Case law on charging for rent arrears?

Inconsistencies between different District Judges are a real problem. The problem is unresovable because the appeals mechanism is too cumbersome and expensive

As a matter of course we issue sec 8 against Tenants for rent arrears only. We do this because they are still in occupation and we are not in a position to finalise any damages claim until they have vacated. So we have to issue twice to secure recovery of damages any way.

When vacated we do a full damages and charges check and then sue the guarantor independently including of course any costs awarded on the sec 8 court case.

I have associates who do join guarantors in on the sec 8 as a co defendant but i don't think this is wise. Guarantors are more likely to get involved and fund a defence that could become complex by a counter claim for damages for disrepair.You might not your house back for months!! Additionally you are going to have to issue separate proceedings after they have left any way for any damages

Divide and rule. Sue tenants and guarantors separately

Interesting Twitter responses from Anthony Gold solicitors

@iAmALandlord @landlordtweets @TessaShepperson @LandlordAction No, they can't do that.

— Nearly Legal (@nearlylegal) December 18, 2013

@iAmALandlord Simple principle. Rent paid is rent paid, can’t unilaterally and retrospectively decide it was paid for something else.

— Nearly Legal (@nearlylegal) December 18, 2013

@iAmALandlord Because judges get it wrong. That is why there are lawyers, to persuade them not to.

— Nearly Legal (@nearlylegal) December 18, 2013

I don't see why you hire a debt collector in such cases, but that's another issue.

As said, the £150 fee is not rent so is not recoverable through s.8 proceedings based on rent arrears. If you argue that tenant is liable to pay this fee then you need to go the money claim route.

Reply to the comment left by "Andrew Miller" at "18/12/2013 - 18:06":

Thanks for your comment(s), Mark, Andrew and Nearly Legal perhaps I should put a looming problem down as an example.

So see how you would navigate this, as you say other associates have a similar approach that may differ yours.

2 tenants, (1 male, 1 female) moved into a 5 person HMO 3 months ago, have an argument and the male tenant pushes his fist at high speed into her face for the pleasure. But they also have started to run up some rent arrears.

The female abandons her tenancy and goes to live with mum.

The male tenant nor the female actually lodge a complaint, but another female house mate, fearing for her safety, in the HMO does, .

I issue a section 8 for grounds 10, 11, 12 and 13 for rent arrears and breaches of tenancy as the complainant is insisting that I do something about the remaining tenant.

I cant use grounds 14 because I don't have a crime number.

Upon receipt of his section 8 notice, the male tenant does a runner as well, but changes the security code on his entrance door out of spite, so I cant gain entry and no property keys are returned. I have no legal right to be told of their new code, except to know that its going to get expensive.

I have written to the guarantor and female tenant who have ignored my requests for assistance.
The battered tenant has gone back living with her boyfriend, but I cant find out where, (Yet!).

An abandonment notice has been issued as well as the Section 8.

Both items are listed in the tenancy agreement as chargeable events, as is replacing doors and locks, but only if the Police do the breaking down of the door.

The section 8 notice becomes usable after 25th December, 2013, and at that point I have to decide whether to use PCOL, (Possession Claim Online),or the manual forms that allow also abandonment etc., but I have to pay a higher court fee.

I also know that without a security code being divulged the entrance door will have to be smashed open to gain entry, which will then require a door frame, new fire door, definitely a new digital lock and a change of all external locks for the existing house mates.(Cost approx £400)

I could smash the door down tomorrow, but I'm not that stupid as to fall for that trap.

My normal reaction would be to get on with it, by gaining emergency access as a landlord, (All chargeable under our tenancy agreement).

But come the day of my court application, I will have grounds 8 available, but not on my section 8, which was initially triggered by a written complaint from another house mate.

So my questions are Mark, Andrew and Nearly Legal, how would you proceed?

Firstly PCOL is only designed for rent arrears, other grounds being entered into that computer system is like trying to push a rope. - Would you agree?

Next, my tenancy agreement lists charges that would be triggered by certain events which the tenants have indeed triggered and in my view should be chargeable against the balance of any monies paid already, leaving just outstanding rent arrears, for the court to handle.

I don't mind the judge fiddling with the figures at the hearing, that's called a judgement.

Bear in mind that there is a guarantor, who has guaranteed the two tenants will not breach their tenancy

The point of this question is to get me through the God Damn Court application form or PCOL, without having multiple court cases, if at all possible.

I have gone down the route of separate cases before and a guarantor actually used a defence of me bringing a "Vexatious claim" that should have been brought at the time of the case against the original tenant, who we couldn't trace and the judge agreed.

Since that day I stick everyone on the one and only claim form, I normally make.
but its quite stressful being shouted at by some judges and others have said, "so long as that guarantors name was on that claim form I will make a judgement."
So I just don't know what to do with this one really.

As for the comment of lawyers persuading judges not to get it wrong, isn't the idea of the small claims service, I thought it was designed to preclude lawyers and keep costs down, so that they could get on with dealing with murderers and fraudsters instead.

What do you think and why?
Ps. Thank you for your time.

Reply to the comment left by "Gary Dully" at "18/12/2013 - 23:28":

Hi Gary

I have never had this problem.

However, my starting point would be a call to the guarantor and preferably arrange a meeting over a cuppa to explain the situation and their liability. You might just find they sort the problem for you when they realise they will cop for all these costs if they can't get them sorted for you.

I would probably deal with the possession and the claim against the guarantor separately.

Have a look at this readers questions article and my response, it may save you a lot of money in terms of dealing with the debt collection aspect of your problem >>> http://www.property118.com/good-debt-recovery-agent/44679/
.

Gary thats one hell off a problem

but to keep it simple i would go for sec 8 possession rent arrears only against the tenant.

as soon as i had secure vacant possession i would then do a full damages check and sue the guarantor for all costs including the judgement you have obtained against the tenant.That will include the £175 court costs.

i don't bother suing tenants for monetary values save of course for arrears on the sec 8 trigger . whats the point they have few if any assets

we only let to tenants who have home owner guarantors and when we have secured a judgement against them proceed to obtain and register a charge against their home. At long last CCJ's mean something and we often eventually secure full recovery from guarantors who have something to loose i.e. an inability to secure future credit.

I was reading that the landlord had to serve a Section 17 notice to the guarantor within 6 months of the debt but cannot find this form anywhere. Just going through the court process to get possession order, although tenant has moved and is refusing to surrender keys or tenancy