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: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
35043042
Type Your Law Question Here...
Joshua is online now

Can you take me through the process eviction? I've

Resolved Question:

Can you take me through the process for tenant eviction?
I've issued a section 8 but they are still there - what next?
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 years ago.
Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience. Could you tell me if the fixed term of the tenancy has yet expired please?How far behind with rent is the tenant?Have you also served a s21 notice?
Customer: replied 2 years ago.

As you know, my former friend dealt with all tenancies, but my understanding is yes it has expired.

I served a section 21 on 24/10/2014.

Section 8 was served 14/03/2015.

Expert:  Joshua replied 2 years ago.
Thanks. So this is the same property as we discussed before? Presumably I am right in my assumption that your friend has the tenancy agreement assuming one was prepared and he will not supply it to you? If not will he give it to you do you think?Do you know roughly when the present tenant moved in?Did you serve a s21(1)b notice or a s21(4)a notice?What date did you give in the s21 notice for vacating the property?How many months behind is the tenant with the rent?Has the tenants deposit (if any) been protected?
Customer: replied 2 years ago.

Yes same property. I would have to assume that I won't be able to get it.

I think they've been there at least 3 years.

It was a 21(1)b.

Date was specified as 28/03/2015.

On rent they were told to pay me form October 2014 (before that my friend was taking payment). They paid me in October but nothing since. My friend claims they haven't paid him either (although I cant corroborate this).

The tenancy agreement I've seen for one of the other flats in the same building, makes mention to the fact that the deposit will be protected. I assume it is the same for them, but again I can't corroborate.

Expert:  Joshua replied 2 years ago.
Thanks. Clearly for future tenancies your friend needs to be cut out of the picture as his lack of cooperation is placing you in a very difficult position though I'm sure you have already come to this conclusion yourself.Unless the tenancy has Been renewed, all was granted for a very long term, I would assume if they have been there for three years that the fixed term of the tenancy agreement has expired and that the tenancy agreement is operating as a periodic tenancy on a month-to-month basis. If this is the case, unfortunately, the wrong section 21 notice has been used as the correct notice that should have been served is a s21(4)a notice. S21(1)b is for tenancies still in their fixed term. In terms of how you may wish to proceed. If you decide to proceed under the s8 notice you have issued you can regardless of the possibile invalidity of the s21 notice. If so then the simplest way to issue a claim for possession under s8 is using the possession online service. (https://www.possessionclaim.gov.uk/pcol/). Alternatively you can issue on paper. To issue on paper you will need forms N5 and N119http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=608http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=347However before you do this do consdier the potential pitfalls of s8 possession claims. The tenant can counterclaim for disrepair claims if there are any - even where you do not consider there are any. This is the favoured tactic of housing lawyers and it is comparatively easy for a good housing lawyer to hold up your possession claim for months and obtain reports that evidence disrepar issues and seek compensation for the tenant to offset rent arrears. It will not always succeed but it is a risk. If the net rent owed can be offset to less than 8 weeks in total net of any claimed disrepair claims, the court is unlikely to award possession and you can find yourself defending disrepair actions. If the tenant is on benefits he will normally have access to legal help for a lawyer to represent him. If he is not then he will not likely retain a lawyer due to cost.For this reason many landlords prefer to serve s21 notice in these circumstances and then proceed with possession after the notice has expired because there is no defence to a valid s21 notice. Obvious downsides are that you may have to reserve a fresh valid s21 notice before you can issue possession proceedings and thenwait for at least two months for the notice to expire before you issue proceedings but at least he is guaranteed possession following expiry of the notice rather than having to wait for a court hearing under s8 and risk disrepair claims. You would need to check that the deposit if paid has been registered though otherwise you cannot serve a s21 notice validly. You can search the deposit services online using the following link:https://www.gov.uk/tenancy-deposit-protection/overview If the principal decides on a s21 aproach then a valid s21 notice will need to be served and then possession can be applied for using forms N5 (above) and and N215. You cannot use accelerated possession without a copy of the tenancy agreement.hmctsformfinder.justice.gov.uk/courtfinder/forms/n215-eng.pdf finally, in respect of your friends, and you can demonstrate that he was acting as your agent in practice, you may consider advising him that his failure to cooperate in respect of providing documentation is a breach of his fiduciary duties to you both as agent and trustee and he reserve the right to claim against him costs and losses incurred as a result of his breaches of duty and negligence. Keep a copy of this email or letter and you may wish to consider issuing proceedings to recover monies you lose from him once the dust settles. I hope the above is of assistance? If you have no further questions for now I should be very grateful if you would kindly take a moment to click to rate my service to you today or reply back just to let me know if the above is helpful. Your feedback is important to me. If there is anything else I can help with please reply back to me though.
Customer: replied 2 years ago.

Thanks Joshua.

My belief is that the tenancy agreements were renewed every year, and as such the correct section 21 was served.

Best course of action to get them out quickest?

I'm looking for your opinion here, rather than legal advice.

Expert:  Joshua replied 2 years ago.
If you have served the s21 during a fixed term then you are right that the s21(1)b notice is correct.Ideally you would be able to obtain documention - in particular the tenancy agreement and confirmation of the deposit protection from your (ex?)friend then you can simply use the accelerated possession procedure which normally does not require a hearing.If this is not possible, then if you are content that the property is in good repair and the tenant is not likely to be able to claim and disrepair issues then you might decide to proceed under s8 notice because this overcomes some of the unknowns in terms of is the s21 notice valid or not. You could consider issuing online. You can also recover rent arrears under the same action which is convenient. Also becuase you do not have the tenancy agreement you will have to have a hearing anyway so this is not likely to take any longer than issuing possession using the s21 notice. So this is likely to be the superior option subjectto the disrepair caveat above. If you are concerned about disrepair then s8 can be frustrated as discussed above and in these circumstances s21 may be the better way to go if you belive the tenant could claim sufficient disrepair to offset agaisnt the rent to bring it to less than 8 weeks of arrears in total. However subject to this s21 is probably less attractive than s8 becuase if you do find that the wrong notice has been issued because the tenancy was not renewed, the tenant could get your claim thrown out. So for me (and this is just my personal view based on what you say above) if I was confident about disrepair and could not get documents from your friend I would probably opt for s8 possession claim here. Does the above answer all your questions or is there anything I can clarify or help you with any further?
Customer: replied 2 years ago.

That's fine, thanks Joshua.

My thinking is that if there is any disrepair, they have not communicated it, and having been there for over 3 years, its reasonable to assume the property is not in perfect order anyway.

Expert:  Joshua replied 2 years ago.
You can certainly make these arguments as defences if they raise the issue of disrepair but the difficulty is the judge will make determinations on what disrepair if any he is prepared to admit having considered initially the evidence the tenant can show of disrepair and then hearing your defences to that evidence. Therefore whether or not disrepair will frustrate your claim can depend very much upon the judges determination. If the tenant is not on benefits he is unlikely to have a lawyer though which means that such claims are less of a risk than they are with DSS tenants. In any event unless they can show dispair that amountst to sufficient to reduce the rent arrears net of disrepair to less than 8 weeks they must be ordered to leave by the court.Is there anything else I can help you with?
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
Joshua and other Law Specialists are ready to help you
Customer: replied 2 years ago.

that's everything. thanks again.

Expert:  Joshua replied 2 years ago.
A pleasure. I hope all goes well. If I can assist any further as the situation develops please do not hesitate to revert to meI should be very grateful if you would kindly take a moment to rate my service if you have no further questions for now.Best wishes

What Customers are Saying:

 
 
 
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
< Previous | Next >
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
  • A quick response, a succinct and helpful answer in simple English. I believe I can now confront the counter party with confidence -- worth the 30 bucks! Rick
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C.
  • This expert is wonderful. They truly know what they are talking about, and they actually care about you. They really helped put my nerves at ease. Thank you so much!!!! Alex
  • Thank you for all your help. It is nice to know that this service is here for people like myself, who need answers fast and are not sure who to consult. GP
  • I couldn't be more satisfied! This is the site I will always come to when I need a second opinion. Justin
  • Just let me say that this encounter has been entirely professional and most helpful. I liked that I could ask additional questions and get answered in a very short turn around. Esther
 
 
 

Meet The Experts:

 
 
 
  • Jo C.

    Jo C.

    Barrister

    Satisfied Customers:

    30316
    Over 5 years in practice
< Previous | Next >
  • http://ww2.justanswer.co.uk/uploads/EM/emus/2015-7-7_192327_bigstockportraitofconfidentfemale.64x64.jpg Jo C.'s Avatar

    Jo C.

    Barrister

    Satisfied Customers:

    30316
    Over 5 years in practice
  • http://ww2.justanswer.co.uk/uploads/BE/benjones/2015-12-1_0437_ennew.64x64.jpg Ben Jones's Avatar

    Ben Jones

    UK Lawyer

    Satisfied Customers:

    11553
    Qualified Solicitor - Please start your question with 'For Ben Jones'
  • http://ww2.justanswer.co.uk/uploads/BU/Buachaill/2012-5-25_211156_barrister5.64x64.jpg Buachaill's Avatar

    Buachaill

    Barrister

    Satisfied Customers:

    1754
    Barrister 17 years experience
  • http://ww2.justanswer.co.uk/uploads/JO/jojobi/2013-3-19_0265_maxlowryphoto.64x64.jpg Max Lowry's Avatar

    Max Lowry

    Advocate

    Satisfied Customers:

    894
    LLB, 10 years post qualification experience
  • http://ww2.justanswer.co.uk/uploads/UK/UKLawyer/2012-4-12_9849_F2.64x64.jpg UK_Lawyer's Avatar

    UK_Lawyer

    Solicitor

    Satisfied Customers:

    750
    I am a qualified solicitor and an expert in UK law.
  • http://ww2.justanswer.co.uk/uploads/KA/Kasare/kasare.64x64.jpg Kasare's Avatar

    Kasare

    Solicitor

    Satisfied Customers:

    402
    Solicitor, 10 yrs plus experience in civil litigation, employment and family law
  • http://ww2.justanswer.co.uk/uploads/OS/osh/2015-7-7_19268_gettyimagesb.64x64.jpg Joshua's Avatar

    Joshua

    Lawyer

    Satisfied Customers:

    8199
    LL.B (Hons), Higher Prof. Dip. Law & Practice