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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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Hi There,My tenant has been a tenant for the last 22yrs

Resolved Question:

Hi There, My tenant has been a tenant for the last 22yrs in my property on an AST. This property belonged to my father-in-law who passed away before the tenant moved in. He and his partner were put in there by the Executor of the Will and Trustee at the time for my husband (who was only 17 yrs old at the time). My husband took over the tenancy a fews hers later, but unfortunately passed away in 2005, when I wrote a tenancy on the 5th aug 2005, for the tenant - which is now a periodic tenancy. A sec 20 was served, by the the Executor, before the original tenancy (22 yrs ago) was given to advise them this would be an AST. I have copies of all documents. I have, after 2007, spoken with his partner about them leaving, but they said they wouldn't leave. At the beginning of this year I spoke to him again about leaving and agreed to give him until Jan 2015 to leave (a year's notice). He agreed to and was thankful for the time given. I sent him the official notice on the 22/9/14 and although he agreed, at the time, to leave is now saying he won't go due to him not having saved the money to do so and because its his home and his kids' home even though 2 of them are adults and the last is 14. The kids do not live with him full time since having split with his partner. He has his rent paid by the council every 4 weeks and he tops up the amount by £60 to take it to £1000 per 4 weeks. We agreed on the tenancy agreement that this amount would pay every 4 weeks. I have just received an email for his solicitor to say that he doesn't believe the sec 21 to be valid and that I should 'issue possession proceedings'. I don't know if they have any of the contracts (1st or the last one nor am I sure if he has the sec 20). Coincidentally, I had already, on the 15th dec 2014 (which I believe is over the 2 month notice period), delivered the N5b form to the county court, because the tenant had already told me a few weeks ago that he would not leave on the agreed date (31/1/15). Do you think I have anything to worry about? There was a deposit on the original contract but my husband had used this against some alterations which the tenant had carried out on the property without permission - however I have no proof of that. I do have a letter from late husband to the tenant complaining about this work and also telling him that he would be asked to leave. I did not have any deposit given to me in 2005 (nor since) when my agreement with him was written.

You might be able to see that I have asked this question previously and was advised to give a section 21, but no advice regarding the (seemingly) necessary sec 20 was made.

Please could you also let me know where I would stand with regards ***** ***** doc too (it was dated the 26th august 1992).

Thank you

Submitted: 2 years ago.
Category: Law
Expert:  Ash replied 2 years ago.
Alex Watts :

I have the gambling book and tony robbins unlimited power cd

Alex Watts :

Sorry about that.

Alex Watts :

Hello my name is ***** ***** I will help you with this.

Alex Watts :

On what basis do they say the Section 21 notice is not valid please?

Customer: Hello
Alex Watts :

Hello

Customer: HelloThey haven't given a reason.
Alex Watts :

OK.

Alex Watts :

In short they have an AST but its now periodic.

Alex Watts :

Who owns the property now?

Customer: I do
Alex Watts :

Ok.

Alex Watts :

And you served the S.21?

Customer: Yes. On the 22/9/14
Alex Watts :

Ok. I dont understand why it is not valid.

Alex Watts :

But I would agree, for the avoidance of doubt I would issue possession proceedings.

Alex Watts :

You need to complete form N5

Alex Watts :

http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n005-eng.pdf

Alex Watts :

And form N119

Alex Watts :

http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n119-eng.pdf

Alex Watts :

The Court will then list the matter for hearing and decide whether to give possession.

Alex Watts :

If the Court gives possession then your tenant will have to leave.

Customer: then I went to court in shoreditch and dropped off the n5b forms on the 16th dec 2014 as he told me he would not leave on the agreed date due to not having any money to move and that he didn't want to as it was his home since 1992
Customer: What is the N119 form about?
Customer: Is it too late to send that form in now that I've already delivered the N5b form?
Alex Watts :

Well see what happens with that, N5b is for the accelerated procedure.

Alex Watts :

However if the Council pays the rent then they need a Court order to rehouse.

Alex Watts :

Can I clarify anything for you about this today please?

Customer: Yes can you please tell me what the N119 form is about and can you please go over the steps I've taken with me to let me know that I have done things correctly. I am aware of the points you have already made, but I just want to ensure that all my steps are correct.
Customer: I am concerned about the notice given back in 1992 that the tenancy was going to be an AST.
Customer: Would I be scuppered if that is incorrect?
Alex Watts :

N119 is the particualrs of claim.

Alex Watts :

But if you have already submitted the N5b its too late to do this now.

Customer: They signed the tenancy on the 28/8/92 and signed the sec 20 on the executor at the time signed the sec 20 on the 26/8/92. However, the tenant signed it but did not date it.
Customer: Sorry for not getting back sooner. I'm organising a party for my little one so have to keep leaving the laptop.
Alex Watts :

The AST came into force in 1997

Alex Watts :

The tenancy was signed in 1992.

Alex Watts :

At present they have a periodic assured shorthold tenancy

Alex Watts :

So they can be evicted with notice.

Alex Watts :

You have served a notice to quit which is correct

Alex Watts :

Therefore they can be evicted, but ONLY with a Court order

Alex Watts :

Does that help?

Customer: You haven't mentioned the sec 20 - I was told that if this is wrong then I cannot evict him
Customer: What is the N119 form please?
Alex Watts :

Yes if its wrong you will need to reserve that correctly and submit again

Alex Watts :

The form N119 is the particulars of claim for possession

Alex Watts :

Does that help?

Customer: So if i understand correctly, I would still be able to issue a sec 20 after 22 years? But would that mean I would have to give him another AST once I have served the sec 20 again? I hope that the one served 22 years ago is correct anyway, but I was told in the past that if one was never served or was served incorrectly I would never get him out - just to explain my anxiousness
Customer: It wasn't necessary that I serve the n119 for
Customer: form at the same time I served the N5b?
Alex Watts :

Yes you can issue a new Section 20.

Alex Watts :

No it does not mean you are giving a new AST

Alex Watts :

It simply means you are service notice again.

Alex Watts :

Generally you serve N119 at the same time as N119 because the Judge has a better grasp.

Alex Watts :

Not all Judges want it

Alex Watts :

Does that clarify?

Customer:

In the last tenancy there was no mention of a deposit, but on the ones previous to 2004 there was one of £585 on the agreements. My husband used this against the problems the tenant caused in the property and that is why there was no mention of a deposit in the new tenancy agreement.

Customer:

I have no written proof that my husband used this deposit, but the tenant also has no proof that a deposit was taken after 2005 when my name appeared on the contract. As it showed on the earlier tenancies, does this have repercussions on the sec 21 I have served recently, or should it have appeared on the last tenancy agreement for me to have had to protect it?

Alex Watts :

The deposit should have been protected. The onus is on you to show how it was used, that the tenant was notified etc.

Alex Watts :

Does that help?

Customer: No. Could you answer the following a bit more for me to make it clear please?Even though the deposit doesn't appear on the contract between him and I and I never physically had a deposit from him? And even though that last contract was written in 2005?
Customer: Doesn't the fact that I wrote a new contract with him as a new landlord, who had taken over at that point, not mean that the old deposit has nothing to do with me? If it does have an impact on me, does that mean that even if the tenant doesn't make a claim on the fact that the deposit hasn't been protected, the judge can automatically throw the case out? If the judge does throw it out how do I rectify things to resubmit a valid sec 21?
Customer: The council owe me £3000 pounds in rent, has made unauthorized changes in the property, has pets without permission and works in the property with permission either, so could I possibly use those reasons as a defense regarding the deposit?
Customer: If you could answer those questions in a bit more depth for me then my position will be clearer. Thanks
Alex Watts :

The tenant must have had a deposit. If he has had the same property and deposit, whether it be your late father in law etc. The tenant is still owed the deposit so someone owes it

Alex Watts :

The fact you write a contract yes means the deposit should have been returned. So someone owes him a deposit.

Alex Watts :

The Council may owe you money but that is a matter between you and them not you and the tenant.

Alex Watts :

The Council made changes not the tenant, Any claim is against the Council

Alex Watts :

Does that help?

Alex Watts :


If this answers your question could I invite you rate my answer before you leave today.


If the system won’t let you please click reply.



Please bookmark my profile if you wish for future help: http://www.justanswer.co.uk/law/expert-alexwatts/

Customer:

I'm afraid your answer has not helped me. I asked questions above which you have not answered. Can you please answer them before I rate you?

Customer:

Thank you

Alex Watts :

Perhaps you can outline the question(s) you have remaining and I can assist

Alex Watts :

I am here now online so we can answer all your questions

Customer:

Sure, I can copy and paste them from above for you:

Alex Watts :

Sure. But I did think I had answered everything.

Alex Watts :

Do it one by one so we can work through them together

Customer:

I did not know my late father-in-law, nor my husband, nor the executor of the Will when the tenant moved in so how would I be responsible for the deposit and executor of the Will took at the time of my husband's father's passing? The tenant may be owed a deposit, but why would it be from me?


Alex Watts :

I did not say you would be responsible for the deposit. I said someone will be responsible, it may be from the estate or husband but no doubt someone will owe it and the tenant may raise that as an issue.

Alex Watts :

I wanted you to be aware of that

Customer:

My husband has also died (back in 2005), so the tenant can only approach the estate about the deposit?

Alex Watts :

Yes that is correct

Customer:

In the meanwhile the one and only contract I have with him makes no mention of the deposit and he signed it knowingly back in 2005, so as far as that is concerned can the tenant make a claim that as the old deposit was not protected and then also say that in that light the sec 21 which I served this september should be thrown out?

Alex Watts :

Ok - that should be fine then, if there was the new contract and no new deposit taken

Customer:

So the fact that he signed my contract knowing there was no deposit mentioned will help me and not delay the section 21 and the N5b forms I have already submitted?

Customer:

I won't need to start over again due to that old deposit?

Alex Watts :

Correct

Alex Watts :

Does that clarify?

Alex Watts :

There is a new contract with you, no deposit so you can proceed without delay

Alex Watts :

Just so you know I need to go to bed soon so it may be I may not respond until morning

Alex Watts :

I am up at 7am to go to the office!

Customer:

Thank you for staying up. Sorry to go on, but I needed clarity as the law can be confusing and I'm doing this on my own.

Customer:

Good night

Alex Watts :

Sure.

Alex Watts :

Is there anything else I can clarify, or are you all good?

Customer:

Now that I'm clear that you're saying that my contract with him and the forms I have submitted to court are correct (as well as the order of the steps I have taken are correct) and that the old deposit won't cause a problem, then I hope I'm all good.

Alex Watts :

Great.

Alex Watts :

If I could ask you to rate my answer before you go today please - the button should be at the bottom of the screen

Alex Watts :

If you need more help please click reply

Alex Watts :

Happy Christmas!

Customer:

Sure - if the judge, for some reason says the sec 21 has been served incorrectly and it relates to the deposit, can I come to you with questions re this?

Alex Watts :

Yes that is fine.

Alex Watts :

Just put any questions For Alex W and I can pick them up

Customer:

So once I've rated you, I can come back to you? Thats great

Alex Watts :

Yes you can. Or you can ask for me. Either way is fine

Customer:

Thanks

Alex Watts :

Easier to ask for me as I am more likely to see it as I will be messaged

Customer:

Happy christmas

Alex Watts :

Merry Christmas to you! Santa will be here soon

Alex Watts :

http://www.noradsanta.org/

Customer:

I hope he brings us both lovely gifts (mine would be the end of this case lol!)

Alex Watts :

I hope so too.

Alex Watts :

Have a good one and please do take a moment to rate before you go

Customer:

Sorry again, I was about to rate you, but its saying its going to clear this chat - I don't want to lose the info. Can I access it once I've rated you? If, so where can I find it? Thanks :)

Alex Watts : Yes. The format changes that's all, you can come back to it at any time
Alex Watts : Does that help?
Customer:

Thanks

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