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Help - Tenant and Gas Safety

Started by Lozenge1234, October 29, 2024, 01:57:27 PM

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Lozenge1234

Please could I have some advice. I have had a bit of a nightmare with my Tenants and they have just been served an Accelerated Possession Order. They have been dragging everything out (I first gave them a Section 21 in May/June) and have made things really difficult. For example, they agreed that if I held off on Court proceedings then they would allow me to market the property and allow viewings on the property, but they would always cancel the viewing last minute and so no one could view it. So in the end I had to take the property off the market and started the Accelerated Possession Order. 

Anyway, fast forward to now and the Gas Safety is due to expire on the 10th November. I pre-empted them being difficult and between the plumbing organisation and myself, have been trying to arrange access to do the Gas Safety since the 7th October. They have finally today (after lots of stalling/saying he will come back with a date next week, etc etc), confirmed they can do 4:00pm on Friday 8th October. As I now know his tactics, I imagine he will cancel on the Friday, knowing the Gas Safety will expire that weekend.

I know I cannot force entry, but it is also an awful grey area because it is a legal requirement for Landlords. What can I do? I thought about posting a 'signed for' letter in the post, documenting what has happened so far and forewarning them that if they cancel this appointment, I would need to confirm access for the Saturday to ensure it doesn't expire? I was also going to document all the earlier dates next week that would be available to them for the gas safety to be carried out.

I have evidence of all previous attempts to arrange the gas safety in the form of emails, whats apps, calls and notes. I guess my biggest concern is that they file a defense to the Accelerated Possession order (which they just received on Saturday) that the gas safety is out of date.

Please help!

heavykarma

You are not " forcing entry"  if you give at least 24 hours formal notice that you need to go in. Tell them that you will accompany the gas man and use your keys if they are unable to be present. Gas safety is not something to be casual about, and I suspect you have allowed them to play you too many times. Time to take a stand.

I hope you have kept records and proof of all the times they have cancelled visits.

Record the visit on your phone, in case they bolt the door.

Lozenge1234

Thank you. What if he cancels 'due to illness'. This is an excuse he has used before..According to the Shelter website I cannot breach their right to 'quiet enjoyment' of their property.

They really have played me at every opportunity - I really cannot wait for them to get out!

jpkeates

What do you mean by "they have just been served an Accelerated Possession Order"? Does that mean the court has awarded possession or that you have now begun a possession claim?

Lozenge1234

I have already begun the possession claim, sorry. They received the claim papers at the weekend.

jpkeates

As long as the possession claim is based on a valid s21 notice, the lack of a GSC now shouldn't matter, it's what the situation was when the notice was served that's critical. The issue will be if the notice needs to be re-issued, so let's hope it doesn't.

Check everything, in case you need to serve a new notice before the GSC expires (assuming your tenant does what you expect).

Lozenge1234

Quote from: jpkeates on October 29, 2024, 05:13:20 PMAs long as the possession claim is based on a valid s21 notice, the lack of a GSC now shouldn't matter, it's what the situation was when the notice was served that's critical. The issue will be if the notice needs to be re-issued, so let's hope it doesn't.

Check everything, in case you need to serve a new notice before the GSC expires (assuming your tenant does what you expect).


Thank you- on the subject of paperwork.. the tenant said that when he received the claim papers that the tenancy agreement didn't have his current rent payment on it, and it would make the papers void. I explained that you do not need to amend a tenancy agreement with a rent increase, and this was the original tenancy agreement which the Court has asked for. He received a Section 13 detailing the rent increase and he has been paying the new rent for a few months.

Will this be an issue? I cannot see anywhere whereby I had to show evidence of rent increases when submitting all the documents. I expect he will put it in his defence form however, but, does it matter?

jpkeates

That issue doesn't make any difference to whether the s21 is valid or not. There's a sticky flowchart on this forum which will help.

Lozenge1234

Quote from: jpkeates on October 30, 2024, 06:22:00 AMThat issue doesn't make any difference to whether the s21 is valid or not. There's a sticky flowchart on this forum which will help.

Hi again. The Tenant is now saying that he could have a defence to the accelerated possession as a 'retaliatory eviction' - because two months before the section 21 he mentioned a slow drip on the toilet, I said I would sort but admittedly hadn't rushed to it because he had stated it wasn't major. I didn't hear any more on it and then 2 weeks later he messaged asking what a switch did in the house and that I had post to collect, nothing more was said. When I gave him notice it was obviously because I wanted to sell the house and that was always my intention, it has only been removed from the market because he wouldn't let anyone view it and cancelled viewings. Has he got a leg to stand on? He has even contacted the previous tenant trying to get information on me (there was nothing to be said though and I have kept the property in good repair).

He is obviously enraged by my letter about the Gas Safety access.

jpkeates

Retaliatory eviction requires the involvement of the local authority and a serious issue (and improvement notice).

Personally, I'd pay an eviction specialist and let them sort this out.

heavykarma

I agree with jpk. It won' t be cheap,but it will call a halt to this game- playing.Don' t engage with any more messages from him, leave it to them. 

Lozenge1234

Thank you. Unfortunately, I do not have the money to pay for this (partly the reason why I am having to sell the property in the first place). I haven't responded to any of his messages. Whole thing is very anxiety inducing! I am just going to have to sit and wait and see how it plays out. I am hoping he will realise it isn't worth it.

jpkeates

Getting the notice and possession claim is much more expensive than paying someone to remove the tenant. You need to be really really confident about the notice being valid.
Check everything twice.

David

I would not advise anyone enter the property without permission except if there is a real emergency, e.g. a neighbour says they can smell gas.

Even then the LL is not entitled to enter with the Gas Safe engineer but that would probably be tolerated if the Tenant was not home and there was a genuine emergency.

The Tenant has a right of quiet enjoyment of the property and tenancy terms cannot override that.

In my experience when Tenants are in this mode they often set up a cameras inside the property.


Quote from: heavykarma on October 29, 2024, 04:10:22 PMYou are not " forcing entry"  if you give at least 24 hours formal notice that you need to go in. Tell them that you will accompany the gas man and use your keys if they are unable to be present. Gas safety is not something to be casual about, and I suspect you have allowed them to play you too many times. Time to take a stand.

I hope you have kept records and proof of all the times they have cancelled visits.

Record the visit on your phone, in case they bolt the door.

David

I do not think they are enraged, they are merely following advice from CAB, Council, their mate down the pub, but it sounds as if they are grasping at straws.

I suggest you download the Form 6a notes and the defence form for your n5b-eng which is n11b just so you are ready to disprove any allegations.

To make it easier you can provide a4 summary just confirming none of the numbered possible defences apply with a reference to the page or section number in the bundle. If the Tenancy agreement is long put it at the back of the bundle.

The eviction specialists often include a ridiculous amount of paperwork when they serve a S21, for example every How to Rent document version since time began.

The Tenant is likely to ask for a hearing, you can overcome that objection with by saying there is no need for a hearing as their is no valid defence to granting possession.

Be warned that if the Tenant would be deemed vulnerable by the Council because they have a disability, diagnosed mental health condition (e.g. schizophrenia, Autism) then the Council will likely tell them to not leave until Bailiffs evict them.  This can extend the time considerably, some Councils do this routinely when they owe a housing duty, but at the same time they put them through quite an arduous process to make them try to find something in the private rental sector.



Quote from: Lozenge1234 on November 01, 2024, 08:45:16 AM
Quote from: jpkeates on October 30, 2024, 06:22:00 AMThat issue doesn't make any difference to whether the s21 is valid or not. There's a sticky flowchart on this forum which will help.

Hi again. The Tenant is now saying that he could have a defence to the accelerated possession as a 'retaliatory eviction' - because two months before the section 21 he mentioned a slow drip on the toilet, I said I would sort but admittedly hadn't rushed to it because he had stated it wasn't major. I didn't hear any more on it and then 2 weeks later he messaged asking what a switch did in the house and that I had post to collect, nothing more was said. When I gave him notice it was obviously because I wanted to sell the house and that was always my intention, it has only been removed from the market because he wouldn't let anyone view it and cancelled viewings. Has he got a leg to stand on? He has even contacted the previous tenant trying to get information on me (there was nothing to be said though and I have kept the property in good repair).

He is obviously enraged by my letter about the Gas Safety access.

Lozenge1234

I know that I am not allowed to enter and if he says no then I cannot do anything but keep a record. I also know he has a Ring doorbell!

jpkeates

You can't oppose a hearing by saying there's no defence possible. The tenant is entitled to a hearing to offer a defence (the defences are all procedural but they do exist).

David

Just keep a record of any unreasonable refusals.


Quote from: Lozenge1234 on November 01, 2024, 01:26:14 PMI know that I am not allowed to enter and if he says no then I cannot do anything but keep a record. I also know he has a Ring doorbell!

David

I did not say oppose, I said the LL can "overcome" the objection...see below

 

Quote from: jpkeates on November 01, 2024, 02:25:32 PMYou can't oppose a hearing by saying there's no defence possible. The tenant is entitled to a hearing to offer a defence (the defences are all procedural but they do exist).


Quote from: David on November 01, 2024, 01:25:30 PMThe Tenant is likely to ask for a hearing, you can overcome that objection with by saying there is no need for a hearing as their is no valid defence to granting possession.

jpkeates

The tenant can't ask for a hearing. They can offer a defence, which will trigger a hearing, but they can't just ask for one (as far as I understand the process).
They can make up a defence, or submit one that won't work, but any defence, pretty much, will cause a hearing, and the landlord can object, pointing out perhaps that there's no defence or the one offered isn't valid, but that will simply mean there needs to be a hearing to resolve that.

heavykarma

When did the law change regarding a landlord' s right to enter by prior notice for routine inspections and repairs,  or without prior notice in emergencies? 

The matter of " quiet enjoyment"  and the right to enter when necessary have been the case for the 25 years or so that I have been a landlord. I can' t  see that one precludes the other. I would like to think that common sense would prevail. A booked visit for an essential and legally required gas check, probably just confined within the kitchen, making little noise and taking an hour at most could hardly be called a malicious imposition aimed at ruining their domestic life!

Surely you would not advise a landlord to risk a possible tragedy if the boiler is faulty?     

David

Isn't that what I said, they will file fake reasons like "oh it is a retaliation"

"Oh he never served the PI"

But if it is obviously fake the Judge can just go ahead and award the possession, if they have good evidence and are persuaded.

The fact is with any Judge it is a roll of the dice, some are Landlords and some will do everything possible to avoid eviction, especially around Christmas.

I find some Councils are telling the Tenant not to leave but also telling them not to file a defence which almost guarantees the order.  I have a big issue with Councils that avoid their housing duty but tell a vulnerable Tenant to delay delay delay and run up thousands in legal costs for eviction by Bailiffs.

There does not have to be a hearing if you point out in an easy way that summarises that there is no defence.  In the simplest term of the Retaliation, the Tenant is asked on the N11B



0. Do you agree that what is said in section 15 of the claim form (about any complaint to the Local Authority about the condition of the property) is correct?
Yes
No – what do you disagree with and why?




The summary would simply say

Retaliatory eviction - The allegations of Defendant are rejected, all repairs have been responded to promptly, the Council has never been involved in any repairs issue and the claimant has failed to provide evidence of their involvement.

The Tenant can write war and peace of repairs but if they do not provide evidence of reporting it to the Council then it will be ignored.

I think it is all about how you structure things.

So consider the Claimant filed their claim, the Tenant filed their defence and the Claimant has the chance to respond to the Defence.

What I recommend is a summary that makes the decision a "no brainer", these matters are often prepared in the Court by inexperienced staff who try to get rid of as many as possible either because

they obviously have a verifiable defence
they don't have a defence, or
staff member is not sure,

These then go to more senior staff who review and prune it down further, then prepare all for the Judge with notes. What matters here is the priority, if they can quickly churn through the ones where there is no evidence they get more done.

There has been a lot of centralisation and computerisation leading to many staff being let go, so there are lots of mistakes because the fountain of knowledge in Court staff are gone.  This is where things fall down, bundles are lost or rules about maximum number of pages or email size kick in and the Judge can't make decision.

The Judges themselves want to make quick but just decisions, so if you think the way they think you get the outcome you seek whether you are a claimant or defendant.

The simple fact is that they seek to process an Accelerated Procedure without a hearing unless there is good reason to have a hearing. 

The Defence form allows them to give all the valid reasons to have a hearing, but if as the OP says the Tenant is trying it on and fills in each section as if it is valid defence, but there isn't, then it makes sense to make things easier for the Judge to cut through the BS.

At the same time the Defendant may ask for more time for the possession date on the defence form and the Claimant is asked

"if the Defendant seeks postponement of possession for up to 6 weeks on the grounds of exceptional hardship, is the Claimant content that the request be considered without a hearing?"

So for that one would say that that you are happy for the Court to decide without a hearing but as the Tenant has not paid their Rent in 4 months and mortgage is now in arrears a short date would be appreciated.


The Gov website warns Tenants that "If your claim is based on a section 21 notice and you have used the court's 'accelerated procedure', the judge can consider the claim documents, and any defence received, and make a possession order without a hearing taking place."

All I am suggesting is a simple summary of the key blockers with a note saying "Complied - See Page 37 in bundle", even a hyperlink in the PDF to the appropriate section and a link to jump back to the list). 

So any Judge or staff member can read those, then read the Defence and clarify in their own mind that they want to do.

As systems are developed the online filing is going to construct it so that they answer a question and have to upload the evidence for that question. Then the same for the Defence and then  finally for the response to the defence.





Quote from: jpkeates on November 01, 2024, 06:04:54 PMThe tenant can't ask for a hearing. They can offer a defence, which will trigger a hearing, but they can't just ask for one (as far as I understand the process).

They can make up a defence, or submit one that won't work, but any defence, pretty much, will cause a hearing, and the landlord can object, pointing out perhaps that there's no defence or the one offered isn't valid, but that will simply mean there needs to be a hearing to resolve that.

jpkeates

Quote from: heavykarma on November 01, 2024, 06:39:56 PMWhen did the law change regarding a landlord' s right to enter by prior notice for routine inspections and repairs,  or without prior notice in emergencies? 

The matter of " quiet enjoyment"  and the right to enter when necessary have been the case for the 25 years or so that I have been a landlord. I can' t  see that one precludes the other.
That's the problem in a nutshell. The right of a tenant to refuse access and the right of a landlord to enter are both present and neither "outranks" the other.

And, while everyone considers the tenant's right to quiet enjoyment to be the main obstacle, it isn't really. Quiet enjoyment is not completely uninterrupted enjoyment. But there's also an implicit right to exclusive occupation, which means that anyone can be excluded by the tenant, including the landlord.

heavykarma

I have just Googled, and the answers all state that failure to get gas safety certificates is a criminal offence, which can incur very hefty fines, and even prison sentences.

Would the fact that a tenant had refused entry totally protect a landlord from prosecution?  Personally I would not like to chance it.

 

David

You need to show evidence of 3 attempts to arrange it and them preventing it.

Send a BCC to a separate email of yours to show that the message was sent, this not only shows the header information but if the BCC email is using a different provider it also shows that other providers had no issue.  If you know a Tenant is with say Yahoo you can use a Yahoo account of your own to show Yahoo had no problem accepting your BCC.

It won't come to anything, all you need to do is show you have made attempts, the OP's Tenant is grasping at straws and trying to change the facts to fit potential S21 blockers, from what we have seen it seems pointless.

 


Quote from: heavykarma on November 04, 2024, 03:19:48 PMI have just Googled, and the answers all state that failure to get gas safety certificates is a criminal offence, which can incur very hefty fines, and even prison sentences.

Would the fact that a tenant had refused entry totally protect a landlord from prosecution?  Personally I would not like to chance it.

 

jpkeates

I think that people are confusing legally required and criminal. I don't see why it would be a criminal offence.

David

Sometimes people confuse the two and who has to enforce a criminal offence.
 

Quote from: jpkeates on November 05, 2024, 11:34:49 AMI think that people are confusing legally required and criminal. I don't see why it would be a criminal offence.

Lozenge1234

Quote from: David on November 05, 2024, 10:39:42 AMYou need to show evidence of 3 attempts to arrange it and them preventing it.

Send a BCC to a separate email of yours to show that the message was sent, this not only shows the header information but if the BCC email is using a different provider it also shows that other providers had no issue.  If you know a Tenant is with say Yahoo you can use a Yahoo account of your own to show Yahoo had no problem accepting your BCC.

It won't come to anything, all you need to do is show you have made attempts, the OP's Tenant is grasping at straws and trying to change the facts to fit potential S21 blockers, from what we have seen it seems pointless.

 


Quote from: heavykarma on November 04, 2024, 03:19:48 PMI have just Googled, and the answers all state that failure to get gas safety certificates is a criminal offence, which can incur very hefty fines, and even prison sentences.

Would the fact that a tenant had refused entry totally protect a landlord from prosecution?  Personally I would not like to chance it.

 
Well, I definitely have at least 3 attempts + evidence. This Friday is the last chance and we will see how it goes. My money is on the fact that he call up and cancel an hour prior. Or right before. I am also awaiting his Defence form to come through the post at any moment. All very anxiety inducing (I am not cut out for this!). But thank you, you have offered me reassurance in that the court staff/judge will hopefully see through it without the need for a unnecessary hearing.

jpkeates

You have to keep thinking of this as a business. There's nothing personal in this. You have a tenant who's not co-operating and they've every right to behave like that. Your job is not to be stressed by what they do and just work through the process.

For most people, the cost of using an eviction service is worth it because of the stress of an unfamiliar process.

There's a secondary benefit in paying a third party. The tenant knows it's serious and that they're unlikely to be able to do anything to address the issue other than move out.

David

Sometimes we need a like button.

Quote from: jpkeates on November 05, 2024, 01:44:16 PMYou have to keep thinking of this as a business. There's nothing personal in this. You have a tenant who's not co-operating and they've every right to behave like that. Your job is not to be stressed by what they do and just work through the process.

For most people, the cost of using an eviction service is worth it because of the stress of an unfamiliar process.

There's a secondary benefit in paying a third party. The tenant knows it's serious and that they're unlikely to be able to do anything to address the issue other than move out.