janeaclark Posted February 22, 2011 Report Share Posted February 22, 2011 Hi there, Would really appreciate it if someone could offer some expert advice. Have had HB tenants in my property since 29th April 2009. Had problems with them paying from the start and so went down the direct payment from HB route which had been going very well until out of the blue no payments were received in December 2010 and none since. I contacted HB who said that no money was due to me and I needed to contact the tenant. Finally got hold of the tenant and she explained that her benefits had been stopped and that she was making an appeal. To cut a long story short and after numerous conversations with her, she said her benefits had been agreed and the money would be with me shortly. Needless to say this hasn't happened and she now ignores my calls. I posted a letter through the door on the 5th of Feb 2011 giving her one month's notice. They are on a periodic tenancy now! She has been to citizen's advice who have told her I cannot evict her because she is owed the money by the benefits office and that I will need to take her to court. I have since done some research which talks about Section 8 and Section 21 notices. I'm really not sure which one would be best to use? To add insult to injury, the rental agent who found the tenant is no longer in business and I don't know where he put the deposit or if he ever really took one at all! I believe the deposit needs to be in a secure deposit scheme to issue a Section 21 notice. What can I do??? Link to comment Share on other sites More sharing options...
Trenners Posted February 22, 2011 Report Share Posted February 22, 2011 Hi Janey, What a mess! First thing is to find out where this deposit is. Has it been protected or not? If so, which scheme? You will need to do some ringing around to the three scheme administrators to see whether they have the deposit money. It will be secured in your name against your property. The correct notice is a Section 21 - this is served giving the tenants TWO months notice from the next rent day. The rent day is deemed to be the day of the month that the tenants created the tenancy. So, if the tenants created a tenancy with you on 29th April 2009 then the rent day is 29th day of the month. So - you need to serve a Section 21 before 29th February !! (ie: before 28th February in February) demanding possession AFTER 28th April 2011. In other words - you cannot get possession back until 00:01 on 29th April 2011 at the earliest. You will not need to prove that you have protected the deposit unless your tenant decides not to vacate on 29th April 2011 and you are forced to take them to court under the accelerated possession procedure (much more information on this via other threads on this forum). If you tenant stays put (after 29/04) and you cannot find the deposit - then you are going to have to pay the deposit money into a Tenancy Deposit Protection scheme yourself. No need to do that now .... only if your tenant does not vacate. Section 8 is not an option, in my opinion, as it is very messy, very long, quite expensive .... and requires you to attend court. Hope that helps .... Mark Link to comment Share on other sites More sharing options...
janeaclark Posted February 22, 2011 Author Report Share Posted February 22, 2011 Thanks Mark! That's really really helpful. I picked up a Section 21 notice from W H Smith so I'll get that sent recorded delivery ASAP to arrive before the 28th of Feb. Fingers crossed they'll move out before the 28th of April. Best wishes. Link to comment Share on other sites More sharing options...
SPEEDTWIN Posted February 22, 2011 Report Share Posted February 22, 2011 I have gone down the section 8 route a few times over the years and find the only real differance is you have to go to the hearing (about 10 mins long) but it carries a small risk of if the tenants pays off the arears to under 2 months worth there is no guarantee of been given possession. But saying that i have NEVER had a tenant try that. As long as the tenant owes 2 months of rent (which is one month and one day behind with the rent) at the time of the hearing the judge has to give a possession order. It also has the advantage of getting a CCJ against the tenant as well as the possession order. The cost is £150 and you can apply for a court hearing 14 days after serving the section 8 with ground 8,10 & 11. So if you served one tomorrow you could have a possession order in about 10 weeks. But with a s21 that could be about 8 weeks after the 29th April. You can serve both a s21 and a s8 (not together) on a tenant and choose later which one you wish to use. Link to comment Share on other sites More sharing options...
Trenners Posted February 22, 2011 Report Share Posted February 22, 2011 I have gone down the section 8 route a few times over the years and find the only real differance is you have to go to the hearing (about 10 mins long) but it carries a small risk of if the tenants pays off the arears to under 2 months worth there is no guarantee of been given possession. But saying that i have NEVER had a tenant try that. As long as the tenant owes 2 months of rent (which is one month and one day behind with the rent) at the time of the hearing the judge has to give a possession order. It also has the advantage of getting a CCJ against the tenant as well as the possession order. The cost is £150 and you can apply for a court hearing 14 days after serving the section 8 with ground 8,10 & 11. So if you served one tomorrow you could have a possession order in about 10 weeks. But with a s21 that could be about 8 weeks after the 29th April. You can serve both a s21 and a s8 (not together) on a tenant and choose later which one you wish to use. Hi Speedtwin, The problem with Section 8 is that the tenant can mount a defence to any of the grounds that the landlord states at the hearing and they can also choose to reduce the rent arrears (to less than 8 weeks) prior to the hearing date. If they do reduce the rent arrears (to less than 8 weeks) then Ground 8 (the only mandatory ground for rent arrears) is not valid anymore and Grounds 10 and 11 are only discretionary grounds (meaning the judge may not order possession in favour of the landlord). Section 21 is much much better because there is no defence to the notice (as long as it is served correctly) and there is no Court hearing. Also ... using accelerated possession after 29th April 2011 .... the landlord is _guaranteed_ to get a possession order within 28 days without any court hearing. You could serve both notices (as suggested by Speedtwin) ... but in my experience ... Section 21 is much more straightforward and guarantees possession without a court hearing. PS: When serving the Section 21 .... make sure you get proof of posting from the post office showing the date the notice was served ... and make sure you allow at least 2 days for the notice to arrive .... ie: if you were to post the Section 21 tomorrow (23/2) ... you can be sure that the notice will arrive by 28th February 2011 ... and will therefore be valid. If you don't post the notice until 25/2 - it might be argued by the tenant that it did not arrive until 1st March 2011 ... in which case it would be invalid as it should have been set to ask for 2 months notice from 29th March 2011 thereby demanding possession after 28th May 2011. Good luck Mark Link to comment Share on other sites More sharing options...
SPEEDTWIN Posted February 22, 2011 Report Share Posted February 22, 2011 I do agree with you Mark the tenant can bring the arrears below 2 months but if they did you have got your rent and still a got s21 to fall back on. I have never had a tenant do that though (bound to happen sometime though) But if it did and you had to rely on grounds 10 & 11 you still may get a possession order. I have used just those 2 grounds only once and because the tenant didnt turn up i still got a possession order so it can be done. If you can afford to wait s21 is best but if you can go to court quicker but lose it has cost you £150 but can still use the s21. Link to comment Share on other sites More sharing options...
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