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Matt Jones
Matt Jones, Solicitor
Category: Law
Satisfied Customers: 671
Experience:  I am a qualified and practising Solicitor with over 7 years post qualification experience
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We are evicting a tenant who has fallen deeply into arrears

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We are evicting a tenant who has fallen deeply into arrears with her rent. We obtained a possession order, which she failed to adhere to, we applied to move for High Court Enforcement, and we had a writ sealed correctly. The HCEO came today and tried to evict her. Two police officers came, followed by two more female officers to force the issue. She used every delaying tactic she could find and called her lawyer (at Shelter) who advised her to get into bed and refuse to move. At the very last minute he produced a notice from the District court stating that they had suspended the possession order pending a hearing next month. Reading the detail of the request it centres around the fact that the tenant is mentally disabled, and there's a report from a GP claiming that she does not have the capacity to understand everything presented to her. This, of course, is rubbish in our mind, and in the minds of all who attended, as she proceeded to quote laws and regulations at us as to why she wasn't going to leave. The HCEO obviously left and said that whilst he knows that she is perfectly capable, the application made the court supercedes the writ. The defence also stated that she is up to date with her rent and that she can prove it. We have bank statements showing the opposite. She presents with threatening behaviour (she was arrested last month for assaulting a police officer), and has continued to threaten legal action against us for supposed harassment - although her allegations are totally baseless. I'm now concerned that we'll lose another month's rent (she's already in arrears for more than £2500), and we're really struggling to make ends meet. We've been advised to find a solicitor, but i don't really want to wait for a hearing next month. Given that her solicitor got an emergency hearing (without us even knowing it was taking place), is there an avenue for us to do the same? Or something similar? Do we have any other course of action available? What do we do as landlords? We've done everything by the book, and she's finding all the loopholes and processes that work in her favour - it feels grossly unfair.
Hi I will try and help.
Has the Court actually set the hearing down for a date? And is this to simply hear her application in more detail?
Also did the Tenant attend the first hearing where the possession order was granted?
Customer: replied 2 years ago.
The order states IT IS ORDERED THAT1)The Defendant’s application be listed for hearing on 12October2015 at 9.3Oam at the County Court at Colchester, Falkland House,25 Southway,Colchester,Essex C033EG with a time estimate of 15 minutes.2)The Claimant’s application for a writ of possession and control is suspended pending the hearing of the Defendant’s application.She didn't attend the first hearing - apparently due to disability. Again, the notice we received stated:The defendant did not attend the hearing, there is a good reason the defendant did not attend the hearing she was delayed because of her disabilities, prompt action has been taken, The defendant arrived later in the morning of her hearing and immediately instructed the duty advocate. Subsequent to this delay has been caused only by the need to findevidence about the client’s mental capacity, a litigation friend and to secure public funding.
Thanks. Firstly I understand the frustrations that you are going through, and many of my clients have felt the same. However you have to appreciate what the Court is being asked to do. They are making a person homeless, and whilst this is of course your property the Court has to allow due process to be followed. The application that has been made sounds like an ex parte application without notice. This can only happen where there are good reasons and the Court feels that it would be interests of justice. I appreciate that the issue of the "medical reasons" can feel fabricated but the Judge can only make the decision on this once he is presented with the evidence. My advice would be to prepare for the hearing (there is simply no way of getting round this and making any application of your own, save, for example, possibly if someone life is in danger) ( continue I am just posting to show you I am working on this)......
Actually, a further question was the original possession order made as a result of a section 21 application or section 8 application?
Customer: replied 2 years ago.
Thanks for the help Matt - really appreciate it.The possession order was as a result of a section 8. She was 8 weeks in arrears with no plans to pay. She still hasn't paid, and arrears are mounting. She claims that she has paid, and she hasn't. We think she's told her solicitor that she's paid in cash - we made it clear originally that we don't accept cash because we were concerned that we'd get into this very situation where it's her word against ours.
Customer: replied 2 years ago.
If it's any help, i've attached the paperwork we've received today.
That does help a lot. I have grave concerns of what may happen at the hearing. I can see why the judge has made the order. I think he/she simply had no choice. She has a doctors certificate that she has a mental illness. Again, I am sympathetic to your situation, but without a Doctors report to the contrary the judge would simply have been saying that he was rejecting the doctors opinion, not something he would likely do if he didn't want all his judgement appealing! Unless you have done the section 8 application spot on (and if you have done this without assistance there is a chance as I have seen may errors in applications myself) there is a real danger that the solicitor may point any major flaws out and effectively simply press the reset button on proceedings. Clearly if she is mentally incapacitated then she is better in local authority housing than private, but I am not sure at this stage how this will play out to get to that juncture. I would strongly suggest employing a solicitor who knows what he/she is doing to perhaps get the strongest defence of their application together (perhaps even getting your own independent metal expert assessment - although this will be costly unfortunately),and if necessary,and if things look like they may go worse, then negotiating something with the other side (i.e. allowing her to stay while other accommodation is sorted with the council for example). You have to tread carefully so that there isn't the double issue of unpaid rent, and possible her costs to pay in the event that a judgement goes against to you.
I am sorry,and I don't mean to sound bleak, but I want to make sure you are as informed as possible. I cant always give the advice people want or prefer to hear but hopefully I have helped
Customer: replied 2 years ago.
Why would a judgement go against us? I just can't see how they would agree that she can continue to live rent free despite being in arrears? I mean, how are we supposed to assess mental capacity of a prospective tenant when they move in? I'm nervous that the judge might throw out all the reasonable evidence we have (unpaid rent, threatening emails and harassment, prior convictions for assault) because of a largely fabricated mental issue.
It is difficult for me to fully assess the case without being fully involved, however they have asked the judge, in their application to, "set aside or vary the order". Your original application will be looked at as will all other matters. If the judge finds that she didn't have the mental capacity to understand the proceedings, and there was something in he proceedings that, had she understood or been able to take advice on it would have meant the judgement would not have been made there is a chance the possession order may be set aside or varied. This is by no means certain of course and may simply be a delaying exercise. To be positive about things, in my experience the road to get a tenant out may vary in length and amount of bumps along the way,it is usually a question of "when" not "if" the tenant leave. It is just a case of perseverance and getting the right advice in the proceedings (I appreciate that this is your money we are taking about and I am not being flippant, but this is generally the case)
Customer: replied 2 years ago.
Thanks Matt - appreciate the advice. Can't help but feel like this whole process is weighted so strongly in the favour of the tenant. Interesting that the HCEO told us that he saw her run across the windows on the first floor before entering the property, and when he arrived she was "pretending" to be asleep. The police who attended were the same officers who arrested her before, they walked in and she played the disabled card by immediately stopping mid sentence (she was telling the HCEO what her rights were and quoting legislation) and feigning such a sever disability that she couldn't even articulate words. However, they had seen her before, made her aware that they knew it was an act and she was soon shouting about what she was entitled to. It bothers me that she's well enough to assault a police officer, but now she's not capable of understanding that if she doesn't pay she can't stay. Incidentally, when we asked her to sign the AST contract, she requested a number of changes to the specifics of the contract - apparently to help with a benefit claim. Someone who's that uncertain of information surely can't specify changes in language of legal documents?What sort of evidence do you think we need to present a strong case? Is there anything you can suggest? I'll be looking at calling solicitors on Monday obviously, but there's nothing to gain by going into the court and speaking to the clerk on Monday? there are no forms or applications to expedite things?Another thought I had was that her AST runs out in November. I believe (correct me if i'm wrong) that we can evict under Section 21 when the 6 months is up. That being the case, do you think there's any merit in talking to the other side and suggesting that if rent is paid in full she can see out the 6 months and then leave? Or are we likely to have to go through this all again at that point?
It certainly sound like someone who has at least a degree of control of her faculties, but I am not a doctor and so it is a case of fighting fire with fire regarding this with another medical report which would hopeful say she was malingering. Interesting to note the Dr who signed the certificate appears to be a GP (i could be wrong as there are little credentials) He has the ability to sign the certificate but is not an expert and so it would need to be put to the court that she is properly assessed by a consultant. As to your questions:-Someone who's that uncertain of information surely can't specify changes in language of legal documents? It could be she has lost capacity over timeWhat sort of evidence do you think we need to present a strong case? Ideally witness evidence of her actions from independent people, and medical evidence of you can get itIs there anything you can suggest? As aboveI'll be looking at calling solicitors on Monday obviously, but there's nothing to gain by going into the court and speaking to the clerk on Monday? No. there is nothing more than can be done before the hearing I am afraid and I would suggest putting all of your efforts and resources into this there are no forms or applications to expedite things? as aboveAnother thought I had was that her AST runs out in November. I believe (correct me if i'm wrong) that we can evict under Section 21 when the 6 months is up. That being the case, do you think there's any merit in talking to the other side and suggesting that if rent is paid in full she can see out the 6 months and then leave? Or are we likely to have to go through this all again at that point? I think this could be the basis of an agreement. You can of course serve the s21 notice, and you are not a charity so are entitled to your property back at some point, but If she lacks mental capacity then you will need to serve this on her legal guardian and so it is better to get the hearing over with to see where you are with this before serving further notices I would suggest
Customer: replied 2 years ago.
Interestingly, i went back to the original email she sent when replying to our advert. She says she has a mood disorder and that she has depression, not anything about a mental disability, which she is now claiming. Interestingly, the email doesn't read like someone incapable of understanding what's going on. Email attached for reference
Well that will certainty form part of your evidence and need to be presented to the judge for consideration as part of your witness statement
Customer: replied 2 years ago.
Given that, is there any grounds to state that she failed to disclose a mental illness? Or would they likely assess that this could have deteriorated since this was written?
It could go either way really. The letter seems quite frank, and so could be evidence that she is either trying it on now, or that she informed you of the current condition, but this has deteriorated. This is another for a medical expert really to see if the fact stack up
Customer: replied 2 years ago.
Ok, so it sounds like there are two elements to this case. Firstly the rent - she hasn't paid so i'm not sure how that will be dealt with. It sounds like the supposed disability (which is the second element) takes precedence over the lack of payment, and swings things in her favour. That being the case, it sounds like we might be asked to prove that we think she's not as disabled as she suggests she is. This feels like something far too involved for a simple rent dispute!As i said, i'll seek out a solicitor, but do you think the foundation of the case is proving her sanity? Or should we be focusing on the non-payment aspect? I feel really lost here, as i've said i've gone through all the steps, and worked my backside off to afford this property, and now i'm stressed, in debt and on the verge of having to sell because of her. The other tenant has said he can't live with her behaviour and threats/harassment so is moving out, so she's got a record of this. Feels grossly unfair to landlords - there's little doubt she'll do this at the next place she ends up, and live rent free, bouncing around.
As I said I do appreciate your frustrations. I think that what will probably happen at the hearing is that the judge will set down directions. i.e. report on mental capacity provided by X date, details of rent payments on X date, and so on. Nothing will probably be decided at the hearing as it is only 15 min long. They are the applicant though and so they have got the work to persuade the judge rather than the other way round, but you should get witness evidence and payment evidence ready in advance with the help of your solicitor.
Hopefully i have helped. if so please leave me positive feedback so I can be paid for my time tonight. The question wont close and if you wish to post further question later down the line on this subject then you may. Good luck with everything!
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