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Remus2004, Barrister
Category: Property Law
Satisfied Customers: 71154
Experience:  Over 5 years in practice.
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A tenant has paid top up rent in advance. Does this affect

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A tenant has paid top up rent in advance. Does this affect ability to serve notice to quit?
Thank you for your question. My name is XXXXX XXXXX I will try to help with this.

-Could you explain your situation a little more?

Customer: replied 4 years ago.
I have a property that I rent out. The tenant is entitled to housing benefit but is required to pay a top up amount each month because housing benefit falls short. She was 4 months in arrears and following a notice to quit letter offered to pay to bring this up to date as well as 2 months top up rent in advance. The relationship has deteriorated further and a notice to quit was served. She said she will not vacate the property because she paid this top up rent and therefore is entitled to stay. Is this the case?? What is my legal position??
Is this an assured shorthold tenancy agreement?
Customer: replied 4 years ago.
The agreement is fixed for 1 year. Due to expire August 2014

So is this an AST?
Customer: replied 4 years ago.
Have you served a S8 notice citing certain grounds?

Probably ground 8?

Have you also cited grounds 10 and 11?
Customer: replied 4 years ago.
I want to know if notice to quit which I have issued as per the terms of the signed contract is valid. She paid top up rent in advance as a gesture of goodwill to try to repair the relationship. Notice to quit has been served. She said legally she can stay in the property until the advance payment expires. Is this the case? Does advance payment of top up rent overrule a contract?
Would it be possible to give me the information I asked for?
Customer: replied 4 years ago.
I haven't cited any grounds. I issued notice to quit as per my tenancy agreement with the tenant. Do you have the answer I am looking for? It's quite simple: she paid top up rent in advance - does this give her a legal right to stay in the property??
Well, not particularly but the problem that you have is that you have no right to terminate if this is an AST.

If you mean that you have just served a S21 notice or another document purporting to be a S21 notice then that is all very well but would not bring about an end to this agreement until August 2014.

If she was more than two months in arrears of the total rent then you could have tried to bring the AST to an end by serving a S8 notice upon her citing grounds 8 but she has cleared the arrears so that falls away.

If this an AST then you cannot bring it to an end at any time and neither can she. You are both locked in until the end unless you can show breaches contrary to S8.

You may still be able to do that if you cite grounds 10 which covers erratic payments of rent but that is not a mandatory ground and you take a risk if you seek possession on that basis.

I'm sorry this isn't the answer you wanted but it is the position that you face and I have a duty to inform you truthfully.

Hope this helps. Please let me know if you need more information.

Customer: replied 4 years ago.
Jo, I must be honest I have little knowledge of law but, I have a contract with this tenant which states, among other things that either party can terminate the contract giving a minimum of 28 days notice. I gave 28 days notice. The tenant has paid the shortfall between housing benefit and total rent for April. What I wanted to know was, can she legally stay in my property even though I have given her the notice to quit?? I am in Northern Ireland perhaps our laws are different.
If this is an AST then you cannot normally break the contract save for fixed break clauses.

It may be that this is a periodic agreement but thats not what you said above. Even then you would have to give two months notice and end it by a formal S21 notice.

The jurisdiction of norther ireland is the same on this point.
Customer: replied 4 years ago.
It must not be an AST because there is a clause in the contract which states for any reason either party can terminate the lease giving 28 days notice. The question remains: because she has paid the top up rent for April already does this alone entitle her to remain in the property?? Notice to quit was served 27 days ago which means from tomorrow she remains in my property illegally as far as the terms of the contract are concerned. She said she will not leave based on the fact that she paid the top up portion of rent for April and therefore is legally entitled to stay. Perhaps I am not making myself clear but I do not know how else to explain it. Notice to quit was served, legally yet she remains in the property.
If its a periodic then you can give notice whether she has paid or not although if she has overpaid then that must be returned to her.

She cannot just secure the property forever by paying in advance.
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