UK Landlord Forum / Life

Hi,

The tenancy agreement was a rolling 6 month period, but after out tenant had difficulty paying and approached the Housing Options team from her local authority they suggested amending to a rolling 1 month agreement to reduce the arrears. We obliged and sent an addendum for the tenant to sign and she has signed and returned, but with what looks like her serving notice upon us.

Her precise wording is;

"unfortunance circumstances. I will not be able to say in the property as it is to Expenses. and not suitable for my needs?"

Does this qualify as notice being served upon us by the tenant?

I should point out that the tenant is registered disabled with a low IQ and that the local authority have previously suggested that if we serve her notice we would be at risk of a discrimination claim. Is there any risk of such a claim in the event that the tenant themselves have served notice? I would think not, but would like to be sure of course.

We are somewhat hopeful that this constitutes notice and that there is no legal recourse here, because during her time at the property she has been unable to use the bathroom facilities as they were designed and has on numerous occasions flooded the property causing extensive damage which will only continue should she remain there (and we are advised to exercise caution if considering eviction)

Finally, can anyone recommend any insurers to cover the risk of being sued? While we do not expect the tenant to pursue any sort of legal claim and do not feel that there would be one, the remarks from the local authority have us on edge!



Thanks,

D

There is no such thing as a rolling 6 month tenancy,so assume you mean a 6 month AST? I don't understand how going onto a periodic tenancy is going to help with arrears.That said,I think you should ask the tenant to sign a properly worded document,giving a date on which she is leaving,with a minimum 1 months' notice.I would be very surprised if you could get insurance retrospectively,and doubt that you would be sued under the circumstances.The council will give you "advice" that suits their agenda,but that is not always accurate.Does this lady have a carer or guardian who could assist you in dealing with her? If you have rent arrears,it cannot be argued that you are discriminating against her.       

Well, you can have a six-monthly periodic tenancy which is how I read it.

Hi,

while we wanted a standard AST the letting agent agreed terms with the Council and the Trust (her source of income, left by her late mother) and signed on our behalf committing to;

'such rent being payable by standing order to the landlord(s) in advance by the following instalments of £xxxx.xx being 6 months payable in advance on the commencement of the let and then 6 monthly thereafter'.

While this is not what we expected nor wanted, we became bound when they signed it on our behalf.

The addendum helps because her rent is now paid by HB and the trust, but HB will only pay 4 weekly in arrears and the trust monthly in advance. As for the 29th of last month, 6 months rent fell due but by moving onto a monthly periodic agreement that meant she could avoid being in escalating arrears - this was suggested by Housing Options and something we were open to as if a tenant in a 6 monthly payment cycle is in arrears then its 3 months before you can consider S8G8

She has support from;

Housing Options - They have re-homed her in inappropriate private lets for the past few years
Housing Standards - They have thrown their weight around with us to repair the damage she causes because the bathroom is unsuitable (she needs a walk in)
Occupational Health - They advise Housing Standards on alterations to the property to suit her needs

They are suggesting a grant for a wet room (not adverse to this, would at least stop the damage) but Housing Options state she would not be able to stay there long term enough - she has to pass a 5 year affordability criteria and say she intends to stay that long for the grant to be an option.

We'd like to be able to facilitate her getting something more suited to her needs, we can only do that through eviction but there is no guarantee that the next let will be a better let and with the council suggesting that eviction will lead to them passing to their legal team to consider whether its a revenge eviction or discriminatory is quite intimidating (she's lovely is the representative, but she knows how to intimidate that's for sure!)

We wouldn't like to be responsible for writing a letter on her behalf that she signs, we would much rather she has support in any decision that she chooses to make

Thanks,
D

Quote from: KTC on October 22, 2019, 09:57:32 PM
Well, you can have a six-monthly periodic tenancy which is how I read it.

Hello again

Neither term are explicitly referenced on the tenancy, but the wording is as quoted regarding payment frequency. Most upset about this tenancy agreement to be honest, the estate agents rushed her in with the council and signed it though we said we wanted to review the terms first!

Is  Housing Options a charity or special HA? I have a property with a charity that houses vulnerable adults,and for 9 years it has worked very well.They completely decorated and recarpeted when the first tenant moved out,and replaced the cooker and heaters which I had been about to pay for.Another charity has taken another of my rentals this week.I hope it works out,but both of the  charity's contracts state they will make good any damage done by their clients.
Have you complained to HO? They really should be held to account for their lack of care to the lady and yourself.I think you should have a word with a solicitor,ignore the council until you do so. 

Hi,

@ HeavyKarma - Housing Options is not a charity no, it is part of the council, amongst other things they work to assess affordability and re-home those in need. I definitely will not ignore the council, if i do I run the risk of an improvement order being raised and if that happens it significantly reduces my chances of being able to serve notice. Don't disagree that a solicitor may save money in the long run, but it also might not - it's entirely possible that Housing Options will re-home her because she cannot keep up with the costs and I wouldn't need to incur any costs in that situation.

Could anyone (@KTC perhaps?) confirm something for me please - appreciate you may need to see some of the tenancy agreement for this but what happens after a 6 month periodic, assuming that is what this is?

The tenancy states "'such rent being payable by standing order to the landlord(s) in advance by the following instalments of £4050.00 being 6 months payable in advance on the commencement of the let and then 6 monthly thereafter'."

The 6 monthly thereafter to me suggests that the tenant is in arrears if she does not pay 6 months in advance but a representative from the housing options team has suggested that "Just because the tenancy was initially a fixed term 6 months it doesn't automatically continue on a 6 month basis".  We've never had a tenancy agreement like this one, we're used to AST's but the letting agent agreed and signed on our behalf (grr!)

The housing options team suggested moving to a monthly payment frequency, so we offered up an addendum to the tenancy agreement which made so, if this is not signed then does the tenant owe on a monthly basis or a 6 monthly basis?

Thanks,
D

I think you raised this query before,and the general consensus was to issue 21? If you do so now,there will be no question of revenge eviction being used against you.Other landlords have previously managed to get her  moved out by the sound of it,so it must be possible.
Do you know what the ladies legal status is? If she is not considered of sound mind,her signature will not be valid.I would imagine the holder of the money in trust could have power of attorney in this case.I would certainly not be dancing to the council's tune until you consult a lawyer.They are receiving public money to provide this service,and by the sound of it not doing a very good job.You could do worse than speak to your town councillor/MP if you want to avoid legal fees.They will be falling over themselves to curry favour with the electorate right now!

Hi yes I did, sorry did not follow up on that thread, i attended the property with the S21 notice in hand and was about to issue when the council representative who I thought was there to discuss the options available to assist the tenant in getting in to appropriate housing suggested that I should not do it or she would pass to their legal team to test for a disability discrimination case. It was a very strange situation, everything in the lead up to it seemed as though we were on the same page and that serving notice was what both the tenant and council wanted - as it was the only way to really help the poor lady but things quickly changed from a sub-text of 'lets work together to help her' to a sub-text of 'we'll look to sue you if you do anything to get her out!'

Quote from: Silmaril on October 25, 2019, 09:43:55 AM
Could anyone (@KTC perhaps?) confirm something for me please - appreciate you may need to see some of the tenancy agreement for this but what happens after a 6 month periodic, assuming that is what this is?

The tenancy states "'such rent being payable by standing order to the landlord(s) in advance by the following instalments of £4050.00 being 6 months payable in advance on the commencement of the let and then 6 monthly thereafter'."

What you quoted reads to me like a six-monthly contractual periodic from the start. Now assuming alternatively that it was a six month fixed term with all six months rent payable up front, the statutory periodic that arise at the end of that fixed term is also going to be six-monthly.

Just serve the s21. If they ask why you serve notice, "I don't need to provide one, s21 is no fault eviction". If the court ask, ongoing arrears is a pretty good non-discriminatory reason. I'm pretty sure I already mentioned something about keeping note of your decision making for potential evidence on another forum where you posted this.

Serving the s21 notice requires me to know what period of time to put on it.

I've managed to confirm elsewhere that this is indeed an AST and not periodic, but that it has 6 month payment terms attached. What I've not however been able to confirm is if I should be issuing 2 months notice here or 6 months due to the payment terms?

The tenancy states 6 months, but it has been agreed with the help of the council that payments will be made monthly to us, the first of which has been received (in part, because its broken into two elements).

Can I assume that as the payment frequency is now monthly and this is an AST that a s21 should offer 2 months notice and not 6?

AST stands for assured shorthold tenancy, which describe the type of tenancy. It can both be fixed term and periodic. Fixed term means there's a fixed length of the tenancy, it will start and end on a specific date agreed in advance, notwithstanding the possibility of it being ended early by agreement or in accordance with a break clause. Periodic means there is no definite end date, it will continue until and less one of the party effectively saying they don't want it to continue in the case of the tenant by giving a notice to quit, or in the case of the landlord by going to court to end the tenancy.

QuoteServing the s21 notice requires me to know what period of time to put on it.

That is a problem.

If there was an initial fixed term of six month, and then statutory periodic, then you can give 2 months notice in accordance with s21(1). You can also give notice under s21(4) in that case. If it's been periodic from the start, you can only give notice in accordance with s21(4). Given I think that you've had a periodic from the start, and the same notice would still be valid if not, I would say serve it in accordance with s21(4). That means at least six months notice, not ending earlier than the end of the next full period of the tenancy.

QuoteCan I assume that as the payment frequency is now monthly

The period of the tenancy is not affected by changes in payment frequency when the tenancy is already periodic.

What would confirm definitively please that a 6 month notice period is required?

Housing options stated to me;

"When a fixed term ends, a tenancy automatically becomes monthly periodic unless the Landlord would like another 6 month fixed term. If this was the case you would need to produce a new 6 month tenancy for [tenant] and ask her to sign it. Just because the tenancy was initially a fixed term 6 months, it doesn't automatically continue on a 6 month basis"

"[tenant] can also refuse to sign a 6 month tenancy which would then result in you taking one of two courses of action

1. Serve notice as you want a fixed term of 6 months and the tenant is refusing
2. Allow the tenancy to just run on as a monthly periodic tenancy
"

They don't know what they're talking about.

"When a fixed term [assured tenancy] ends [other than by an order of the court or through the surrender or other action of the tenant], a [new periodic] tenancy automatically becomes monthly periodic [arise in accordance with s5 of the Housing Act 1988] unless the Landlord would like another 6 month fixed term [and the tenant agree another tenancy explicitly]. If this was the case you would need to produce a new 6 month tenancy for tenant and ask her to sign it. Just because the tenancy was initially a fixed term 6 months, it doesn't automatically continue on a 6 month basis [The period of this new tenancy is 'the same as those for which rent was last payable under the fixed term tenancy']"

However, if they are insisting that the original tenancy was a six month fixed term, then that's to your advantages so just give two months notice.

I would be extremely surprised if they have seen the tenancy to be honest, and if i give 2 months and they *don't* react as I expect (i think they will move her out, rather than see this go to court) then it would be thrown out surely, not sure i can take the risk?

It's all very confusing

Quote from: KTC on October 25, 2019, 02:51:51 PM
They don't know what they're talking about.

" [The period of this new tenancy is 'the same as those for which rent was last payable under the fixed term tenancy']"

If the council are indeed incorrect about the term of the tenancy, does this mean then that instead of being about £120 in arrears by the end of the month, because the tenant refused the addendum she is in arrears for the full 6 months? I think so?

You give two months notice (on Form 6A btw since this was never mentioned before and I'm assuming you're in England not Wales). And if you then need to go to court, you submit in your paperwork that the tenancy is a statutory periodic tenancy arising from an initial six months fixed term tenancy with rent payable six-months in advance. If the tenant with the help of the council tries to defend that the notice is not long enough, you worry about it then. You can always submit your communication with the council as supporting evidence that there was a fixed term.

Quote from: KTC on October 25, 2019, 03:18:23 PM
You give two months notice (on Form 6A btw since this was never mentioned before and I'm assuming you're in England not Wales). And if you then need to go to court, you submit in your paperwork that the tenancy is a statutory periodic tenancy arising from an initial six months fixed term tenancy with rent payable six-months in advance. If the tenant with the help of the council tries to defend that the notice is not long enough, you worry about it then. You can always submit your communication with the council as supporting evidence that there was a fixed term.

What happens if it does get defended and thrown out, does that impact my ability to evict?

If I'm correct that she is in arrears for thousands,  because she refused an addendum to move to a monthly payment cycle, they will relocate her themselves - so I'm thinking i could take the route of chancing the 2 months or i could quote Section 5, Subsection 3, Part d - but only if that absolutely means she is thousands in arrears.

Edit: though actually its unclear from the legislation if the rent arrears are based on the 6 month period or not - the legislation seems to care not for the rent or rent frequency and only for the length of the agreement. So I'm not sure if arrears is a good way to go, or even possible - even though the addendum has not been agreed and 'on paper' it looks to me that she owes for the 6 months up front.

I think you need to be clear what it is you want to achieve.It is all very confusing to read,I am not sure if you just want her out,waiving any arrears or costs for damages she has caused,or if you want all money owed to you.With all due respect,you seem unwilling to take any of the advice given here,and are not prepared to see a solicitor.You really are letting HO manipulate and scare you,while valuable time is frittered away.

Quote from: Silmaril on October 25, 2019, 11:01:24 AM...things quickly changed from a sub-text of 'lets work together to help her' to a sub-text of 'we'll look to sue you if you do anything to get her out!'

The sub-text is inferred by you. Sure, it may be implied by the person you were talking to... but you aren't going to get anywhere if you don't begin. Issue a Section 21, then see what happens... if you end up being "sued", then drop it if it you feel that's the right course of action... you'll only find out what happens when you initiate the action. It may be empty threat, it may be standard chit-chat, it may be that something concrete occurs... which will provide you with more information. You can just abandon your "ill-advised" (if it turns out to be such) Section 21 at that time if the assorted Council departments come back at you with some very good reasons. If your Section 21 is valid there won't be a good reason, right? If there is good reason, then at least it should be written down and provide you with clarity on how to handle this.

Jeez, you could even say to your contact at the Council - I'm serving this, believing it's entirely valid and unobjectionable, just to see what objections your team may come up with (with a nod and a wink - Councils love nothing more than expending resources). If there's no objections, then she's gone... and you'll probably need to step up shortly afterwards. If there's a discrimination case or a revenge case they'll find it for you.  At the moment you appear to be doing nothing but asking questions and getting yourself tied in knots (I'm sure there's lots going on).