Ex tenant problems

Reply to the comment left by "Gary Dully" at "03/09/2013 - 10:09":

A landlord is free to accept defective notice, and once accepted, the law considers it valid.

The only situation the LL can not do this is where the notice comes from 1 party of a joint tenancy, where (to protect the other joint tenants) it has to be valid as per PfEA and common law.

Of course, any landlord is free to not accept a defective notice.

Reply to the comment left by "Mark Alexander" at "03/09/2013 - 10:49":

Mark,

No confusion is intended.

I am not discussing anything except the terms a tenant should give and honour from their tenancy agreement or the Prevention From Eviction Act.

Prescribed information for the tenant is simply explained in the Prevention from Eviction Act, which is what landlords who successfully argue in court that they are entitled to.

That being  4 weeks notice from a tenant who wishes to end a periodic tenancy, but do a bunk after 1 days notice etc.

The act also allows for a private agreement between both parties, but not if they don't both agree. Should that be the case - its states, as mentioned previously, that the notice shall not be valid unless written, ends on a rental period and is for a minimum period of 4 weeks.

It doesn't voice your or my opinion or what it states on property118.com, what it states is  what the law says today.

I am actually reading the actual act on my screen and I cant see this section being repealed as for the act you are mentioning - I will have a ferret through that as well as its always nice to see the latest idiocy from parliament.

It also matches Shelters advice to tenants and various local authority websites such as http://www.bristol.gov.uk/sites/default/files/documents/housing/private_housing/private_tenants/Ending%20assured%20shorthold%20tenancies%20(end%20of%20a%20fixed%20term).pdf
However, that being said - landlords should have the appropriate terms in their tenancy agreements to protect themselves as a landlord as a periodic tenancy should continue under the same terms and conditions as the original tenancy.

As we all know a periodic tenancy has now been declared a new tenancy by the Supreme Court requiring deposits etc. to be re-protected.

They have to be based on something other than your aunt Aggie's opinion and one would assume that it would be under the same terms and conditions as the first tenancy that the periodic one arose from.

Or are you aware of a basic statutory template tenancy that all agreements fall to? - Of course not, because there isn't one. There is talk of one, but I don't think your members have one in their filing cabinet.

I am not talking about the time required by a tenant from a landlord - that as we all know is 2 months etc and not before the fixed term has expired, this is simply a reference to assist landlords, who despite having contracts with tenants that are under constant scrutiny and attack from all sides, actually have a bit of statute that can guide them in the act, especially if the original tenancy agreement was bought at WH Smiths and is 10 years out of date.

I have had tenants do a bunk with no notice and a fleeting text saying they have changed their name by deed poll and taken a tablet that changes their blood group, but I have successfully won outstanding notice rent via the courts.

Your member is in distress who asked the original question and I simply offer what I use against a tenant in such circumstances. The final judgement is by the court, but they are sympathetic to breaches of contract concerning money, if not very sympathetic for legal possession of a property.

I can only tell you what has worked for me in obtaining a judgement against tenants that don't give notice.

I may be mistaken, but I'm not as poor as I would have been if I had let a tenant leave me in a mess.

Reply to the comment left by "Gary Dully" at "03/09/2013 - 12:28":

Clauses and conditions for terminating a tenancy do not carry over from fixed term into SPT.

Reply to the comment left by "Gary Dully" at "03/09/2013 - 12:28":

Hi Gary

I do not wish to offend you but your comment is so muddled I barely know where to start.

The Court case which I suspect you are referring to was Superstrike Ltd vs Manuel Rodriguez and others. However, it was heard in the Court of Appeal and not the Supreme Court. Further, the Housing Minister has confirmed in writing to both the NLA and the RLA that the legislation interpreted in that particular Court case was not as was originally intended and that Government have it high on their agenda to address this particular issue. However, that case is all about the implications of prescribed information having been served correctly when a landlord wishes to evict a tenant, NOT a tenant wishing to give notice to a landlord of intention to vacate.

The link you provided does not work.

If I'm reading into your implied suggestions correctly you appear to be saying that a tenant can walk away from a statutory periodic tenancy with no notice if a landlord has failed to issue prescribed information. You also appear to be suggesting this is the advice from Shelter and others. I have not seen this advice and if indeed it does exist (and I very much doubt that) then I believe it would be wrong and has no legal foundation. By all means prove me wrong.

I can see no relevance or relationship between the prevention of eviction act 1977, a tenant serving notice to vacate a property upon a landlord, the deposit protection legislation from 2004 and 2011 and Court Cases regarding deposit protection since. To me it's a bit like comparing the invention of Corn Flakes to laws on wearing seat belts and referring to a point made by an X-Factor judge last Saturday, i.e. all completely unrelated.
.

Reply to the comment left by "Mark Alexander" at "03/09/2013 - 14:26":

Mark,
I have been working away from home and have just read your posting.
So please let me clarify what it is that I am referring to.
Its a long posting, but its important to help your landlord in distress. It will never get to court if he handles this better and he will be better prepared next time it happens.
Forget the word 'prescribed' and the notice a landlord should give, that is not the issue the original poster is dealing with.

The mistake the original poster is making at this stage is trying to be a solicitor.
You are not anywhere near that stage yet, the tenant is currently bluffing and being very vocal.

The original poster is dealing with "Human Nature" , not the law, as he hasn't got to litigation yet.

The original post I answered said his tenant had buggered off without 4 weeks notice and was also threatening retribution by complaining about bad repairs etc.
(I hope I'm remembering this correctly).
My comment was to deal with the lack of 4 weeks notice and how I deal with it.
It still happens to me, but I now deal with it from a position of strength and not fear as the original poster is attempting to do.

On previous occasions I have had various tenants in periodic and fixed term tenancies, simply walk away from their contract making an assumption that just because they have found other places to stay at short notice that I would not insist on 4 weeks notice or that a fixed term contract is honoured until I Re-rent a property.
This applies especially to workers who work for Powergen etc, who thought they could get away with treating my HMO's as Premier Inns or Bed & Breakfasts after signing a six month tenancy. They don't do it any-more I can assure you!

After several of these events happening to me such as is happening to the original posting on this forum, the question appeared to be what would people recommend them to do.

My response has nothing to do with what notice a landlord should give, that is something as a landlord that we all learn at networking events and forums such as Property118.com.
(Forget Section 21's at this stage etc)

However, both your forum and others never appear to address the issue of what happens?, when a tenant just gives you half a days notice and leaves you in the situation of a void period you weren't expecting, have not planned for and in fairness is a breach of contract.

I have been in this position previously and to be honest I have had enough of tenants treating my business as a convenience to dump on, to the benefit of a different landlord and a financial loss to my business.

I was at Birkenhead County Court at a repossession hearing, where the tenant didn't show up. So after we had dealt with that case and I got a repossession order, there was about 10 minutes of allocated time left, so I thought I would see how a judge viewed this scenario.
So I asked the judge if he would be so kind as to advise me of such a scenario.

The first thing he did was rip another hole in my arse for asking for free legal advice, but he also sympathised with my situation and suggested that I read the prevention from eviction act 1977, focussing on the section regarding validity of Notices To Quit in the Act and to research some case law. He then told me to get out of his chambers as he had other cases to deal with.

Armed with this bit of information, I then duly went through the Act and had half a day researching notices to quit and what other people were saying from Shelter to local authorities on Google.

I then asked a solicitor that I knew and guess what? - he didn't know the answer, but two of my letting agents did the other 4 letting agents I used didn't have a clue.

There is case law to support what I have written, but more importantly I have been successful in the small claims court claiming for unpaid notice period from tenants that should have given me 4 weeks notice, but didn't.

But I had to quote the Act in the particulars of the claim.

I have read some of the responses to my original response and I have also seen publications and forum posts elsewhere that say that a tenant doesn't have to give any notice in a periodic tenancy.

As far I'm concerned, I'm not prepared to accept that.

The reason is what it says in the Prevention From Eviction Act as mentioned in my previous post.

It says what it says.
I'm not interested that the information has to be 'prescribed' from a tenant, that's a hurdle that a landlord would have to overcome in a court case, most tenants cant even pay their rent on time, so to expect them to produce stringent wording like a landlord has to is not feasible and a court would simply throw such a case out as being absurd if it was based on a tenant not doing it in a 'prescribed' manner.

The important bit about the posting I have made is that the law states ........ "no notice by a landlord or a tenant to quit any premises let (whether before or after the commencement of this Act) as a dwelling shall be valid unless"........
(a)it is in writing and contains such information as may be prescribed, and
(b)it is given not less than 4 weeks before the date on which it is to take effect.

It is the last bit that is there to help a landlord.
The prescribed information bit is at the discretion of this weeks housing minister and this months Civil Procedure Rules.

What isn't debatable is the bit that says "4 weeks before the date on which it is to take effect". This law is old and amended, but has not been repealed.

There are various nationwide web sites that state that a periodic tenancy is created by statute automatically with the same terms as the original tenancy, if a new one is not entered into.
I don't know if that is the case or not as I have always assumed that is the case as advised by my letting agents and has not been tested in a court.

What I do know is that the Housing Charity Shelter says in a periodic tenancy you have to give 4 weeks notice, various local authorities web sites say the same thing and if you have any sense as a landlord you should make sure that your tenancy agreement has it stated as a term that the tenant and guarantor signs for.

I have even taken dead tenants to court to end tenancies because a tenancy can be bequeathed to relatives of your tenants, when they pop their clogs.
I have also obtained a money order for the notice period attached to the repossession order. The important thing is to ask the judge for it, if you don't present your case - you will only get what you ask for.

I have had to ask the judge to look at the text of the Act, they don't like it, but they will do it if they aren't sure. Chances are they wont be sure and they wont like being asked to look in their text books, but its is your legal right as a landlord.

There may be case law contradicting what I have written, But it isn't written on my screen at the moment that I'm reading the act on, but my point is this.

In a court chambers a judge is under pressure of workload and will base his decision based on the case presented. He will not base a decision on Landlord vs Gitofatenant 2013, unless it is presented by the tenant or their solicitor.

If you can point to legislation insisting on 4 weeks notice, Shelters web site and your local authorities web site, the judge may in fact quote case law contradicting the act, but if you are in the presence of a judge who doesn't have the time to trawl through case law he will more than likely accept your argument.
He may not allow it, but this is the small claims court not a murder trial.

You need to make a tenant aware that you think your case for 4 weeks notice is valid. That way it wont get as far as a court case.

The original poster on the forum was shitting themselves because their ex tenant was threatening them with half baked legal ideas of property neglect etc, if it was something to worry about - he would be faced with a no win no fee solicitor asking to settle out of court at a cost of a few thousand quid in which case you are in trouble.
The original poster needed a weapon to show their ex- tenant.

I offered a weapon to try, it might not work, but chances are it will if you quote Shelter, The Act and your local authority website.

In addition the local community website offer a booklet concerning required notice, but it also contradicts the Act,which isn't helpful, but it also states that it might be wrong in what is written, but it does state that what really counts is your tenancy agreement, so that is two weapons at your disposal.

Nothing is perfect in property, but if you are dealing with a tenant who wants to destroy you or your reputation - make sure you come back with something useful and place doubt in both their mind and their solicitors. A No win no fee solicitor wants an easy case, not World War 3 over a leaking gutter and broken fence panel.

Stop pussyfooting around and get aggressive in the basis of your case.
Property repairs should be reported in writing to a landlord and it should state that in your tenancy agreement. If it doesn't - then you are at the mercy of your tenants ability to lie.

I am telling you what has worked for me in front of a judge and by sending written demands for outstanding notice. Most never get to a court, but the odd one or two have and I have won. Small claims are normally dealt with without solicitors, that being the case - you have nothing to lose than to quote the Act and offer links to exterior web sites that confirm what you have told your tenant or ex tenant.

Its up to them to argue against you and quote some other legislation that contradicts your argument.
Don't do their work for them, by worrying about case law - that's not your job as a landlord.

They may not believe you at first, but you should plant the seed of doubt in their mind. If you don't - they will tell everybody that you will cave in with a threat that isn't true.

Perhaps I shouldn't use it as often as I do, but until the Act says this clause has been repealed - I intend to use it to my advantage.

Now I know there will be people reading this and chomping at the bit quoting this case and that case, but the original poster didn't want bad news, he wanted to know how us other landlords would deal with it.

My method works for me, it rarely gets to court, but when it has, I have argued my case with conviction because in my mind I am right and its up to my ex tenant to prove me wrong.
The judge will make s decision based on the argument presented to them. If they don't - well hey ho - but I've never been disappointed yet and my tenants no longer mess me about over this issue, without getting a whole load of stress and doubt.

That is what I wanted the original poster on this site to realise.
This is not a litigation case at the moment, it is human nature and that can be dealt with by doubt and uncertainty.

Reply to the comment left by "Mark Alexander" at "30/08/2013 - 16:40":

Sorry it's early and I havent read all the thread but yeah Mark I've prosecuted landlords for failing to comply with a section 1 notice and an agent once for failing to comply with a notice under section 7 of the Protection from Eviction Act 1977, which is where an agent is required to reveal the name and address of a landlord who the authority are considering taking criminal action against.

There is no notice period for a Section 7 notice so It's immediate. I faxed mine to the agent at 10am telling him that if he didnt give me the details by 5pm he was dead meat. He didnt comply and was fined £1,000

Reply to the comment left by "Gary Dully" at "04/09/2013 - 04:17":

Hi Gary

I have got to the bottom of at least one part of the confusion and it is quite clear that we have been talking at crossed purposes, muddled by two similar phrases from unrelated Acts. The confusion arose due to your reference to "such information as may be prescribed" from Protection of Eviction Act 1977 Part II Notice to Quit 5 Validity of notices to quit (1) F14 being including reference to cases and case legislation in respect of "prescribed information" relating to tenancy deposit protection legislation from the 2004 act. That was the first massive curve ball.

So far as the requirements for a tenant to give a landlord a minimum of 4 weeks notice to quit, or as otherwise agreed, we are in agreement. That was the second curve ball because that's not particularly relevant to the Readers Question posted to start this thread. Her tenant moved out three months ago, without having given notice, but that's not what Donna was particularly worried about. Her worry was that the tenant was trying to claim a refund of 8 months rent on the basis that the letting agency did not disclose the identity of the landlord.

The majority of the thread has been a debate around whether a letting agent is allowed to conceal the identity of a landlord and if not, the consequences of doing so. In Donna's case, I'm sure what she really wants to know is whether her tenant has any legal basis to justify her claim for 8 months rent to be refunded. I am confident that the tenant has no such basis for a claim but I would like to be convinced by case law which nobody so far has been able to refer to.
.

Reply to the comment left by "Mark Alexander" at "04/09/2013 - 08:00":

Thanks for the response Mark,

Sorry if I have ventured from your main discussion of hiding a landlords identity.
So my comment to that subject is that the landlord has to give up his details and they should be on the tenancy agreement anyway.

My understanding is that a letting agent is just an agent, legally responsible for nothing, that concerns the tenant, unlike the landlord, and is simply offering to do landlord tasks and offer experience to comply with legislation for a price.
Any 'consideration' in such a contract is between the landlord and tenant at all times.

The landlord has to give his details and any litigation via a letting agent will be actually aimed at the landlord if from a tenant, not the letting agent.

Any default of terms or incompetence between a landlord and letting agent does not involve a tenant and there is no agreement in law or 'consideration' in law for a tenant.

Or in other words - cough up your details Mr Landlord, your tenant has a statutory right to know who you are and where you live.
If that is breached - it will be prosecuted under the law.

I'm not sure any case law would exist for such a severe case of breach of statute.
As the tenant has been denied their statutory right by the letting agent acting on the landlords behalf.

The tenant could bring a case against the landlord - full stop.

The landlord would then have to sue the letting agent for damages due to negligence, but does an agent require a legal qualification to operate - no they don't! unlike a solicitor and would they be held liable for not knowing the law?

At this stage I am saying the tenant is right and the landlord is likely to pay damages to the tenant.

In return the tenant is in breach of having to give notice, (Counter-claim).

Also the landlord should sue the letting agent for damages, should they occur through their professional indemnity insurance, if they have it. If they don't they are in breach of ARLA rules that requires letting agents to have such cover to enable them to be a member and you may be able to get some redress from them.

My own viewpoint is not just a legal one, its a moral one.
If I am renting a property from you - I have a statutory right to know who you are?

No ifs , buts or get out wheezes allowed on that issue.
I already know who your agent is because I was stood outside their shop in the high street, when I saw your advert.

The law says if you don't comply with my statutory rights you have to pay a penalty.

The fact that your agent has withheld your identity is not my problem, its yours!
Both of you are complicit in denying me my statutory right, but the landlord is the one at fault, for letting it happen.

If you cant handle your letting agent - tough luck! - I suggest that you sue them after I have ravaged your bank account to death in court.

I do have a case against you and I may have breached the law under giving notice, but we could play a game of I sue you you, you sue me and you also sue your letting agent.

So Mark, on reflection the landlord has a big problem, despite me discussing 4 weeks notice and the like.

The tenants statutory right has been compromised by the landlord, not the letting agent.
The letting agent is acting upon the landlords instruction and has a sort of 'power of attorney' in regards to the landlord.
As far as I'm concerned, as a tenant, the letting agent IS the landlord and anything they mess up, is legally the landlords fault.

Your Aunt Mabel and Cousin Jake can be a letting agent, but my contract is with YOU, the landlord.

I expect you to maintain my statutory right to know who you are.
If you don't - I will hurt you real bad!

I don't need a list of property repair faults, you have already done enough to help boost my retirement fund.

So back to how to help the original comment poster.

You are in trouble - big style!
You now have to learn the art of negotiation and fast.
I would suggest that you ask your tenant on the phone, if you can speak to them "Without Prejudice", Explaining that anything anyone says during the phone call is not legally binding and "Without Prejudice" and you have looked into the matter and decided that you would like the matter to end by the end of your conversation.

if they agree, then consider telling your ex tenant on the phone (Not in writing at this stage), that your solicitor has told you that you have a case for suing them for breach of the Prevention From Eviction Act, and give them a few web links by text, using someone (else's phone), pointing them towards finding this out on the internet.
Tell them, unless you can talk things through, that you would be forced to sue them for not giving notice and you are intending to sue your letting agent for incompetence and at no time have you granted the agent permission to withhold your details.
Suggest that you are prepared to pay for the damages your letting agent has found in the leaving check out inventory and offer a notional amount towards their inconvenience. Tell them that you think giving them enough for a nice meal etc will go towards their pain in dealing with your idiotic letting agent.
I know there are no damages, (but you are in deep shit and you are negotiating on the phone), if successful tell them your solicitor has told you, they might be held liable for rents due until your property was re-rented and the damages reported by the letting agent.
(This is not law - this is negotiation!)

Remember you have already lost their case against you, as you have taken away their statutory right - you will never win that sort of case, but are prepared to settle out of court for a notional sum of say £350, payable to them to avoid further litigation and stress. (Tell them that the £350 is the down payment your solicitor will be getting in the morning).
As they have been inconvenienced by your letting agents stupidity and you will take them to task on the tenants behalf.

Unless your tenant is being instructed by a solicitor, they should view settling out of court and a quick £350 as an attractive alternative.

If they don't agree, say you feel the offer is generous and that they can come back at any time before the hearing date that the court will send them in due course.
Tell them that your solicitor will contact them in a few days to obtain their solicitors details.
Then let human nature take its course.

Shut up and tell them that you will call them back in 4 days to see if they are open to settling.
At this moment in time, you only should be aiming to get permission to call them back in 4 days time.

If they are open - they will settle.

If they wont settle, ask them why? and then shut up and listen!

If they have not already settled, they are either knowledgeable in the law or under the instruction of a solicitor.

You should remind them that you are piss poor and live with 2 goldfish in a bucket and any damages they think they may get will not be forthcoming and if they were, successful, would be taken out of your housing allowance at £5 per week.

Tell them that you are sorry that they feel that your letting agent has let both you and them down and you will tell your solicitor to prepare to do battle next Monday.

Remind them your solicitor will be surprised that they aren't going to settle as they are likely to get a legal bill of several thousand pounds from their solicitor, during and after the case.
Even if they are a no win - no fee solicitor, they will end up paying.
Tell them you are not worried though because you will be claiming it all back on your legal expenses insurance.
Tell them you've seen similar cases on the web and BBC's watchdog where these solicitors haven't been as truthful as their adverts and your solicitor has told you, its going to be expensive for them and it could take about 9 months to 18 months of arguing before they get any of their rent back.

But you don't want to do that, you would like them to reconsider and ask to ring them back again in two days after they have spoken to their representative.

If that doesn't play on their minds, nothing will.

Now before anyone answers to this posting and tells me its wrong, illegal and whatever, don't bother!
This letting agent, (landlord), has cocked up big time! - the tenant will win their case!

This is an exercise in damage limitation and shows that what is now required is a resolution by negotiation, where the tenant thinks they have given a gift and the landlord thanks God that they read how to try a negotiation tactic.

Don't bother quoting laws and case laws - you cannot take away anybody's statutory right by negotiation or contract.
The tenant will win this case, no ifs buts or maybes about it.

A judge would have to overturn a statutory law for 8 months rent, they wouldn't dare at that level.
Its much easier to nail the landlord and issue a big fine or damages.

So that is what I would do, I wont quote case law to a tenant, I use human nature as a weapon.

Why on earth a landlord wants to hide their identity is a mystery to me, oh and by the way its illegal!

Reply to the comment left by "Gary Dully" at "04/09/2013 - 14:36":

Hi Gary

You may wish to re-read the original post.

Clearly Donna is the letting agent, NOT the landlord.

She doesn't mention whether she is a member of ARLA, NALS or any other professional body.
.

"Tenant leaves no notice, just four page letter of complaints … staff …. other people… everything !I"

- think it’s fair to say everyone agrees that the Tenant SHOULD have given notice as per the legal requirement

"Worth noting at this point.. no complaints at all when in the property, just one boiler issue which was sorted asap and dealt with."

"Before the tenant left we received an email from them asking who the rent money was paid to, name of landlord and where was the deposit. All of the required information was contained in the AST, Deposit Protection Certificate and Prescribed Information"

-. Donna, when you say ALL the required information was given – was the landlords name provided on the tenancy agreement? Or was it the agency?

"Legal for landlords had advised me that I did not need to give landlord address as I was the full acting management agent."

-This is correct, the landlords actual address does not have to be on the Agreement as long as an address in England or Wales is provided as per Section 47. However, in the event the tenant writes requesting the landlords address it MUST then be given as per section 1 & as pointed out earlier.

"The tenant had found out ( I did not know) that the landlords business had been dissolved."

- I do not understand the relevance of this or why this should form the basis of a claim for the tenant to reclaim his rent. Unless of course the landlord did not own the property and the limited co did. Was the rent paid into the ltd company bank account? Additionally, in the event the landlord was the ltd company surely the only rent in question would be that which was paid after the company went bust. Plus, did the company actually go bust and were liquidators involved or was the company simply shut down – there is a difference.

"The tenant now wants all rent back! "

-Why/ Did he not live in the property at the time? Did he not sign a tenancy agreement informing he had to pay rent on a certain date each month ? Is he accusing you of fraud?

"I have paid rent over and never had any returned!"

- As you should of in line with the tenancy agreement/landlord agreement.

"Now the tenant taking me to court asking for some eight months barr 5 days rent back! "

-Again why? What is the basis of his claim ?

"The company is still going ( landlord) but under a different name (not Ltd just a Partnership) which was running prior to but I paid to the Ltd company"

. – Irrelevant unless the landlord did not own the property and the limited company did.

"The tenant seems to want to sabotage my good name for no reason."

- Sadly, sometimes don’t need a reason where money is involved and all reasoning & common sense disappears

"They have been left some three months now but think they can use bully tactics to convince me to part with money that was paid in good will to the landlord "

– If his claim is unfounded then you have nothing to worry about but obviously the tenant needs to be dealt with. If you can clarify the above for me, then I may be able to offer further advice