DHSS nightmare continued

[pin]

DHSS nightmare still getting worse

Hello all

Don’t know if you recall I was asking for some advice backin Feb regarding a DHSS tenant. Just torecap he has not paid any of his portion of the rent, the council are paying onand off when they can’t get hold of him.

Now he has done a runner leaving his relatives in the house,can’t get in, won’t answer the door, and won’t answer any form of communication.Called the council and they have said he has moved out therefore we are notpaying, furthermore we are not going to say where he is rehoused, data protection. Now we have sitting tenants, believed tobe his son, no contract and no rent. We previously served the section 21 by areputable company, but even that was ignored by the tenant, but the council didstart paying for a while.

Now we have a situation that is unsustainable and don’t knowwhere to go

[LLAW96]

If you do not feel confident then see a solicitor, however this is how it should run. Firstly you do not have to occupy a property to be treated as the tenant, the only requirement is that it remains your principal place of abode, secondly you cannot have two assured tenancies. In this case your tenant has "done a runner" therefore under normal circumstances you would be able re enter, the fact that it is occupied complicates matters. In this case you should serve a 28 notice to quit at the property addressed to your tenant. When the notice expires you issue a claim for possession dealing with the occupants as tresspassers, the could should grant you an order for possession forthwith. The return date on such claims is usually 5 to 10 days so the procedure is quick and effective. There is a quicker method open to you if they have taken up occupation recently, in such circumstances an interim possession order may be your remedy but you really should seek legal advice if you are going to go down this route.

Finally dont take this lying down, employ a skip trace agent to find the runner, costs will be between 35 to 50 pounds some are prepared to act on a no find no fee basis. Make sure you serve them with a copy of your notice and let them know you will be pursing them for costs. You might find you get your property back without resorting to the courts.

[Grampa]

I am going off at a bit of a tangent here and I tend to agree that you can not "have two assured tenancies" but if it was a joint tenancy only one of the tenants has to live there as their main residence so couldn't the other one have another tenancy else where as well?

Or maybe that a daft question.

[Carryon Regardless]

I like the sound of the S28 and a 5 - 10 day turn around, but I assume this would depend on the court in question ?

But- The status of the T is unknown, he has not given any indication of his intention to quit or indeed surrendered the property. He is still in possession.

It is his choice where he may be residing or otherwise now and to later return to his property, unless repossession from him is dealt with formally.

To proceed with the S21 repossession may be more reliable, the fact that his guests may or may not be in the property only has relevance when the Bailiff evicts any and all occupants and returns the property to the owner.

I await correction of my thoughts.

[LLAW96]

Where you have a joint tenancy and one of the joint tenants remain in ocupation then the assured tenancy remains effective until either one of the tenants serve notice or the tenancy is brought to an end by an order of the court (s.5(2) Housing Act 1988). The status of an assured tenancy is transitory in nature, that is to say a tenant can fall in and out of security. So a departing tenant could take up occupation of a new property under an assured tenancy (his principal place of abode) and then a later date move back to his original property (joint tenancy) and retain his status as a joint tenant of that property.

From the facts given this is not a joint tenancy and the tenant has gone. The quickest way to remove your guests would be to take the steps indicated above. What seems to have happened is that your tenant has made a claim for housing benefit from another address, this will automatically end any claim relating to his previous tenancy. The notice to quit will bring the matter to a head if he is not occupying the property, the occupiers can then de dealt with as trespassers. Under normal court rules the minimum return date on issuing a claim for possession is 28 days (but usually ends up being 6-8 weeks), this rule is abridged to 5 days in tresspass cases, with an order for possession forwith following if you have got your paperwork in order. The usual N5 claim form applies but the particulars of claim are different (form n120). My experience is that you will have a hearing within 10 days. If you are unsure of the situation or do not want to use the services of a skip trace agent then the option of issuing proceedings based on a s.8 or 21 notice is open to you the process will take 3 to 5 months depending on which court you issue out of.

[pin]

thanks for your input everyone

i have spoken to a solicitors for some advice and they have come back with that i don't know is quite correct??

they have said that the AST is in the name of the tenant that has gone.(according to the council, but still has the keys)

therefore to establish who is in the property we have to issue proceedings under " unknown occupying persons"

this has to be done under notice 21,( as the first one issued in March is expired ) and then apply through a process server and on to the courts?? and this means £££££££ for the system

NEVER AGAIN- DHSS

sorry for my stupidity but if the person on the AST has gone. cant we just take possession of the property. change the locks as no doubt we will start to incur-re council tax ect

again thanks for input

[LLAW96]

Sounds like your solicitors are trying to tell you what I set out above re trespass, ask them to confirm whether this is the case. Your solicitors do not sound like they specialise in landlord and tenant law, but as I have said before you pays your money and takes your pick.

[Carryon Regardless]

Anyone in a property can't be evicted by other than the court/ bailiff.

Re taking possession yourself may well work for you but beware of the risks.

A legal T can't be excluded, that's illegal eviction, heavy .

Anyone inside has legal right to be there unless decided otherwise by a court, but if they leave they have no right to return IF excluded.

That is change the locks while they are out and hope they call the Police (to create a record of the situation) when they return. Be careful as really you shouldn't break in to your own property, so of course you don't.

If you aren't around (inside the property) when they return you can expect them to break in, if this can be proven the Police may act. but also they may claim to have consent by the legal possessor.

If you are inside the Police have a problem unless the legal possessor can be contacted, then it is likely you would be persuaded to give the 'guests' access. In any event this is easier fore the Police anyway, they would prefer to go get a cuppa and leave the issue as our problem

The 'guests' have no claim, but the ex T who I still view as being the responsible possessor can claim, even for you preventing his guests access.

Following the SAS motto may be brave or stupid, tis a judgement call, but remember you just think it's your property.

I'm sure others will have views on my comments, I look forward.

Edit:

Where you believe the property to be abandoned and intend to retake possession it is important to gather as much evidence as possible to show this thinking to be reasonable.

If you are able to convince the Police with the evidence, as mentioned earlier, then you have a strong position.

Chancing the outcome of preventing the guests from returning may well be worth the risks, chancing illegal eviction isn't in my mind.

A further problem is that the Police are not specialists in this area and often mis-interpret the legislation, I've been there. Having the relevant legislation in print for them to read may well assist their understanding and avoid your inappropriate arrest and subsequent return of property to guests.

[Carryon Regardless]

If I understand the gist of what Law says I agree the solicitors aren't up to much.

A S21 'expires' in that it then comes into force, there is no shelf life.

Consider, if we aren't able to act on a notice before expiry, as is the case, and your solicitor say it has expired and is useless then it can never have purpose.

[Grampa]

My thoughts are this and they maybe right or wrong or not legal.

1 Apply for a possession hearing on the basis of the s21 already served. The occupiers will not take any notice but I believe the court bailiff will treat the occupiers as friends (for want of a better word) of the legal tenant and give you vacant possession with the help of the police if necessary. This is my preferred route to go down

2 Get some big friends to enter through a open window when the people are out and claim squatters rights. Plenty of info out there on the web on how to squat "legally"

3 Go down the trespass route as suggested by LAW.

On point 2 as much as I like the idea it may or may not get you in a heap of trouble.

[LLAW96]

If you want an out of the box solution how about s.16 Distress for rent act 1737, I believe it is still in force.