Tenant gave us notice but now refuses to move out!

Dave

This is a long shot but if the former tenant is trespassing could they also be considered to be squatting which is now a criminal offence?
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Just reading the comment from Dave Reaney. I don't know where Susan Owen's property is, but if it is London you can forget a court hearing within that time scale! You would need to wait 3-6 months for possession in a straightforward S.21 with no defence, and if the tenant did not vacate on the court date and you had to get the baliffs involved, that can be another long wait (I've heard anything from 6 weeks and up, but that might just depend on time of year etc, I cannot confirm on that).

Thinking further on this point, I always sign the tenants up beforehand (with current tenants still in situ) and have a clause in my contract (written by the excellent Tessa Shepperson, Landlord Law) to guard against the situation whereby the existing tenant does not leave.

I also do not sign the Agreement, as Landlord, until the day of the tenancy once I know everything is OK, all monies received etc.

I don't agree that the tenant who did not vacate is now a trespasser. Surely the court would look to see how that person came to being in the property in the first place (AST) and the fact that they remained in the property after that time (despite having given notice which was accepted by the landlord) that tenancy would now have become a periodic tenancy, assuming the landlord is still going to accept rent - which could be paid straight into her bank account so difficult to refuse.

I see the only solution is to serve S.21 immediately, apologise profusely to the incoming tenants (who may have a claim against this landlord as she is now refusing their tenancy which she previously agreed to, but be nice and hopefully they will not pursue this) and act quickly to get the remaining tenant OUT.

In future yes a S.21 should be served on EVERY tenant. I serve it when I send the Deposit protection certificate and prescribed info. etc as I can then explain it all in one go (ie. bureaucracy but legally obliged to serve it, so here it is, please keep it), then if they receive the deposit info. they cannot state to have not received the S.21 notice.

Reply to the comment left by "Mark Alexander" at "19/08/2013 - 19:14":

I don't believe so Mark. The occupants status as former tenants gives them a special status as trespassers (will look up the legislation) which is why the court order is required.

I should also point out that an eviction for trespass is different forms than those used for AST evictions. Also the issue of 'double rent' (Distress for rent Act) is a very grey area, specifically in a situation where a joint tenancy is ended by one of the tenants (possibly departed partner) and the other tenant stays in situ. The only trespasser is the remaining person and as it was not he/she who gave notice, they would not be liable for the double penalt

Can I make a suggestion....may be a bit naïve to suggest this, but common sense says if you can avoid legals, you should! Do you know any other landlords in the area who have a void at the moment? Maybe they could re-house your current tenant for a few weeks, obviously taking a risk as not on an AST, but could be a good commercial & practical solution all round?

Reply to the comment left by "Yvette Newbury " at "19/08/2013 - 20:01":

Reading Yvettes second post, the only way valid/accepted notice does not end the tenancy is if that notice is served during the fixed term. Time hasn't allowed me to go back and check - was that the case in this scenario?

Unlike tenancy possession claims trespass has specific deadlines for the hearing and I am sure it is 8 days maximum. Different claims have different deadlines. A general 'small claim' might take as long as a 'possession claim' but if a claim for an injunction against a violent partner took as long we would all be up in arms.

I have spent some time this evening looking through the Civil Procedure Rules and although they imply that trespass is dealt with differently, I can not find the 8 day rule. All I have so far works slightly against that - ie the trespasser must receive the claim no less than 5 days before the hearing.

I am going to have to re-research this - you pick up 'facts' along the way from 'experts' but don't always check their foundation

Finally, although CC Bailiffs can take up to 12 weeks in your area, High Court Enforcement Officers (in effect, commercial bailiffs) can have your tenant removed about a week after the court possession date (at a price).

Reply to the comment left by "Kirsty McGregor" at "19/08/2013 - 20:51":

Kirsty, it would be an AST (even if not written) and therefore could be a major risk for the new landlord not being able to gain s21 possession for 6 month

Firstly, Thank you to all for your advice it has given me some food for thought and is very much appreciated. We are actually in the process of purchasing another property and heard today that it should be through by the end of August. I have offered this to my existing tenant but she doesn't want the hassle of moving twice so it looks as though the new tenants will move into that property until the other one becomes vacant. I will put them on an AST at that property and the current tenant is being served a section 21 notice tomorrow. Situation is not ideal but at least both will have a home and we will have a deadline for a change over within 8 - 12 weeks time. I am conscious not to stress the new tenant too much while she is expecting. Also means the current tenant has at least 8 weeks to move into the other house. Hopefully a Solution to the problem.
May well look at serving a section 21 notice to sit along side the AST just incase the problem should arise with another tenant in future.

Reply to the comment left by "Susan Owen" at "19/08/2013 - 22:14":

Well done Susan, do consider a deed of assurance too. I'm sure your expectant tenant would really appreciate an assurance like that, especially with everything she's been through 🙂
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Reply to the comment left by "Yvette Newbury " at "19/08/2013 - 20:01":

If you send an S21 with the deposit scheme prescribed information you are leaving yourself open to a tenant claiming that the S21 was served before the PI.