of Guidance isnt a rule book. Councils have to have regard to it when making a decision but they can depart from it, as long as they can show the reason for doing so and the main case law that gets in the way is Regina v. Croydon ex.p Jarvis, where the judge held that in making it’s decision, the local authority had taken into account the position of the landlord and the tenant, the code of guidance and the general housing circumstances in the area.
Croydon is a London borough with London problems in terms of housing shortage so the decision to treat further occupation as reasonable was a sound one, despite Para 8.32. Bear in mind however that a different decision may be arrived at if the council does have a few available properties. It will depend on a case by case basis.
I trained a homelessness office in the west country last year who told me they had a busy week in picking up 4 new cases, in my inner London borough we get, on average, around 100 people a day through our door, sometimes more. In which case we have to cite Jarvis at every turn.
I worked out a while back that if we picked up every homelessness approach on expiry of a S21 we would run out of temporary accommodation in less than 2 days
Hello Ben,
I see you are very well aware of it as I’ve just noticed you highlighted the exact same point on here 20th March 12.
Still, it’s a good point that suffers no harm from repeating as many councils seem unaware of it.
Thanks for the reply.
We’ve been through this scenario three times in the last 8 weeks. Accelerated Possession Procedures are almost becoming standard practice for landlords ending tenancies with LHA claimants.
In two cases it actually held up the incoming tenancy, both of which were LHA claimants currently living in emergency accommodation at the local authority’s expense!
Perhaps if the LHA contribution was still paid direct to the landlord there wouldn’t be quite so many tenants being kicked out of their homes in the first place and there would also be more landlords prepared to accept them therby increasing housing supply for LHA claimants.
Jamie I agree with that too. Credit unions are the key to this. I have posted elsewhere about setting up Escrow accounts that will solve the problem of LHA direct and if there is no credit union in your area try Tasker Payment services, who offer the same service to anyone in the UK.
HOwever when you say accelerated procedure is becoming standard for LHA claimants you are presuming that councils only apply this ruling to those on LHA. Working couples approaching a homelessness unit with a S21 would get the same advice. It has nothing to do with a person’s income status and everything to do with councils having little temporary accommodation.
Homelessness units dont refuse to pick up cases just to be awkward
The problem is if I ever found out from a reference (or otherwise) that a potential tenant made a past landlord go though the cost of court action after the landlord has served a section 21 notice I would never let to that tenant.
So by telling tenants to do this the housing officer is making it very hard for that telant to ever get housed in the private sector.
So Ian you would prejudice a tenant simply for expecting a landlord to follow their legal obligations?
Tenants come to me all day, moaning that their landlord hasnt done this or that and expecting the council to come in and rescue them. It drives me to distraction and I have little patience for that frame of reference. The very idea that their mindset is that whatever befalls them, ultimately the council will always jump in and sort it out. I;m sure you feel the same way.
But isnt the landlord, in expecting homelessness units to “Beam up” people from a a PRS letting just to save the landlord the arse-ache of having to evict themselves, displaying exactly the same mindset? The council as solver of all PRS-ills?
Nobody twists a lanldord’s arm to rent to anybody. It is a profit making enterprise. If it it turns sour, for whatever reason, why should the council use public money to bail the landlord out?
A homelessness unit has a statutory duty to provide accommodation for homeless people, but the legal definition of homelessness doesnt mean that a person is street sleeping. If a person has a legal right to occupy accommodation they arent legally homeless, and a person has a legal right to occupy until the COURTS take that right away.
In advising a tenant to wait for full possession the housing adviser isnt sticking it to the landlord, just pointing out the legal requirements to satisfy a proper homeless application.
Or would you rather a world where the homelessness unit picks up every single applicant who sits in an interview room in tears saying “I cant stay there anymore?” Or every landlord who says “They owe me money, so they’re your resposnsibilty now?”
Ben, obtaining a possession order costs money. Sure, the landlord can get an order that the tenant pays the fixed costs and court fee, but is that actually enforceable? Realistically, almost certainly not. So the LA is advising tenants to force the landlord to incur additional costs and to be on the receiving end of an order that they pay those costs, costs they are likely to find a real burden. How can you legitimately criticise a landlord for wanting to avoid unnecessary delay and expense?
I’m with Ben on this one. Tenants have a legal right to stay in the property until evicted.
When someone becomes a landlord this is a business activity and in business you have to take the rough with the smooth. You cannot expect things to work out all the time.
Landlords should make provision for this sort of thing or take out legal expenses insurance.
We all know that there is a housing crisis and Local Authorities are in real problems housing anyone. We hear of people being on waiting lists for over 20 years.
As often landlords serve section 21 notices just as a precaution with no intention of using them immediately, it is not unreasonable, in the circumstances, for Local Authorities to require tenants to stay until an order for possession is obtained.
That’s a fair point about how s.21 notices are sometimes used. I note that some landlords serve them at the start of the tenancy as a matter of course, which I find peculiar, even if it is procedurally acceptable. It is still the case, however, that the LA policy is inflicting an additional, avoidable cost on the tenant inn terms of Court fees and costs.
Why do the costs and court fees get charged to the tenant if the tenant has a legal right to stay until evicted? As pointed out above often landlords serve section 21 notices just as a precaution which means that when they do finally want the tenant out the tenant may not get enough time to move before the landlord incurs court fees by applying for a possession order. Is that a reason to let the tenant off having to pay the costs?
On the other hand if a tenant moves out due to a precautionary S21 when the landlord didn’t really want them to go then can the landlord ask for an extra months rent if the tenant didn’t serve their own notice to quit?
It does make the decision of what to do when faced with a S21 tricky.
Johnathon it isnt the LA policy that requires a lanldord to get a possession order, it is the law itself.
This is a very common argument and I understand the landlord’s point, if the LA will be picking up eventually anyway, why not do it now and avoid the cost?
As I said above, the court in Jarvis stated that the council were correct because they took into account the landlord’s position, the tenant’s position, the code of guidance and the council’s position re; available accommodation. Although your commonly raised suggestion solves the landlord’s problem it doesnt take into account the full picture. Most local authorities, particularly those in cities, simply dont have anywhere to put people.
In the 2 years that the coalition have been in homelssness applications have risen 38% and every single person who comes through the door is demanding housing NOW! We call the police several times a week over incidents that flare up when we say NO!and then on top of that we have landlords ringing up and calling us unreasonable for expecting them to simply do what the law requires. Surely you can see this is a daft situation?
Thiings are about to change massively though. The Localism Act has abolished what is called the ‘Qualifying offer’, which will seriously shake up a homeless applicants expectations and relieve some of the pressure on LAs. Since 1996 a council could always discharge its duty to homeless applicants by making an offer of renting in the private secttor, which the LA usually helps set up, with deposit etc. Up until now it has been an option, if the applicant rejected it we would stick them in temporary accommodation until a council or housing association property came up. Thats gone under Localism. Now a person can come through the door, be offered a PRS letting, if they say no its, “Duty Discharged, your on your own”. This may well have a knock on effect on a council’s treatment of Para 8.32
@Sarah It is a general rule in litigation that the losing party pays the winners legal costs (although the amount awarded is rarely as much as the case has actually cost the claimant). It is not something special to section 21 claims.
However costs are always in the discretion of the Judge. So if a landlord said to a tenant, after serving a section 21 notice, that they could stay and then suddenly issued proceedings without warning, the tenant could ask the Judge to exercise his discretion and refuse costs. Which he would probably do. He might even award costs to the tenant. But the tenant has to ask, it won’t happen automatically.
When tenants are moving out I would always advise that they give the landlord at least one months notice. Then there won’t be any problems about the landlord claiming rent in lieu of notice (which technically I think they can even if they have served a s21 notice).
“when you say accelerated procedure is becoming standard for LHA claimants you are presuming that councils only apply this ruling to those on LHA. Working couples approaching a homelessness unit with a S21 would get the same advice.”
Yep I know, but in my experience it’s usually only the LHA claimants who can’t find another property and end up going to the council for assistance. Non-claimants tend to find it easier to get another property simply becasue there is more availability.
Interested to hear more on the Credit Union/Escrow solution but I thought the LHA itself was still paid to the tenant first and you have to rely on the tenant paying it into the Escrow account. Can you elaborate please?
Jamie – see this page here on my Landlord Law site http://www.landlordlaw.co.uk/content/credit-unions-which-will-accept-local-housing-allowance-payments
This has details of Credit Unions who offer this service.
Plus Tasker payments who offer this service nationwide http://www.taskerpaymentservices.co.uk/
Read the link and it’s really useful. Thanks.
Shame it’s not a nationwide service though.
Ben I think you are looking at this the wrong way…
Say I were to get a builder to do some work, but then decided not to pay until he got a court order forcing me to pay, I would rightfully expect him to tell all of his mates about it and for it to become a lot harder for me to find a builder next time. (As in the above case the payment including legal costs is make as soon as the court case is lost, it is not even noted on the credit file and no law has been broken by refusing to pay until the court order.)
In the low end renting market (rents close to LHA levels) a landlord will often have many tenants to choose from. One factor the landlord will take into account is how much effort (and costs) he/she considers the talent will be to manage, a tenant that has forced a past landlord to take court action is likely to be consider a poorer risk then a tenant that has always be uneventful for past landlords.
So regardless of the legal right of a tenant to wait for a court order once the landlord has made it clear he/she wishes to enforce a S21, the tenants should expect their actions to have a long term effect on how easily they can rent another place.
(Likewise for any other past action of a tenant that may make a feature landlord think twice about taking the tenant on.)
I don’t like the practice of serving a S21 at the start of a tenancy, as then a tenant does not know where they stand, I also would rather if a tenant could leave at any time in the two months so saving the tenant the cost of having to rent two places due to dates not lining up.
I hadnt seen that article Tessa. There are loads of other credit unions too.
Jamie LHA will pay direct into the escrow account and the tenant can’t touch it because it effetcively has a fence around it and can only be used for 1 purpose.
I have been setting up a deal with my local CU whereby any tenant who comes to us and accepts a PRS letting, has to join the CU (only £1) and create an escrow and agree that if they cancel the standing order they have to give 28 days notice and we are allowed to notify the landlord that they have done so.
The aim isnt to Nanny the tenants, but to encourage PRS landlords to work with the support of the council and to make LHA tenants an attractive prospect, otherwise landlords will still avoid them like the plague.
Many CUs are gearing up for how we are all going to deal with Universal Credit when it comes in next year, trying to get ahead of the game to protect people.
My local one is so good at getting people to sign up that they have driven out all the doorstep loan companies from a large radius that is growing by month
I believe that CUs are a large part of the solution and that type of setup will reduce my fear of touching a LHA tenant. Having 3 months’ notice (instead of 28 days) would make LHA tenants less risk then a lot of other tenant.
If the same can be done with Universal Credit and employment income then it could transform the market.
Anything that drives out the doorstep loan companies must be good. I also like the fact that CU can teach people how to manage money and get them to save.
Have any housing departments considered funding CU to loan tenants a deposit with a saving scheme being put in place for the tenant to repay the loan? Once a tenant has proved to a CU they can save money, it may even be possible for a CU to provide limited rent insurance for any landlord that takes on that tenant.
If the CU would only work with registered landlords and agents then real benefits could be had with no changes to the law.
I’m not looking at it the wrong way Ian. I’m fully aware that future prospective landlords may be put off of renting to tenants who cant move without a PO but that is a different issue to a landlord being expected to follow due process.
As I said above I think the new abolition of the qualifying offer may affect this in future. At the moment it is still a common belief of homeless applicants that if they go ‘Dahn the ‘omeless’ that they will get a ‘Cahncil ahse'(adopt your own accent depending on where you live)Once people realise that the likely outcome of going ‘Omeless’ is simply to be set up with another private let, they may re-adjust their expectations and their behaviour.
Coupled with council’s increasing willingness to partner up with PRS landlords and create a renting community of which they will be part, landlrods may well find this problem being modified in the future. Its too early for me to suggest a good bet on how it will pan out but I have some guesses
Sorry Ian, our posts crossed.
Yes CUs are the future. I recently spoke to a Canadian tenant who told me that in Canada CU’s rival high street banks. I truly believe it will go that way here. They not only keep money in the community that it serves, without punting out the profits to fat cats in Monaco but they can help with financial education and fiscal discipline.
They have what are termed ‘Jam-Jar accounts’ where customers can apportion different funds to different ring fenced accounts for bills etc. This is really going to be essential come Universal credit, when paying rent will be the least of their problems.
Often people on benefits simply lack financial education, not willingness. I fully admit I am crap with money. Its a real struggle, even though I do 2 or 3 jobs, I find numbers a bit abstract to be honest, so despite working like a Japanese prisoner of war I have little to show for it. Numbers confuse me.
Having 3 months notice of a cancelled standing order is being a bit optimistic to be honest but bear in mind, with 28 days notice, the CU, the council and the LL will all be contacting the tenant asking them what is going on. you cant ask more than that.Landlords have to bear part of the risk. you cant expect a solution tha removes all problems.
And when the Localism Act provisions on making offers of any private rented accommodation come into force, I can foresee reviews out the kazoo on those provisions.
Offers of private rented accommodation still have to be reasonable for the applicant to occupy and affordable, surely, so a tenant could look at the 2 bed flat for £375.00/week that they go for here in the east end and say that it’s unaffordable and therefore not a reasonable offer of accommodation.
Even if Housing Benefit pays that much, isn’t there an argument that this effectively precludes them from getting a job, since any employment not enormously paid would result in them being given a crippling HB shortfall? This seems like a poverty trap waiting to happen.
In London, yeah JS. Rents are going to be way short of HB levels so we will still have a massive problem with where to put people but elsewhere rents arent anywhere near what we endure.
In those areas the removal of the qualifying offer will see huge numbers of homeless applicants being passed from the front door of the HPU, straight into a shiny new PRS letting, without pausing long enough to collect their waiting ticket from reception.
s202 reviews? They’ll become as rare as a DHP pay out and as for one carried out by a person with no prior knowledge of the case? …….If I could laugh like Brian Blessed I would haha
Ben,
The problem with only having 28 days’ notice is that the landlord may be very likely to put a S21 in place as soon as they are informed. With 3 months’ notice the landlord can be nice for the first few weeks….
There is still the risk of rent not being paid while the S21 is being enforced, so 3 months’ notice does not remove all problems with unpaid rent.
Now if there is a good home owning guarantor in place and the guarantor had a right to access detail of all the tenants CU account on line and is informed about the 28 days’ notice….
As to financial education, I have heard very good report of the courses that Christians Against Poverty run and the face to face debt counselling they offer. The notional coverage is patchy, but there is a postcode check on their website that will tell you what they do in a given area. One more option to point people at if there is not an effect CU in their area.
Yes and bear in mind Tasker Payment Services who are a sub group of Lianne Tasker allied to Wolverhampton CU. They can offer the same Escrow account to anyone in the UK. Handy if there isnt a CU in the tenant’s area.
As for the 3 months. Again Ian you are asking for a risk free letting.Nothing is without risk but the system we are working on is a damn fine one if I do say so and much better than any landlord or tenant would get from a high street bank. They would tell a landlord that a standing order had been cancelled or personally phone the tenant to ask why they did it
Hi I was in your situation six months ago and yes you do still have to pay your rent and also plea stay n your property don’t make yourself homeless as they council do not have to help you. It does take time so you could still have another six months that’s how long mine has taken ? Some agencies will take three months rent if you don’t have a guarantor it is worth asking. good luck .