Can I serve a sec 21 or sec 8

[massifal1]

Hi All.
I have one property that I have rented out for nearly 20 years now.
The latest Tennant moved in in 2004 pre deposit scheme ,so i never put the deposit in one as did not think it applied.
I have now been advised that when rent increased this in effect became a "new contract " therefore deposit should have been put in a scheme.
They have been good tenants, however I have been notified by the council that their claim for housing benefit was "wrong " as he hadn't declared earnings.
All housing benefit has now ceased and no payments have been made for June or July
Rent was part paid by housing benefit and part by them for "top up " £350 by HB £250 by tenant direct.£600pcm
the position now is he is £820 in arrears and another £600 due on 1st Sept (paid in arrears)
I have been told I cant serve a section 21 as deposit was not secure, and as yet he is not 2 months in arrears to merit a section 8.
what are my options.
Ps if he does go over the 2 months arrears and i then serve a section 8 ,if he then does pay extra does this then cancel the section 8 ??

[Mortitia]

Section 21 guarantees you possession but the deposit needs to have been protected and PI issued within 28 days of the 'new agreement'. If you did not protect the deposit the best thing is to return it then proceed with Section 21.

Section 8 can be useful to gain possession BUT as you describe often tenants pay up just enough rent to prevent the 2 months arrears and so scupper an application to the courts for possession. Then you have to start all over again.

Another reason Section 8 often fails is that the tenant claims 'disrepair' at court - meaning their are repairs that need doing at the premises - a judge may adjourn for reports and you are left hanging waiting while the rent debt piles up. If disrepair is confirmed then you are in more of a mess so only proceed with this if you are renting out a property in excellent order.

I'd go for Section 21 in your situation and advise the council you are doing this but return the deposit and get a receipt from the tenant.

[Grampa]

If you return the deposit it is important that you have proof they received it to be able to then serve a valid s21.

In theory if you gave them a chq and it wasn't cashed/banked they haven't received it.

Does the contract state rent is paid monthly in arrears? If so and you chose to go down the s8 route using ground 8 you will have to wait 2 full months of non payment of rent not 1 month and 1 day before serving the s8.

For everybody out there as a rough rule of thumb

DONT DO WEEKLY CONTRACTS.

MAKE SURE THE CONTRACT STATES THE RENT IS PAID IN ADVANCE.

DONT HAVE THE RENT DUE DATE DIFFERANT TO THE DAY OF THE MONTH THE TENANCY STARTED.

But if you have a casual (verbal) arrangement that the tenant pays in drips and drabs or on another day to stated on the contract that is generally ok and any notice (s21/s8) is based on the dates on the AST.

[Mortitia]

DONT HAVE THE RENT DUE DATE DIFFERANT TO THE DAY OF THE MONTH THE TENANCY STARTED.

Why not Grampa? I often do this where say tenancy starts 28th of the month and the tenant gets paid last day of month.

[Grampa]

Mortitia there is no legal reason not to. It just means there is more room for error in getting dates incorrect for s21 purposes and for old duffer judges to get it wrong also, even if it is correct. I have had a number of experiences of duffer judges who should know better and shouldn't have to be told what the law is on basic stuff by a common letting agent.

Though saying that anyone who has been following the Spencer v Taylor saga thro the high court and appeals, serving a s21 has become easier and can potentially shave a month off the eviction process but I will be buggered if I will take advantage of it because it will have a 50/50 chance of being struck out by an out of date judge.

I always take the view of keeping it simple to reduce the chances of it going wrong.

If I had a situation similar to yours and the tenant got paid a few days later I would just have a verbal arrangement to pay a couple of days late so you don't end up with part month payments on a rent payment record if you had to use the s8 route and then spend 10 mins explaining it to a judge.

[james heele]

Hi All.

I have one property that I have rented out for nearly 20 years now.

The latest Tennant moved in in 2004 pre deposit scheme ,so i never put the deposit in one as did not think it applied.

I have now been advised that when rent increased this in effect became a "new contract " therefore deposit should have been put in a scheme.

They have been good tenants, however I have been notified by the council that their claim for housing benefit was "wrong " as he hadn't declared earnings.

All housing benefit has now ceased and no payments have been made for June or July

Rent was part paid by housing benefit and part by them for "top up " £350 by HB £250 by tenant direct.£600pcm

the position now is he is £820 in arrears and another £600 due on 1st Sept (paid in arrears)

I have been told I cant serve a section 21 as deposit was not secure, and as yet he is not 2 months in arrears to merit a section 8.

what are my options.

Ps if he does go over the 2 months arrears and i then serve a section 8 ,if he then does pay extra does this then cancel the section 8 ??

Regardless of pre - deposit if your tenant is still in the property after the deposit rules came then I am sure that you may need to register the deposit in order to issue a section 21 notice. If you serve the section 8 notice and the tenant makes payment and is no longer in rent arrears by 2 months then you notice will only allow possession on discretionary grounds. Give Landlord Angel a call on 0845 459 9962 they offer free advice and have been very helpful when I have had issues with my tenants.

[Mortitia]

What issues where they then james heele? Sounds like a load of advertising crap to me.