Landlord and Tenant Disputes – EVICTING TENANTS

Garner & Hancock Gates

GARNER & HANCOCK LANDLORDS SERVICE

Landlord and Tenant Disputes and Recovery of Property

Shorthold Tenancy Agreements

Two Routes for Recovering Possession

s.21 –‘Accelerated possession’  s.8 – possession proceedings 
    • The landlord can claim for possession only[1].
  • The fixed term tenancy has come to an end and no new tenancy has begun.
The landlord can claim for both rent arrears and possessionThe tenant needs to be in 2 months rent arrears
 
  • Give at least two months notice to the tenant in accordance with s.21 Housing Act 1988 that the landlord requires possession.

 

  • Give tenant 2 weeks’ notice to pay outstanding sums for rent.

 

  • Take court proceedings. Sometimes the court gives possession without a hearing. A defence by a tenant is limited to technical and legal issues.
 Take Court Proceedings. There will always be a hearing. You are also at risk to a defence being filed from the tenant about a counter claim or set off.

IMG_0238

What are the common mistakes in these disputes?

  •  Improperly drafted s.21 or s.8 notice.
  • Improper service and/or proof of service for s.21 and s.8 notice. Usually needs to be delivered by hand and subsequently confirmed by an affidavit of service.
  • Non-compliance with tenancy deposit scheme rules (please note: The tenancy deposit scheme MUST be complied with before issuing a s.21 notice, else the court may strike out the claim).

The problem of costs in possession proceedings.

  • Legal advice is a necessity due to the technical and procedural matters involved in possession proceedings. Many clients will incorrectly issue notices and documents themselves, which are latterly struck out by the courts.
  • Recoverable legal costs fixed by court at a maximum of £292.50[2], but clients will incur hundreds of pounds more in legal fees in attempting to regain possession.

The secret to claiming estate agents administrative costs in possession claims

  • In Patel –v- Lang et al (2010, unreported) at Brentford County Court before District Judge Plaskow, we represented a successful claimant in pursuing the administrative costs in the sum of £564 on behalf of her estate agents together with rental arrears, legal costs and a possession order.

 IMG_7881How is this done?

  • Have a provision within the assured shorthold tenancy agreement making the tenant liable for charges in relation to the administrative costs in pursuing for late payments of rent.
  • Make the administrative fee sound reasonable i.e no more than £50 per letter.
  • If the landlord may be liable for these costs, the court will want to prevent harm and further costs being levied against such landlords due to the fault of the tenants.
  • DO NOT refer to it as a penalty or late payment clause. i.e ‘if payment of rent is late by more than 5 days, a sum of £250 will be levied against the tenant’

Ultimately many factors will be taken into account including but not limited to reasonableness, notice, whether the landlord themselves would be liable for the administrative costs should the tenants fail to pay. On the day the judge may well decide not to award administrative costs at all, therefore it is no guarantee you will recover administrative costs even if you follow the advice above.

However, properly formulated and represented you will increase the likelihood of such costs being recoverable.


[1] Please note you can still recover outstanding rent arrears through a separate claim.

[2] See Civil Procedure Rules 45(2)(d), 45.2(1)(b) & (2), 45.4A(1)(b)

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GARNER & HANCOCK LLP – PROPERTY SERVICE

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