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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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hello my friends are renting mine and my husbands house there

Resolved Question:

hello my friends are renting mine and my husbands house there was no contract in place we are now not really speaking to our friends but i asked them to look for another property and gave them 6 - 8 weeks notice as me and my hubby were selling the house we live in and needed to move back in to the property. my tenant has just messaged me now and said he is not paying rent for the month of april as we have asked them to leave and they need the rent money to put down on another house he said this is his right as were making them homeless please can you advise as they are not moving out of the house until 10.05.2014
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

May I clarify with you that your friends have had exclusive occupation of the property in question whilst they have been paying rent please?

Joshua :

Did they give you a deposit as well as a damage deposit or have they just paid rent?

Customer:

hello they have lived in the property exclusivly for around 4 years and just paid £150 pounds deposit rent due for month of april is £300

Joshua :

Thanks. Did they give you a deposit as a damage deposit?

Customer:

no it was just a normal deposit like a bond i charged them cheap as they were suppose to be our friends he said he has seeked advice legally and from citizens advice and as we were making them homeless they did not have to pay we gave them 6 - 8 weeks notice and they have found another house to rent

Joshua :

Thanks. How much did they give you as a deposit roughly? Do you still hold this in your bank?

Customer:

they gave £150 deposit in cash

Joshua :

Do you still hold this? Did you give them a receipt? What exactly was it agree it was? Sorry for so many questions on this point but it is potentially crucial as I will outline in a few moments...

Customer:

i did not give a receipt i would have had it to give them back but will now have to use it to go towards mortgage as its due to be paid on the 01.05.2014

Joshua :

thank you. The first point to make is that whether or not a formal contract was ever entered into, this arrangement constitutes an assured short hold tenancy. That is not need to be a written agreement for an assured short hold tenancy to arise as the conditions for assured short hold tenancy are set out in statute. providing your friends have had exclusive occupation of the property and to pay rent, they are assured short hold tenants.

Customer:

yes they have lived in the property for the past 4 years

Joshua :

as such, they are entitled to statutory notice to leave. you can give them statutory notice by serving them a s21 notice. you are required to give them to clear months notice from the date they receive the notice and the leaving date specified must be the day before rent has customary been paid each month. Any other notice is invalid and they can ignore ( there they can of course choose to leave voluntarily even if the notice you have given is not valid).

Joshua :

if you wish, you can use the following service to assist you in preparing the required notice - you would need to choose from the drop-down box the "periodic notice" option.

Joshua :

http://www.lawdepot.co.uk/contracts/eviction-notice-forms/

Customer:

so where does that leave me then im guessing i cant redeem the rent for the month of april but now there in arrears and i want them to leave now so what can i do

Customer:

i gace them 8 weeks notice verbally on the phone on 12.04.2014 but now with refusing to pay rent i want them out asap

Joshua :

conversely, the tenants can give you one clear months notice to leave again with the proviso that there notice can only legally end the day before rent is customarily been paid. Again, there is nothing stopping you amicably agreeing any leaving date you wish however. the tenants are required to pay you rent up until the date they can legally leave by virtue of any valid notice or date you amicably agreed between you. I cannot believe any citizens advice bureau has advise them as they claim but in the unlikely event that they have, the advice they have received is entirely incorrect. you have a statutory right to recover possession under the Housing act with the only provision being that you must serve a valid notice as we have discussed above to do so

Joshua :

unfortunately, from what you say, the notice you have given them is not a valid statutory notice and therefore if they wish, the tenants could ignore the notice entirely that they would still be liable for rent until such time as they leave as above

Customer:

ok so if i send them a letter from 12.04.2014 serving them 8 weeks notice then what as they are moving out around the 10.05.2014 anyway so how do i recoup the rent and how can i get them out of my property now as i do not want them remaining in it as they are not paying ?? thanks

Joshua :

there is a very significant danger however which you would do well to avoid relating to the deposit which is why I asked similar questions about it. Because this is a assured short hold tenancy, any deposit you accept separately to the rent is considered a damaged deposit unless it can be shown to be some other form of fee - for example, many agents will charge referencing fee. where the deposit is taken which is not a fee, the landlord has a requirement to protect this deposit in an approved deposit protection scheme within 30 days of receipt. Failure to do so, can mean that the landlord cannot serve a valid notice to evict his tenants and also the tenants can sue the landlord for the return of the deposit and up to 3 times the amount in compensation. accordingly, you may wish to consider carefully the issue of the deposit. From what you say you did not give a receipt

Joshua :

regarding the notice, remember that you are required to give them two months notice as opposed to 8 weeks notice. if they leave voluntarily of course the issue of a valid notice is somewhat academic however it would be worth putting in place a valid notice in case they decide to stay longer than they claim which lease means you could then go to court to recover possession if necessary.

Joshua :

Regarding the rent, this would be a relatively straightforward matter of issuing proceedings in the Small Claims Court for recovery of the rent due. You would need to provide evidence to the court of the amount of rent that has customarily been paid given the lack of a written contract. Presumably you would be able to provide a bank statement or some other form of rent book to show the amount of rent that hasn in practice been paid by your friends as rent in order to evidence the amount due. In addition to the rent do, you can also claim interest at 8% per annum in the section 69 of the County Courts act and also costs associated with issuing the claim

Customer:

i didt give a receipt for deposit i would like to message tenant back what should i say that his information is in correct and that he should pay rent up until they leave

Joshua :

the simplest way to issue proceedings is by using www.moneyclaim.gov.uk

Joshua :

you may consider responding to your tenant that the information he has received is most misguided and incorrect and that you will be seeking rent for the entire period in which he is in occupation of the property up to and including the date which he retains possession of the property to you

Customer:

so if we go to the house now can we demand that they leave as they are not paying ?

Joshua :

Unfortunately not. You can ask them to leave but you cannot demand it. To demand it you would need a court order.

Joshua :

is there anything above I can clarify for you?

Customer:

Hi Nico and Michelle, I thought its only fair to inform you that unfortunately this month's rent will be with held due to the need of a deposit for new property. I have taken advice both from the citizens advice and legal, and as you only informed me of the need to vacate on April 12th and said I only had 6-8weeks, less if possible in order for you to move in it was impossible for us to pay rent and deposit for new house. It is also illegal as you were essentially making us homeless, therefore the options were stay in this property and you evict me legally which will take more time and money or move, and as you said you have to move in here yourself as soon as possible. Also I feel that you should also consider the extra 75 pounds for extra weeks? You have had over the time we have been here which as last November proved were an over charge. Apologies in advance. Dave.

Customer:

this is the message i received from my tenant

Customer:

i gave 2 months notice

Customer:

verbally on the phone

Joshua :

Ah this is not quite tehe same thing as saying they don't have to pay rent. What they appear to be attempting is to negotiate a reduction in rent in return for leaving earlier as you have requested. They are correct in saying that you cannot legally evict them within giving them the required two months notice. Your options in respect of the tenant are to either serve them the required 2 month s21 notice and you are fully entitled to charge them rent for the period until they leave or alternatively negotiate with them to leave earlier than this minimum period for which they are asking for money off the rent.

You will need to decide whether to negotiate an agreement to leave earlier in return for a lesser amount of rent or insist on the full amount of rent and serve them with the required 2 month statutory notice which may mean you cannot recover possession for more than two months.

Joshua :

Unfortunately as above the notice you have given them already is not valid I regret and therefore you cannot enfore it.

Joshua :

Is it crucial that you move in before a further two months?

Customer:

well we have sold are house and we think were be moving around 6 weeks from now plus there is alot of damp in the house which they did not tell me so i have to get a builder in to rectify before we move in

Customer:

to clarify they are not willing to pay towards the rent this month he is keeping it to put towards his new house

Joshua :

Thanks. You will therefore need to decide if it is better to a) negotiate an earlier leaving date in return for a reduction in the rent - you can negotiate on this point b) serve the valid 2 month s21 notice and wait until the two months is up or hope that they will leave earlier voluntarily charging the full amount of rent you are entitled to.

Joshua :

It depends on which option you think is likely to be more financially beneficial to you.

Joshua :

If you are aware that he has already signed up to rent another house then tactically you could serve him with the s21 notice and demand the full rent on the basis that you hope that he will ask to leave earlier because he will not want to have to pay you rent and rent on a new house.

Joshua :

For the avoidance of doubt, unless you agree otherwise with him he is liable to you for the full amount of rent until he leaves or you recover possession from him validly

Customer:

so if i send an s21 notice to him giving 2 months notice from 12.05.2014 can i get that notice from that link you sent me

Customer:

notice from 12.04.2014

Customer:

will it state in that notice that he is liable to pay full rent cost

Joshua :

The notice does not specifically refer to rent. It does confirm the date you specify is the date tenancy will expire. Rent contractually remains due until that date.

Joshua :

Is there anything else I can help you with?

Customer:

ok so is this s21 notice in that link you sent me

Joshua :

Yes - there is a drop down box with several options. You will need to select the "periodic tenancy" option

Customer:

i have just been on the lawdepot above and it says draft over it do i just copy it word for word ?

Customer:

on to word document also i cannot type on document

Joshua :

If you follow the process through it will give you the finished form without the word draft. You click the "create my document" button to create the finished form. Alternatively you can copy it out but better to use the site to do so/

Customer:

just so i understand this s21 serves them the 2 months notice required by law in whicth they must vacate the property i will put notice from the date i verbally told them 12.05.2014 then hopefully they will leave next week and i can take them to small claims court to recover rent owed

Joshua :

That is correct but unfortunately you cannot back date it. This will render the notice invalid. It must be two clear months notice from the day they receive it - allowing two extra days if posting and remember the date must be the day before rent has customarily be paid so it may be that you have to give more than two months notice.

Customer:

well the rent is due tomoz so if i post this s21 tomorrow when should the end date be thanks

Customer:

for them to leave ???

Joshua :

On that basis it would be sensible to hand deliver the notice if possible this evening - I appreciate that may be hassle or impossible. The reason being that if you do not deliver it today you will unfortunateluy therefore have to give almost three months notice.

Customer:

what if they dont answer the door or say they never received it

Joshua :

If you are able to hand deliver it consider taking a witness with you or asking them to sign an acknowledgement when it is delivered. You can also take a videoor photo of yourself putting it through their door and emailing it to yourself to evidence the date it was recorded. This can be effective as evidence if disputed.

Joshua :

On the above basis the date for the avoidance of doubt for the notice will be 30 June 2014

Joshua :

Is there anything else I can help you with?

Customer:

ok so il video either me handing the notice to them or posting it through the door

Joshua :

Quite so.

Customer:

ok so il fill in the blanks on the s21 form and write an aknowledgement paper and if they dont answer just post it through the door thank you

Joshua :

I hope all goes well. If I can assist any further please do not hesitate to contact me.

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though

Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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