How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Joshua Your Own Question
Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 26069
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
35043042
Type Your Law Question Here...
Joshua is online now

We are a golf club (almost insolvent) with a cottage we rent

Resolved Question:

We are a golf club (almost insolvent) with a cottage we rent out as he was not paying his rent. Our solicitor who is also the letting agents solicitor issued a section 21 which was not actioned correctly and followed up with a section 8 which the tenant counterclaimed with claims for non repairs , injury due to non repairs etc.
We have a record of attempts to gain access to carry out repairs but were refused.
There was also a claim about the deposit and the solicitor /lawyer didn't have the details to confirm it had been dealt with properly. The judge gave the solicitor/us until 10th April (new date) to produce evidence re deposit.
The section 21 has expired and we want the tenant out. We go to court on 10th April. Have confirmation that deposit was treated correctly.
What are the chances of it being moved to higher court?
We can't afford to continue if it does but tenant has legal aid.
What can we do? What would our cheapest option be?
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 :

You mention the s21 notice was not actioned correctly. In what way please - was it prepared incorrectly - e.g. the wrong date specified?

Customer:

Not sure but second one was ok and expired on 20th March

Joshua :

OK so to be clear a s21 notice was issued but was invalid for an unknown reason but a second one was issued which you are confident is valid - is that correct please?

Customer:

Yes

Joshua :

Thanks. You have started possession proceedings under the s8 route which was defended by the tenant. Do I understand correctly that since then you have issued accelerated possession proceedings using the new valid s21 notice?

Customer:

Yes s21 notice was issued

Joshua :

Thanks and is it on the basis of this new notice that you are now seeking possession using the accelerated possession procedure as far as you know?

Customer:

Yes whilst still having section 8 to defend

Joshua :

Thank you

Customer:

Hi Are you still there?

Joshua :

The county court is competent to deal with a possession application and there is no basis that this is transferred to the High Court.

Joshua :

If you have sought possession under the s21 notice that has been validly served, providing the deposit has been protected within the 30 day period required, there is no longer a fixed term of the tenancy existing and the dates given on the s21 notice are correct there is no defence available to the tenant and the court must award possession to you.

Joshua :

If the tenant still refuses to leave, then you will have to instruct bailiffs. County Court bailiffs can take some time and so many landlords find it expedient to apply to the court to transfer the warrant to the High Court - this is simply so that High Court enforcement officers can be instructed instead and does not require a further additional hearing.

Joshua :

High Court enforcement officers will typically enforce a warrant for possession much faster than county court bailiffs so it is worth considering once an order for possession is secured.

Customer:

Even when the tenant has counter claims re section 8 ? What if what we say and what tenant says differ we say we tried and he says we didn't? We have a log of all attempts? Will the county court have time to review details?

Joshua :

The accelerated possession procedure under a valid s21 notice is an entirely separate mechanism from a claim for possession under s8. There is no defence available to a tenant under a valid s21 notice and providing the court is satisfied that it is valid it has no choice but to order possession.

Joshua :

A landlord has an absolutely right under s21 Housing Act to recover possession of its property providing he complies with the requirements of the Act as above.

Customer:

But we are going to court on 10th April re section 8, what will happen to that?

Joshua :

s21 accelerated possession does not however deal with rent arrear claims and these will be dealt with separately however possession itself must be given providing the s21 notice is valid if your solicitor has made an application for possession on the basis of the s21 notice.

Customer:

The court date 10th April is 2nd appearance for us to produce deposit info which we have re section 8. With counter claims could section 8 go higher? Can we introduce application for possession on s21 at the same time?

Joshua :

If you have a valid s21 notice your solicitor would presumably be giving consideration to withdrawing the possession claim under s8 and proceeding with a possession claim using s21.

Customer:

We are led to believe we can't do this while section 8 has counter claims

Joshua :

I do not agree this advice. It is possible to withdraw the claim for possession under s8. This will not prevent the financial claims proceeding but it means that you can introduce an application for accelerated possession using your valid s21. This at least will allow you to recover possession.

Joshua :

As above you will still have to deal with the financial claims as you are presently doing but at least as a landlord you will have assurance that you will recover possession under s21

Joshua :

I would also add that if the s21 was prepared for you incorrectly you have the basis of a negligence claim against the agent (if it was the agent that prepared the notice) for any costs you can show you have reasonably incurred owing to the error.

Customer:

I thought section 8 was claim for back rent? What are the chances the financial claims will be directed to higher court?

Joshua :

Obviously before making a decision regarding withdrawal of the possession element of your claim under s8 you will wish to be 100% certain you have a valid s21 notice as above and can show service of the same upon the tenant.

Joshua :

Not quite. To be clear on the differences. s8 allows an application for possession under various grounds, the most common of which are breach of tenancy and late payment of rent. The problem with s8 claims is that unless you can prove 8 weeks or more of arrears the court has discretion as to whether to award possession and usually exercises this in favour of the tenant on the first offence at least. This means the tenant can claim disrepair and other breaches on the landlords part to bring the rent down to less than 8 weeks to allow for the courts discretion. This is usually all too easy for a tenant with access to legal help.

Joshua :

s21 on the other hand provides for an absolutely right to recover possession. There is no defence available to the tenant other than showing that the s21 is invalid or was not served on the tenant. Notwithstanding this, there is no defence and therefore s21 usually provides a landlord a much better apporach to recovering possession. s21 does not provide for recovery of late rent or other financial disputes. Therefore the landlord or tenant must issue a separate claim for monies in court which is played out quite separately to the possession application.

Joshua :

Hence if you are concerned that you may not recover possession using s8 you can consider withdrawing the possession claim (this does not impact the financial disputes which will continue to play out) and replacing it with a s21 accelerated possession claim as above.

Customer:

Last question which is specifically about possibility of counter claim part of s8 going to higher court

Joshua :

It is possible for the tenant to seek a transfer to a higher track which allows greater scope for costs to be claimed. This is determined on all the facts. However unless the disrepair claims run into significant thousands - e.g. circa £10K+ there is little basis for such a request and any request to do so can be met with counter arguments that the value of the claim is being artifically inflated (if this is the case) and that costs are having a disproportionate impact on you as landlord.

Joshua :

Claimant solicitors will often push for allocation to higher tracks because of the Scope it allows them to claim additional costs but such requests should be resisted by the defendant and can normally be so where the requests are inappropriate.

Customer:

Thank You

Customer:

The defendant is on legal aid

Joshua :

Based on what you say I believe there is the possibility that you may have been poorly represented by your agent if they have mishandled the preparation of a s21 notice and then subsequently advised you to launch a s8 claim against a low income tenant. It is not for me to judge but consideration should have at least been given to reserving the s21 notice correctly and delaying an accelerated possession claim until it was safe to do so rather than launching a s8 claim. It may be that there are good explanations for these issues, but if not there is an opportunity to look at whether you have a claim for negligence available against any party that has let you down in this respect.

Joshua :

I mention the above just for completeness.

Joshua :

If you believe you do you can make a complaint to the agent and if not satisified with their response ask for details of their dispute resolution service which by law they must now be a part of. They have the power to award compensation where they agree there has been negligence. There is no fee for the property dispute resolution service.

Joshua :

Does the above answer all your questions or is there anything I can clarify or help you with any further?

Customer:

You have answered them all. Thank you

Joshua :

A pleasure. I hope you are able to make some progress using some of the above options

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 and other Law Specialists are ready to help you