first court hearing -any advice

[pugsy]

Hi guys. I've had a very disappointing tenant. AST created 30 Sept '06 - 30 March '07.

Basically after the first month I haven't received any rent on time and some small amounts drip fed. Served Section 8 on November 21st, tenant came up with small payment, although still way behind. Applied for court date on 12th Jan via PCOL and served Section 21 b on January 27th. Court date is 27th Feb. The basis for the court proceedings is the Section 8, grounds 10,11. I have not updated the court that I have also served Section 21b - do I need to bring this up at the hearing? What if my tenant pays that same day -then the Section 8 is invalid. Can I rely on my Section 21b as my backup? If so, at what point do I need to mention it?

What is an accelerated possession order versus a suspended possession order? In other words what am I asking the court for?

If the tenant does not turn up, will a possession order be granted for before the end of the AST, or only on the last day ie. 29th March. If the defendant does not file a defence but brings it on the day of the hearing is it still admissible?

As you can tell it'll be my first time in a court, any ideas on what not to say, or what to say to help my cause. Does the judge want to know about my personal circumstances that make it unacceptable for this situation to continue, or do I just keep it businesslike, after all I have done nothing wrong.

Thanks guys, if anyones got any advic for me before the big day, it'd really help.

[Trenners]

Hi Pugsy,

There are lots of "legal eagles" on this forum but here are my thoughts.

Grounds 10 & Grounds 11 (behind with the rent and persistently late with the rent) are not mandatory grounds for repossession meaning even if you prove that these grounds were valid there is no guarantee that the judge will award in your favour.

The smart thing to do - as you did - was to serve a Section 21 notice in January 2007 asking for possession AFTER 30th March 2007. Given that the court hearing is February 27th - if you don't get possession on that date - then you only need to wait 31 more days before you can start the Accelerated Possession Procedure under the Section 21 notice.

The only thing I'm not sure is "Can a Section 8 and Section 21 notice be served at the same time". Legal Eagles - can you advise ?

Good Luck,

Mark

[GPEL]

Defn a good idea to serve both so long as correctly served. If the judge decides not to award possession on discretionary grounds and there are no mandatory grounds, the S21 is your fall back for a later date. If using the S21 later you'll need to issue a small claim for rent arrears separately.

If you are in court with a solicitor, just sit there and keep quiet unless spoken to. The judge and solicitor may even mis-quote something but don't attempt to correct unless proceedings are going against you and it's a valid point.

If you are in court without a solicitor, make sure you do your homework and take your direction from the judge. Be sure of your facts and provide everything you are supposed to (original agreement, proof of posting, schedule of rent payments, schedule of arrears, costs etc).

Having recently gone thru this, don't be daunted and employ a solicitor if you think there might be complications. Don't try and second guess your errant tenant. If you have served the correct notices, it's out of your hands. Judges can have their querks and foibles but mandatory grounds make their response statutory; discretionary grounds are a different matter. Possession may be granted before the end of the AST and the defendants may decide to turn up on the day if they so wish. You are not asking for a suspended possession order, but immediate granting of it, enforced if not vacated in 14 days. However, the judge may award suspended possession dependant on the circumstances of the case.

[pugsy]

Hi Pugsy,

There are lots of "legal eagles" on this forum but here are my thoughts.

Grounds 10 & Grounds 11 (behind with the rent and persistently late with the rent) are not mandatory grounds for repossession meaning even if you prove that these grounds were valid there is no guarantee that the judge will award in your favour.

The smart thing to do - as you did - was to serve a Section 21 notice in January 2007 asking for possession AFTER 30th March 2007. Given that the court hearing is February 27th - if you don't get possession on that date - then you only need to wait 31 more days before you can start the Accelerated Possession Procedure under the Section 21 notice.

The only thing I'm not sure is "Can a Section 8 and Section 21 notice be served at the same time". Legal Eagles - can you advise ?

Good Luck,

Mark

THANKS GUYS FOR THE REPLIES, YOU'VE BEEN REALLY HELPFUL.

I'M WORRIED THOUGH - THE TENANCY AGREEMENT IS FOR THE PERIOD 30TH SEPT - 30 MARCH. WHEN I CONSULTED THE NLA ABOUT THE DATING OF THE SECTION 21 (1) B, THEY ADVISED ME TO PUT:

" ... AFTER 29TH MARCH or AFTER THE LAST DAY OF THE PERIOD OF YOUR TENANCY WHICH EXPIRES NEXT AFTER THE END OF TWO MONTHS FROM THE DATE OF SERVICE OF THIS NOTICE ON YOU".

"DATE NOTICE SERVED 29TH JANUARY '07"

I AM CONCERNED THAT I HAVE PUT THE WRONG DATE ON THE NOTICE RENDERING IT INVALID.

PUGSY

[Trenners]

Hi Pugsy,

I would have thought that the correct wording should have been AFTER 30th March - but it may not mean that the existing notice is invalid as the other words ie: "AFTER THE LAST DAY OF THE PERIOD OF YOUR TENANCY WHICH EXPIRES NEXT AFTER THE END OF TWO MONTHS FROM THE DATE OF SERVICE OF THIS NOTICE ON YOU" might cover you.

GPEL is our resident expert on these matters ..... comments GPEL ?

Mark

[GPEL]

I agree with Trenners, the notice cannot expire before the end of the fixed period. Did the NLA know that the expiry date they gave was before the end of the fixed period? Nevertheless, I think, but not 100% sure, that the remainder of the wording may negate an incorrect date. However, recent S21s have been invalidated because of wrong dates for reasons such as the rent due date was different from the start date of the tenancy and reasons such as catch-all wording in Notices, such as in this instance, was viewed invalid for reasons that came to light during the hearing.

[pugsy]

Thanks again chaps, I have just checked the original tenancy doc. it actually says; term: 6 months, commencing on the 30th September 2006. So I think that's probably why my Section 21 is dated in the way it is, because 6 months from the 30th would be th 29th March. Up to the 30th March would be 6 month + 1 day, wouldn't it?

Is the defendant's defence admissible if it is only presented on the day, does it need to be filed previously within a specific time frame. I don't think there will be a defence, unless it is a made up one, as all my properties are pristine new builds and everything is documented in writing, but obviously I want to get it right on the day.

Both your comments indicate that the Section 21 would be for a later date to go down the accelerated route, so should I not present the Section 21 to the judge at all, or present it to him in the hope that he may rule on it... I guess if it is for a months time, more fees will be involved, not fair!

I am hoping that it will be taken into account that by tomorrow the arrears will be 60 days, even though my section 8 was not served on this basis.

I must say, this is a real learning curve, I just hope I come out with a smile on my face. Thanks all.

[pugsy]

well, my court day has come and gone. rather unfortunately our tenant appeared and pleaded poverty, anyway the sect. 21 did not come into play at all. The judge awarded a suspended possession order for 28days, based on arrears being paid and our fixed costs. After which we can instruct bailiffs to remove him. My question is, if he pays and then stays, what to do then. I suppose it could have been worse, but it just seems to go on and on...

pugsy