Advice on CCJ after section 21 and section 8?

Dear James
You are seeking detailed legal advice on a complex matter. Even if we on this site can provide some help, you still need someone to review the documents and advise you.

You say that your solicitor is "so busy that it’s hard to ask them anything". I suggest you make a nuisance of yourself by calling and emailing. They may respond to get you off their back. If the solicitor is a junior solicitor or junior partner then, if necessary, go over their head and insist on proper service.

That said and without the benefit of full facts, but with over 30 years experience as a landlord and as a lawyer, the quick and dirty answer to your situation is: be grateful if you can get the tenant out relatively quickly and you may well have to write off most if not all of the arrears apart from the deposit and also the abortive sale costs.

If agents drafted the renewal lease, they ought to have insisted on the guarantor signing again. If the first lease was properly drafted then the guarantor would have remained liable when the tenancy became periodic. Renewing without the guarantor may (and I stress that it is not certain) demonstrate negligence on the part of the agents or whoever arranged the signing of the second AST.

Hi Ian,

Thank you for your comments and thoughts, and no I didn't make myself a nuisance by what you believed, I just asked them once, it's just the way they responded. ( No money no talk )

Yes, it's a complex matter and that's why I ask people on this forum, hoping I can see some lights.

I was taught, raised, and educated that there is justice in this country and I am not seeking anything extra but a fair judgment from Lady Justice.

Well, I guessed that the letting agent might make a mistake about the guarantor on the periodic agreement, It's my bad luck again then.

Thank you so much!

Just be grateful to get the place back. I have been through this twice and had to write off arrears and legal fees both times. You are chasing people with nothing and will just give yourself a few more weeks of upset. Pit it down to experience and if you stay in this business try to be a little more selective next time.

You've made a number of mistakes:
1. There is no need to 'renew' a tenancy agreement. Its almost always better for the landlord to allow it to go periodic in case they need to serve notice.
2. Break clauses are often poorly drafted and either do nothing or not what was intended. See point 1
3. Its unlikely that a guarantor agreement will survive a replacement tenancy, although if correctly drafted, it may be possible for them to survive the transition to a periodic tenancy - see point 1.
4. A s21 notice does not end the tenancy and does not compel the tenant to leave, so advertising the property for sale was premature.
5. Unless you've used a specialist housing solicitor, there is a reasonable chance that the one you've retained will get things wrong as its a complex area. Unless the correct s8 form has been issued it will be a failure. If you've used ground 8 then unless the tenant is in 2 months arrears at the time of both the notice and the court case, the notice will fail. If you've used other grounds, they will be discretionary and the claim will likely fail
MCOL is a claim that you will make against the tenant for money, although whether you get any will depend on whether they have any. A CCJ is what the court issues to require the tenant to pay you the money if you're successful.
You can ask the judge for the court fees, but they don't always award them. You've no chance of getting the costs of the aborted sale as that was your fault.

1) Should not have issued a 2nd AST but let it roll on to a monthly periodic tenancy. But to answer if you issued a new AST in June 22 then depending on how your Guarantor Agreement was worded (and it should state current and subsequent renewals) you should have re-issued the Guarantor Agreement and re-done credit checks. Was the Guarantor a homeowner? If not they should be.
If your original Guarantor Agreement covers renewals then contact the guarantor. If no joy then can issue a MCOL against the guarantor as well as the tenant. Obviously if you get the money from either then a certificate of satisfaction to both of them via the court.
2)What’s the difference between CCJ & MCOL? A MCOL will give the person you are claiming owes you money a CCJ. A CCJ as a result of going to court for a Possession Order AND and Money Order will also give the tenant a CCJ IF they don't pay off
the Money Order as per the terms of the judgment.
3) If you are referring to what can you use the deposit for this is good https://www.otssolicitors.co.uk/news/what-can-landlord-deduct-from-tenants-deposit/
Ideally your tenancy agreement should have also identified what the deposit can be used against.
4) Yes. S21 and S8 solicitors’ fees and the court fees AND interest (usually 8%)
5) No. You took the risk that the tenant would move out. But you may be able to use abortive legal costs in your CGT allowance calculations when you do sell.
6) You did a credit reference check on renewal? Did you do the property inspections - are his goods (not anything that the tenant can use in the course of employment eg phones, computers, car etc etc) worth anything? Is the tenant employed? If so you could ask the court to make the Money Order (or if you have to wait for a Bailiffs Order) an attachment to earnings, but might not get it or would get a silly monthly amount.
Welcome to the joys of Landlording.

Reply to the comment left by David at 07/02/2023 - 12:09
Great response David.
Is there a downside to having a period tenancy?

Some banks and insurance companies want you to have an AST?
(Is a periodic tenancy compatible with that?)

With a periodic tenancy do the tenants only have to give one month's notice?

Reply to the comment left by Susan Bradley at 07/02/2023 - 11:43You are right. Theoretically a landlord has redress against tenants for rent arrears, damage, legal costs etc. but good luck getting it. Mostly you just have to suck it up and be grateful you have your property back. You might have a CCJ but the tenants will just vanish. You can pay somebody to find them but they won’t have any money. They might agree to pay you back in installments but probably won’t keep the payments up. A CCJ lasts a while. I was advised that it might be better to wait a few years until the ex-tenant has relaxed acquired some assets you can go after or is settled in a job and you can get an attachment of earnings. In the end I didn’t bother and I don’t think I am alone in doing this. Life is too short. Talking about redress for damage a few years ago the police smashed in a tenant’s front door during a drugs raid (the tenant got 4 years subsequently). The police policy in my area is that they won’t pay for the damage if they actually find the person they are after in the house (is this the same in other areas?). It’s as if as a landlord you are punished for unwittingly harbouring criminals! In a twist to this story the tenant’s girlfriend was still in the house and she arranged via “contacts” to have the UPV door and surround replaced next day far quicker than we could have arranged it. We still evicted her using a section 21. Once she was gone we had a succession of neighbours asking us if the tenants were really gone as they had been kept awake by the numbers of “visitors” turning up at all hours. The neighbours had nobody to complain to as they didn’t know who the landlord or agent were and they were frightened to make a complaint to the police for fear of repercussions. Most evictions for antisocial behaviour are currently done via Section 21. When this shifts to section 8 who will provide proof of anti-social behaviour and what level of proof will be required?

Reply to the comment left by Susan Bradley at 07/02/2023 - 11:43
Thank you, will consider that.

Reply to the comment left by David at 07/02/2023 - 12:09
Got it, understand, cheers!

Reply to the comment left by Judith Wordsworth at 07/02/2023 - 12:18
Yes, I found the AST wording '' For the avoidance of doubt, the guarantor obligations under this guarantee continue during any periodic tenancy
(including statutory periodic tenancy) and includes any rent increases and includes any re-grant of a tenancy.
The guarantor may not revoke this guarantee (whether during the fixed term or during any periodic tenancy) by
notice or otherwise, unless a new suitable guarantee is provided to take effect from the time this guarantee is
revoked''

Sounds like I can ask the guarantor too!