Tenant can’t pay rent and advised to stay by Housing Association!

Reply to the comment left by Kate Mellor at 12/01/2019 - 19:58
Have you not read S5(1) Housing Act 1988?

Reply to the comment left by Michael Barnes at 20/01/2019 - 23:41
Yes, thank you Michael. I understand a tenancy doesn’t end on the expiry of the notice period.

My argument is that HA 5(1) only becomes a genuine right, when the tenant has reason to believe that the landlord is in breach of contract, or hasn’t correctly served the notice. Then it’s for a court to decide which party is correct.

The tenant has a legally enforceable, contractual obligation under the AST to leave at the end of the correctly served notice period, hence the reason landlords can successfully claim their costs back from the tenant if they don’t abide by their agreement.

How can a legal obligation to do one thing coexist with the legal right to do the opposite?

It doesn’t, if the other party has met all their obligations under the agreement, then your obligations stand. BUT the fact is no one can stop you from breaking your agreement despite your knowledge that you have no legal grounds to challenge the eviction and awaiting the courts decision - and the penalty of costs awarded against you.

There are plenty of instances in law where the victim of a breach of contract has no legal remedy other than having a court decision, and you could argue we all have the right to breach a contract if we so choose, but we risk the legal consequences. We have the right of free choice after all, but I don’t believe having the ABILITY to do something is the same as having a legal right.

I don’t personally feel that councils have the right to force tenants to breach their legal agreements and put themselves into a position of taking on court & bailiff costs and going through the stress, humiliation & hardship of being physically ejected with their children and all they can carry into the street. There’s nothing RIGHT about that. But they do have the ability to do it.

Reply to the comment left by Kate Mellor at 21/01/2019 - 10:30
You are entitled to your opinion; that does not make it correct.

Reply to the comment left by Michael Barnes at 21/01/2019 - 22:47
Quite right. Just to clarify why I believe what I’ve said from a more legal standpoint and a less emotional basis, although I know many will disagree.
S 5(1) serves a crucial role in protecting both tenant’s and landlord’s rights. It is crucial that the tenancy continues for at least the following reasons:
1) The tenant’s right to challenge the eviction in court must be preserved until a final decision on the legality of the eviction is made if the tenant contests the eviction.
2) The rights and obligations set out under the tenancy must be maintained until the property is returned to the landlord. eg the landlord can continue to demand rent until the property is returned.
However, to misuse the law for one’s own ends is not necessarily preserved as a right. This law was not designed to be misused by a tenant who has no intention of challenging the eviction or even turning up in court and whose entire purpose in staying on is to delay a rightfully executed notice and avoid their contractual obligations (and probably gain several months rent-free accommodation).
My legal arguments for challenging the right of tenant to stay on carte blanche is the fact that to do so in the circumstances I’ve specifically mentioned would constitute an ‘abuse of process’, which is basically the misuse of an existing legislation for an unintended purpose. I would argue that the above would fit three of the examples given in the CPR 1998 as follows: ‘Pointless and wasteful litigation’, ‘Improper collateral purpose’ & ‘Delay’. I also believe that it constitutes ‘acting in bad faith’ which is basically dishonest dealings.
Sadly this usage of the law has become so prevalent and socially acceptable that no one bats an eyelid. I think you’d feel differently if a used car dealer kept your money or goods dishonestly and argued their right to keep doing so until you produced the bailiffs to make the collection.
The very fact that costs are awarded to the landlord in these cases proves the tenant was wrong in law to stay on in the property, If they make a genuine challenge then they’ve done so for an honest reason and whilst still wrong it isn’t an abuse of process. The fact that no intention to challenge exists from the outset to my logic more or less proves it is one. As there is no downside to councils only benefits they continue to insist on it.
I appreciate you & many others may not agree, I am not a lawyer and have only studied law as part of another degree. I just wanted to make the point that I do have a reasoning for my belief, as otherwise I’m just some oddball who seems to be claiming black is white.