Updating post from Reddit.
I have given the tenant a section 8 notice due to non payment of rent for over a year. I did not secure his deposit and do not have an EPC for the property. I also did nothave a gas or electrical certificate for duration of the tennacy. With all that in consideration what should i expect? Thanks.
For anyone in my position or wanting an update the judge ruled in my favour giving him till Friday to leave. There is hope in the legal system. I was so stressed but the process isnt as bad as you might expect.
Not having the legal requirements met for managing a tenancy (protecting deposit, no EPC, no gas safety, etc.) shouldn't stop a Section 8, as you've served notice using legal grounds for possession.
These might get brought up at the court hearing but shouldn't get in the way.
However, you need to be aware that the tenant can sue you for compensation because their deposit hasn't been protected. They can't do this as part of your possession proceedings but if they speak to a solicitor that deals with possession cases, they may well suggest that the tenant does this.
Regardless of possession action you need to get your stuff in order. Get your gas safety, EPC, EIRC done, protect the deposit (or give it back to the tenant) and make sure you get all this stuff done for all future tenancies.
Thanks for your reply and advice. Hope your have a great weekend.
No point protecting it now, it won’t make a difference to the legal position.
True. OP has opened themselves up to a compensation claim regardless of whether they protect it or not now...
They can counterclaim for the deposit which wasn't protected plus up to 3 times the amount as a penalty. This would be taken off the amount they owe you in rent arrears.
The lack of electrical and gas safety could render the tenancy invalid, which may affect any payment order you receive.
Breaching electrical safety and EPC is generally dealt with by heavy local authority fines, so this would be unlikely to be dealt with by this hearing.
I really hope this is a bait post, because otherwise why have you not bothered meeting any of your legal obligations?
Not a bait post. I adimit I was naive and irresponsible. I do currently have a gas and electrical cert.
If OP has returned the deposit in full, the tenants options are limited.
The tenant can still sue for compensation even if the deposit is returned. The penalty for failure to protect the deposit is full return, or protection if the tenancy is ongoing and a mandatory additional 1-3x penalty. So even if the deposit is returned, in court op will have to pay it again at least.
Thats not true, but hey ho. In the event of full return, the tenant has lost nothing.
That is true, I’m not sure on what basis you claim it isn’t. It’s written in a law.
Heres the law. Para 214 Subsection 3. In short, punitive awards are only applied where the monies have still not been returned to the applicant.
https://www.legislation.gov.uk/ukpga/2004/34/part/6/chapter/4
That’s not how that is commonly interpreted. It does state that action can be taken after the end of the tenancy. If refunding the deposit hit you out of paying the damages for the breach then all landlords in breach would just refund the day before court so the award couldn’t be given.
……and they do. Or at least the LLs who are familiar with LL/tenant legislation do. The most common awards for non-compliance with deposit scheme compensation come from cases where LLs havent protected deposits and then still argue the toss over deductions for damages by witholding an amount.
Any application for compensation for failure to comply with deposit scheme legislation must demonstrate 2 things. 1, that the deposit was not indeed protected and 2, loss occurred because of it.
There is no requirement for a loss to be incurred in the legislation. The court must award 1-3x the deposit. That is mandatory and there is no defence or requirement to show loss
The ‘must’ is the minimum repayment of the deposit amount where they havent awarded para 3. Thats your 1 x.or up to 3x depending on how severe the level of breach. Its not the deposit plus an additional amount. (This is where people get confused. They think the 1x plus another 2x is on top of the actual deposit. Its not. The 1x is the deposit.)
So if the courts havent awarded para 3, (and/or 3a), which happens when the deposit doesnt exist anymore, they can award para 4 which is 1 x what the value of the deposit would be. In either case, the deposit (either in full or in part or its value) must still be with the defaulting landlord for them to order its return to the applicant.
He didn't protect the deposit, it's essentially free money for the client to put a claim in against him regardless if he returns it..
The tenant has to demonstrate he suffered a loss, not just that the deposit wasnt protected. A ‘loss‘ can be, delay in returning it as well as it not possibly being returned in full.
However, if the deposit has been returned before the tenancy terminated or on the day of termination when the tenant would be expecting it, and returned in full, then no court has ever awarded any punitive compensation for lack of protection as there is nothing to compensate the tenant for.
If i bank transfer it to him after the hearing should i be ok?
No, that ship has sailed. Your best bet is to return it in full now and hope he doesn’t take it further.
If he hasn’t paid the rent and is more than 2 months in arrears, then possession should be granted. Expect him to counter sue for the failure to protect the deposit.
Thanks. He owes around £10000. If he does counter sue cant the court deduct that from what he owes? I dont expect him to pay either way.
Yes, they can deduct.
Once a judgement is granted for arrears, you can apply to have money taken off his wages or UC to pay you and send baillifs to his home.
Yo were right
Make sure you turn up!
My wife had someone represent her at the hearing as she had work. The judge (lord knows why) took offence to this and adjourned the hearing to a later date. Turns out it's another 6 months of rent lost.
Adjourned for 6 months? I would of presumed once you have legal representation you wouldnt have to necessarily go. Wow.
Would have. Not would of.
Your solicitor and your advocate could be / are two different people.
Ask your solicitor if they have hired an advocate for your hearing to protect your position.
Personally I would make sure you have one AND attend the hearing.
In theory the Section 8 should be granted. However I would be taking a housing solicitor, trying to DIY this mess could get you in further trouble.
Thanks for your response. I am already DIYing it. Have court on Monday. Further trouble how?
Lot's of ways, this one always comes to mind however:
https://www.dailymail.co.uk/news/article-13791739/Desperate-homeowner-tears-roof-house-tenant.html
The legal system is not fair, its not logical, its a battle of who has the best legal arguments and a referree - some may read that and see "best arguments" which is not what was said. You can risk it on a simple case but when you have done so much wrong like you have, its a risk too far.
You should be expecting the book. Hopefully you get it.
Sounds like you deserve each other
You decided to be a landlord but didn’t bother to check your responsibilities. You’re an AH and deserve all you get.
The deposit aside as many above had addressed that already, the EPC could be an issue depending on when the tennacy commenced.
if it was after 2018 the TA should be subject to the Homlessness reduction act legislation.
in this event having not provided the relevant documentation at commencement of the tenancy (the how to rent pack) could render the notice invalid.
its certainly something Shelter would look into if your tenant aporoached them. if this was found the case then your S8 would falter on grounds of improper service and potentially consitute illegal eviction.
id have a loom through your documents and make sure everything is in order before you step foot in that courtroom.
andbto a previous point, re the deposit. If you bank transfered the deposit back to the tenant now, itd still be way after the 30 days and so they would be entitled to seek compo in line with TDS regulations.
i dunno if anyine mentiined above, but they are eligible to seek up to 3x the deposit.
assuming your tenant had the wherewithall to seek advice from shelter, id expect one of their lawyers to be representing. theyre basically no win no fee and this case on the info provided looks to be a slam dunk for them.
Any local authrority would refer this tenant to them.
Finally, its worth remebering that s8 is a discretionary awarding of a warrant of possession. one of the contributing factors is rental arreas ( based on your stated grounds) atvthe time of the hearing.
if your tenant pays an amount that basically reduces to 7 weeks outstanding theres a good chance a magistrate will declune the posession.
not trying to be a doomsayer and best of luck to you, but forewarned is forearmed.
Thanks for your response. He owes around 10 grand. Doubt he pays anything. He himself said the rent arrears is too much to payback at this point.
By your reasoning about not providing him with the EPC constituting as an illegal eviction how would Landlords evict people in these circumstances. Would he just be able to stay there indefinitely.
So theres a couple of bits to it in that scenario.
You would need to serve the documents required in the how to rent guide to them and then reserve the s. 8 again.
essentially starting over.
if you were judged as having attempted an illegal eviction, it would be the same as above, however there would also be a 6 month period of protection from eviction.
i. e, you serve the docs, then you would be unable to serve notic, neither s. 8 nor s. 21 for a further 6 months after that.
Thanks for your response again. Have you ever seen examples of these scenarios playing out. Just asking because these seem to be a worst case scenarios and different from the majority of responses which state it shouldn't necessarily affect a Section 8 notice.
I have spent a fair amount if of doing some work around the HRA for a local authority and butted heads with Shelter many times on this.
It really all depends on how clued up your tenant is. In terms of the legislation, you're in quite a vulnerable position.
hope it works out for you, if nothing else make sure you square away the required duties going forwards.
He had representation and the judged ruled in my favour. He used scare tatics, mold and not giving him a letter to give to the council for housing benifit as his defence.
Nice, sounds like his strategy was incoherent and petty.
glad it worked out.
Hopefully a few years in prison. To me it's the tenant who has taken the whole risk here you obviously don't care about your tenants or your property. The laws are there for you to follow not break. You're a dodgy LL.
Abit extreme dont you think?
Not in the slightest. I've lost four friends after a fire started in the wiring of the flat they shared. Try having to explain this to their families and loved ones, as well as other friends within our group peers.
I thought that I was being lenient. You can shove your down vote too.