Tenant has requested permission to have kittens in the property, but refuses to agree to our terms

[Richlist]

There are so many factors that affect the time to find a new tenant that its impossible to call....the market, type of property, condition & spec, location, your tenant selection criteria etc etc etc.

If it was a week before Christmas then I'd say you may have to wait until January. The only real downside is the work it gives you at a busy time of the year.

[Mortitia]

I am sure he will be delighted to be looking for new accommodation with 2 kittens just before Christmas .

Tracey be prepared for having to get the court order to get him out. Agree with RL don't try to conduct viewings with this joker in place and make it quite clear to your agent that pets are not possible at this property.

[chickpea]

Thanks Richlist and Morticia.

We were fierce about the no pets issue when showing the property, but when the tenant requested permission, we felt it better to try to draw up conditions than say a flat no because we thought it was preferable to finding out later that the tenant had gone ahead anyway and we had no protection against damage in place...

I'm seriously beginning to wonder whether it's the type of property - 2 bed semi on a small estate - that leads to the problems we've had with tenants. It obviously attracts pre-first time buyers who don't seem to understand what keeping a house involves.

I'm not sure there's any more we can do to try to make tenancies run smoother. Any ideas?

[Richlist]

I think with houses you will always run the risk of a tenant getting a dog or cat. Houses predominantly attract families who are more likely to want a pet.

Leasehold flats often don't allow cats or dogs without the express permission of the freeholder.....there is usually a fee for granting that permission.

[chickpea]

Quick update and question -

Tenant was issued the s.21 to seek possession of the property on 3rd December.

No response from tenant.

Today, he has been into the agent's office, saying he's found a new property and can leave asap.

His rent is paid until November 3rd, which is the end of the fixed term AST.

Is it in our best interests to get shot of him now, or request he gives a month's notice - allowing us to market the property during that month and potentially avoiding any void period?

I'm guessing let him go now, but would be interested to hear your views and any warnings of pitfalls we may fall into either way.

[chickpea]

Actually, I've just realised that the tenant doesn't need to give notice to leave at the end of the fixed term, so actually, it's all good!

[Richlist]

Yes that's correct.

I doubt you will be given access to the property until they have gone on Nov 3rd so no point marketing it as you don't know what repairs/ maintenance is likely to be needed.

As my tenancies approach the end of their fixed term, say 6 to 8 weeks before the end, I contact the tenants to ask what they want to do (assuming I'm happy for them to stay). I usually phone, text or email them and explain their 3 options......leave, new tenancy agreement or periodic tenancy and the cost of each.

[chickpea]

Thanks for the advice, Richlist.

Just to clarify - do you only ever market once the property is empty?

Typically, the tenant has called the agent back and said that he's changed his mind about the property he was going to move into and is still looking - for that, read he jumped the gun; viewed a property, liked it and assumed he'd get it.

So, we've taken this opportunity to remind him of his responsibilities at check out, regarding cleaning.

[Richlist]

Just to clarify - do you only ever market once the property is empty?

I do what I call 'low key' marketing once I know the date the tenant(s) are leaving.

1. I ask the outgoing tenant if they know anyone suitable who might be interested.....I usually offer a small finders fee as an incentive. Surprisingly, because I tend to let to professionals from larger organisations, they regularly nominate a co worker to take the property. The co worker(s) are usually friends of the outgoing tenant and have already visited/seen the property so know what they are getting.

2. If the property has been kept in good order and the existing tenants are a) VERY TIDY and agreeable to viewings then I will advertise in all my usual places. However I find organising viewings with an existing tenant in situ can be a pain in the arse and much easier after they have gone.

I find many tenants are EXTEMELY untidy and make little or no effort although they know people will be viewing. I've had unmade beds, piles of clothes and underwear on bedroom floors, washing up not done, kitchens and bathrooms not tidied. So, whats the real point of a viewing.......the place looks like a bomb has hit it so the landlord is already at a disadvantage.

Good luck.

[chickpea]

Thanks.

As it happens,we've always marketed it empty previously - just because the 3 previous sets if tenant's have left in complicated circumstances. I take your point about tenants not always being clean and tidy, plus it's easier to get a feel for a place if you're not having to look past a tenant's possibly naff furniture/black bedsheets/giant plasma screen tv/car magazines etc.

[Mortitia]

He sounds like a right plonker - wait til he's out then show it.

[Melboy]

Wait until it's empty Tracey.

My last tenant in my flat ( September) was the best I have ever had. It was like walking into Harvey's furniture showroom and she gave me 3 months notice to quit and new tenant viewing at anytime on 24hrs. notice. God, I miss her!

[chickpea]

Thanks guys.

We have had no further contact from the tenant, so are assuming that he hasn't found a new property yet.

That being so, can I just clarify a few things please?

His AST is due to end 02/11/14 (Sunday).

Presumably, the fact that we have issued an s.21 to come into play on 03/12/14 doesn't change his responsibility to give a month's notice, once the AST rolls onto an SPT? Does his notice have to coincide with his rent due date? Eg if he doesn't give notice on the 3rd, will the notice period start from the 3rd of the following month?

Likewise, we need to re-protect his deposit and re-use the PI.

He is due an inspection - should this still go ahead, as if the tenancy is on-going? And if so, what should the agent do/say when they see that there are 2 cats in the property? (No-one has mentioned this subject to the tenant yet).

[chickpea]

Tearing my hair out now!

Spoken to the agent today. He is arguing that, since we have issued a s.21( with a "notice to quit" attached (not even sure what that means), the tenant has no duty to give notice.

Surely that is just not right?

My understanding is that the s.21 only allows us to seek a court order for possession - until that order is made, the tenancy runs on and with it, all responsibilities on both sides.

The agent is adamant and says we have to sit back and simply see what happens with the tenant - which rings alarm bells in my head!!

[Mortitia]

The agent is correct in my opinion.

As soon as the fixed term tenancy ends a Statutory Periodic Contract arises. Since you have Section 21 in place as soon as the notice period is up you need to fill out Form N5b from HMRC to get a court order for possession.

Did you think tenant was going to move out at end of fixed term? Can't imagine why. He has 2 cats and will find it hard to get accommodation.

Keep taking the rent and when notice up apply for possession. As it is near to Christmas he will probably get a stay of 42 days so prepare yourself.

[chickpea]

The agent is correct in my opinion.

As soon as the fixed term tenancy ends a Statutory Periodic Contract arises. Since you have Section 21 in place as soon as the notice period is up you need to fill out Form N5b from HMRC to get a court order for possession.

Did you think tenant was going to move out at end of fixed term? Can't imagine why. He has 2 cats and will find it hard to get accommodation.

Keep taking the rent and when notice up apply for possession. As it is near to Christmas he will probably get a stay of 42 days so prepare yourself.

I've scoured the net and consensus appears to be that the SPT runs until it is ended - either by a court order or by the tenant. Since s.21 is not a notice to quit, the tenancy continues in accordance with the terms laid out in the AST and the tenant must give notice accordingly.

We have no indication of when the tenant will leave - a few weeks ago, he was saying he was able to leave immediately. We've had absolutely no communication since then.

Presumably, we need to re-use PI?

Also, treating the tenancy as on-going, he is due an inspection next week - but the LA is saying that he can simply refuse permission to access the property.

[Mortitia]

Yes do re- issue PI in case you get caught out.

Write to tenant and ask when he is departing and remind him of previous verbals. Until you evict or he leaves the tenancy goes on and he has to pay the rent. Tenants often go quiet at this time hoping you will go away.

He can refuse inspection quite legally under - 'quiet enjoyment of the property'. As soon as your S21 is up apply for the court order.

[chickpea]

Our agent sent the tenant an email, requesting permission to inspect this week.

Tenant replied that he is leaving on 3rd December "due to the landlord serving me notice", and as such we can do a check out inspection then and not before.

Here's my confusion.

His next rent due date is the 3rd. Obviously, if he leaves on the 3rd - happy days. However, I have read it suggested elsewhere that we should get him to surrender the tenancy in writing, because he will have left the tenancy of his own free will (ie without a court order). Otherwise, he *could* claim unfair eviction if he leaves and we re-let.

What happens, regarding rent, if he doesn't leave on the 3rd but sometime between then and the next rent date (and before a court order)? We don't have any indication that he's found somewhere to live - no request for references etc.

I'm guessing we should just be glad he goes without the need for a court order, but how far do we let this go?

[Mortitia]

If his rent due date is the 3rd he should be exiting on the 2nd as after midnight he has an SPT as you rightly say and 1 months rent is due at 00.01hrs on the 3rd.

What were the dates on the S21?

If he goes on the 3rd then I would not charge him - just be happy he has gone but you do need to get a 'Deed of Surrender' signed to end the agreement as he could come back and argue you have illegally evicted him.

Write and tell him that if he overstays another months' rent is due. Enclose the Deed of Surrender (2 copies) for him to sign and return to you/agent then you both sign and give him 1 copy.

[chickpea]

I haven't seen the s.21 but the LA informs us the notice expiry date is 3rd December.

The tenant is behaving as though it is a notice to quit, and I suspect the LA hasn't told him otherwise because it's better he goes of his own accord than us having to get a court order.

However, I foresee that the tenant will try to pay rent only for the time he stay in the property past the 2nd (ie part month) because he sees it as us asking him to leave and not vice versa.

What date should a deed of surrender include - 3rd December, or the actual date he leaves?

Again, my concern is that if he gets an idea that he doesn't have to leave, he won't.

[Mortitia]

Stop looking for problems that aren't there yet. To apply for a court order is £280 (it is recoverable) so hope he goes peacefully and on the 3rd Dec.

Tell agent you want a Deed of Surrender - if he can do S21 he can do that. It must reflect the day tenant leaves finally.

[Grampa]

If the tenant returns the keys of the property and they are accepted by the landlord as part of an agreement that the tenant shall give up possession and that the rent shall cease, the acceptance of the key marks the moment of surrender. [Whitehead v Clifford (1814)

[chickpea]

Thanks both.

I've mailed the LA today, asking him to write to the T, making clear that rent will be due on the 3rd and requested that he reissue the PI.

[chickpea]

Email response from the LA:

"Further notices at this point are not required.

Tenant has informed us in writing that he will be leaving on the 3rd, as per the notice.

Just so you are aware, if we discuss beyond the notice period with the tenant, the 21b notice would be considered invalid in a court of law. Not many people are aware of this, and have had notices thrown out when getting to court.

Marketing at this stage would not be advisable, as we have served notice and the ground we have served it on is not mandatory."

Is this correct?

[Mortitia]

I am a bit confused by the agents comment but I agree that you/agent should NOT contact him at all during this time. He hasn't committed any crime yet - so leave it alone. PI can be issued up to 14-28 days after SPT starts so no worries there.

We need to know what was written in the Section 21 4 b ideally.

Usually a S21 says something like 'possession will be sought after (last day of tenancy) if in fixed term which this is. So if tenant does not vacate then you apply for a court order. No new S21 needs be issued as one was issued in the fixed term and you will be actioning it. I say the agent is wrong - see what the others say.

Section 21 when served correctly guarantees possession - it is mandatory. It is Section 8 possession cases that use 'grounds' and most of those are 'discretionary'. Could agent be confusing S8 with S21?