Caught out by tenant paying council tax at another property?

Reply to the comment left by "Peter Fredericks" at "27/06/2016 - 13:15":

The situation is even more complicated. A periodic tenancy can be either 'Contractual' or 'Statutory'. If the latter, which is the default, then there is also a residency test as the tenancy is for less than six months (Oyston v Leeds City Council is very informative). If the former than as a contractual periodic tenancy is not a new tenancy then there is no residency test. Of course if in the fixed period, which by definition is more than six months, then the tenant is liable.
A contractual periodic tenancy must be defined in your tenancy agreement.
Whatever the situation it is probably a try on with the local council who should be aware that section 6 of the Local Authority Finance Act 2002 applies. Sidebotham v Holland [1895] determines the exact moment that a tenancy ends (took me 10 years to convince my local authority so don't give up early). Distress for Rent Act 1737, section 18 allows you to charge double rent for any period after they said they would leave. I have used this much to the consternation of the tenant.

If any lesson can be learnt from this it is that your tenancy agreement should state that the tenancy ends at midnight (this avoids the landlord being charged for the last day) and that any default continuation after the fixed period is a Contractual tenancy, thus avoiding landlord liability when the tenant does a runner.

David, just to clarify one source you quote if I may?
I think that the correct authority is the Local Government Finance Act 1992. Section 6 (2) of LGFA 1992 sets out the hierarchy of liability for council tax, ending with "the owner of the dwelling" if all else fails.

This is a complicated area of the law which these atrocious venal local authorities have been using ever increasingly to knock further financial stuffing out of landlords. In my experience there are many agents, including some of the bigger franchisees, who seem almost clueless on these sorts of issues and fail to put proper provision in their tenancy agreements protecting the landlord.

I think the council have misadvised you - I am refurbishing three terraced cottages and pay council tax on all of them, plus my own home. So unless there is a specific rule for rental properties, rather than for owning them I would question them about it.

Good luck

Reply to the comment left by "Helen Danchin" at "27/06/2016 - 17:55":

Helen, in your circumstances you are likely to be liable for Council Tax for all three properties UNLESS your local authority allows exemptions. The so-called Schedule C Council Tax exemptions are now significantly restricted by many English local authorities such that, for example, you may have no entitlement to either a period of exemption or a percentage reduction when a property becomes void. The coalition government legislated to remove the automatic 6-month 100% exemption some time ago and delegated the matter of exemptions to individual local authorities. However, some local authorities do allow exemptions for major works whilst properties are being refurbished but the criteria tend to be strict. It is worth checking that you are receiving the exemptions to which you may be entitled if you are undertaking major works.

James' circumstances are different from yours. He has had a tenant leave a property during a tenancy and take up residency at another property. Whilst James' tenancy agreement may require the tenant to pay the Council Tax (the usual position), the Council can insist that the landlord pay the Council Tax UNLESS the tenancy agreement states that the tenancy becomes a contractual periodic tenancy after the end of the fixed period. Many landlords have been badly stung over this abstruse legal point and the landlord may be obliged to sue the tenants for the loss.

By the way, I do listen to local authorities on Council Tax but what they say needs careful and sometimes expert scrutiny. I came across an authority recently which allowed me an exemption and then changed its mind!

James, sorry to hear your dilemma with your Council, this seems grossly unfair. The fact they rented 2 properties legally or illegally as long as you have provided a proof to the Council such as Tenancy Agreement, Possession Order or any documents which point to the fact that, this period in question is sole responsibility of tenant then they can not enforce this debt upon you.

If I were you, I know this sounds rather bullish, I would attend court and present my case to the judge as any judge with half a brain cell should be able to find the case in your favour.

I had similar case, not exactly the same when my Local council in London rejected my representations for Council Tax going back 9 years when tenant owed 6 months worth of Council tax, but no longer resided at the property.

I contacted my local paper namely Chronicle and advised them the issues I was facing with Council in question, the paper contacted Council's spokesman (the team who deals with media) they immediately decided to write off historic bill without any referral to Revenue Officer. I later got confirmation in writing that debt had been written off. May be you could get in contact with your local paper, this may play the trick?

Peter, why the difference if it is a periodic tenancy, because a standard AST clearly states that the tenant Is Liable for all utilities including council tax, if the fixed term ends on the AST and the tenant makes 1 payment of rent that is implicit that the tenant has agreed to carry on renting under a periodic tenancy rolling over from month to month; legally bound by the same term & conditions in the original AST as long as the rent is for the same amount. Are you telling me that if it's a periodic tenancy that the landlord is responsible for the council tax under this agreement then surly he would be responsible if the same tenant stopped paying electric gas and water...

I believe the tenant has to pay all utilities including council tax until the date of eviction, the date the possession of order is enforced.and the landlord has legal title to his property again.

I would employ a solicitor to show the council the original AST pointing out the tenants utility responsibilities...and force the council to raise a ccj on the old tenant who chose to move ont ilegally and take on two council tax bills.

Reply to the comment left by "Paul Green" at "27/06/2016 - 20:39":

Paul, there are two sets of relationships going on here: first, the landlord-tenant one under which the tenant is liable for the Council Tax to the landlord assuming the AST requires that (which it normally would); and secondly,the Council-property owner relationship as regulated by the Local Government Act 1992 Section 6(2) under which the Council is entitled to recover Council Tax against the owner instead of the resident under certain circumstances. During the fixed period the tenant is liable for the tax wherever he/she resides under one of the conditions of hierarchy set out in Clause 6(2) (a) - (e). The owner becomes responsible after the fixed period if a periodic tenancy rather than a contractual periodic tenancy kicks in and if the tenant resides elsewhere.

There is case law which Councils have relied upon where a periodic tenancy exists and the tenant is no longer resident at the property. I have had the following quoted at me: Macattram v Camden London Borough Council [2012], EWHC 1033, where a "material interest" was applied when determining residency and liability. The position is very complicated and arguably yet another mess brought about by the established political class in local and central government who are of course now at war with landlords on various fronts (especially the licensed theft under Section 24 of the Finance Act 2015).

Hello everyone,

Thanks so much for your brilliant comments - really useful.

The tenant owes me £5177 rent and £390 for the bailiffs fees. If I have to pay the £580 quid CT I'll small claim that back too. Is it possible to claim the £390 quid back on small claim?

1. I will go to CAB and see what they say, also write to MP, who funnily enough I have to meet in an entirely unconnected matter through work anyway.
2. Love the idea of going to local paper - deffo do that.
3. If given the chance to present my case at hearing I will do that - if they give me a chance and let me know when it is happening.
4. I will ask about which regulation they are applying that I am liable.

I have sent all docs to the council; tenancy agreement, notice of service to leave, summary of unpaid rent, court orders, photos of the appalling state of the house, even a hand written letter that the tenant wrote on the day they were booted out in which they admit to being in the property!

The council received all of those docs at the beginning of may, which makes the liability order even stranger - that is dated 25 May! I only received it this Friday! They are also now asking for me to pay all of 16/17 council tax up front, even though the house is not habitable and I have put in an abatement of the Council Tax.

I spoke again to the council yesterday. They said that everything was on hold and under review? Why the threatening letters then? They didn't know and assured me that it was being reviewed. When will that happen? Don't know - there is a backlog. Will they send me that in writing? They resisted this.

Feel much more confident that I can get the tax bill written off, or transferred to the tenant now thanks to your advice - so thanks very much.

James

Reply to the comment left by "Peter Fredericks" at "28/06/2016 - 09:35":

Thanks, Peter for you detailed explanation of the law, around this issue of "who is responsible for council tax under different types of tenancy, you obviously no your onions...:)

@James
I had a very identical experience to yours late last year on this exact issue although mine was limited only to the council tax part. My experience of dogged challenge to the council over the bill is that is a futile exercise. They won't change their position because they won't get involved in legal wranglings between a tenant and a landlord - they are only following rules given to them by higher powers, it's nothing personal against you. As friendly and as empathetic as they were to me (and they may be so with you also) I had to and I paid the tax.
Following my payment, I immediately pursued the tenant in question through the small claims court and on the strength of the information in the tenancy agreement i.e. responsibility for council tax payments until the end of the tenancy, I secured a judgment and the former tenant refunded the council tax plus interest and costs to me within 10 days. As far as the district judge was concerned, it was a close and shut case in my favour.

Obviously, the challenge that may arise for you would be that of whether or not your former tenants have the means to pay - you may want to ascertain that first. This can be done at a relatively low cost before you proceed. If they have the means, you've got a good case. If they don't have the means at the moment, you may wish to consider biding your time until they do so. You have up to six years form the end of the tenancy.

Good luck with it.