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Can someone help me on eviction law?(6 Posts)
I posted this in AIBU but I would really like some solid legal advice. The AIBU was about the morality of my LL's actions so I have edited out the heartstring-tugging details - but something one of the posters said gave me a glimmer of hope.
The situation is that I live in a house with a separate flat in the basement. The house is four floors and the flat is just half of the basement, so our rent is a lot more than his. The LL wants to sell the house (as one sale inc basement obviously - it has never been properly separated and uses the same utilities, hot water tank etc).
The sale has been rumbling on for a while, with two sales falling through. Towards the end of the last sale he gave my downstairs neighbour 2 months notice to leave on January 4th. This sale subsequently fell through in the new year. We didn't get given notice (because he doesn't want to lose our rent).
So, January 4th comes and goes, my neighbour is in a right state because he is 70, not in great health, has no internet access, hasn't found anywhere. He has packed up lots of his stuff but he is still there, having nowhere else to go. LL came to visit him with his DSIS and they 'find' him a potential flat online, he said he didn't like it and didn't want to move there. So they said, right, you've known for ages the house was being sold, you've had plenty of time and you're not willing to look at the options we show you. They started legal action to evict him and have told him he could end up paying 2k in legal fees and have his possessions repossessed. He is now walking around like a wreck.
Now the flat is on the open market. We haven't been given notice and our rent day is the 24th, so, if I've got this right the earliest we can be obliged to leave will now be April 24th. We have no problem with this and can find somewhere else.
The LL and his sister returned his last rent cheque uncashed, presumably on legal advice.
A poster on the other thread thought it might be worth posting here, in case there is anything amiss. I would like to ask my LL to give him a bit of a break, particularly since we have been allowing viewings which we would be within our rights to refuse.
What kind of tenancy does he have? It's hard to advise without knowing this.
The best people to call are Shelter. They can advise on his rights but will need details of his tenancy agreement to do so.
I'm not sure if the 'notice to leave' was even legal. It would help to know if he has a fixed term tenancy with or without a break clause or a rolling one.
If it's a fixed-term agreement with no break clause he is entitled to stay until the end of it. He can be evicted if he fails to pay rent but he didn't - I hope he still has the cheque.
If he has a rolling tenancy he can be asked to leave with two months' notice but someone should check the paperwork: if it was correctly drafted and served. Courts expect procedure to be followed exactly and it may well not have been.
It's a rolling tenancy. I'm sure the notice was legal. I just wondered, if they start legal action to get him out, can he really end up paying legal costs? And can they be 2k?
I agree - Shelter. Landlords have to be incredibly careful about eviction and telling an old man he could pay 2K in legal fees and lose his possessions is likely to bite them badly on the arse.
But to be clear, you rent the house except half the basement, and the other tenant rents half the basement? But does not have separate utilities, who pays his bills? (Or yours for that matter).
That's right. It's a big house and there is an interconnecting door in the basement. The back half (leading to the garden) is ours and the front half is a one-bed flat which is rented by my neighbour. It never got split out properly so the utilities are for the whole house. The meters are in his flat so he gives me a reading, I get the bills in (obvs I have already paid on direct debit as they are all in my name) and then have to ask him for a 20% contribution. It's quite bizarre, we didn't know about it till after we moved in. I know how honest he is because of the way he deals with the bills, i.e. I always try to make his a bit less but he insists on it all being by the book.
I second calling Shelter- they have a Legal Aid contract and providing he qualifies financially for LA, he'll be able to get ongoing advice and representation from one of their advisers if they have capacity to take the case on. They're great though, and will seek somewhere else out to advise him if not. This will be particularly helpful if he make a homeless application, as local authorities are notoriously good at 'gatekeeping' and refusing assistance even where there would be a legal duty to re-house.
However, I hope I can offer some reassurance to you about this (I'm a legal adviser working specifically in this area of law, though not for Shelter).
Based on what you've described, he'll have an assured shorthold tenancy and you've already said he's on a rolling contract. The landlord must show that they have served him with two month's written notice of their intention to seek possession. This notice will be valid providing they have given at least two months notice and (depending on whether he moved in after 2007 or not) they protected any deposit paid in a government- backed scheme and served him with the basic prescribed information about where the deposit is registered etc within 30 days of receiving the money. No need any longer, on a rolling contract, for the notice seeking possession to end on a specific day of the month (after a case in 2013 changed this).
Landlord must get an outright order for possession from the county court, then a Warrant Of Possession (bailiff's warrant) in order to lawfully seek possession. All applications will be considered by a District Judge, either on paper or at a hearing, and unsurprisingly, if they notice any problems they're likely to dismiss outright, or arrange a hearing on the matter. Better if your neighbour has a legal adviser from Shelter to pick up on any problems nice and early though- can't always rely on the court, and mistakes do sometimes get overlooked, particularly on paper applications for possession.
Realistically, the landlord could accrue legal fees of £2000 but this is SO unlikely. For fees that high in a straight forward case like this, they would have to be hiring a barrister. It is a District Judge who decides whether the fees proposed by the claimant landlord are 'reasonable' and hiring a barrister, or even a senior solicitor, for this type of case would likely be considered completely disproportionate in the circumstances, so would be disallowed, not necessarily in full though.
If, however, there was a potential defence to the proceedings (for example, the notice is invalid, the deposit wasn't protected) then costs could be higher as there'd be at least one hearing at court. This doesn't mean he'd end up paying them all though. Shelter would be able to give advice upon consideration of his circumstances as to any likely defence, and could undertake court work if there was. They could dispute excessive legal costs.
If a landlord hires a solicitor to undertake the work for them, you'd usually expect to see the average possession case like this costing around £400- £600. He can request the court allows him to pay it by installment, but this will means he gets a CCJ, which will affect his credit rating, against his name.
The reason the landlord hasn't accepted rent (they've definitely had legal advice!) is because they don't want any potential defence raised that they've accepted money and inadvertently created a new tenancy for him. They can charge 'mesne (pronounced 'mean') profits' which would secure them on this though- a way to get their rent money from him without the argument re: creating another tenancy.
More than happy to give you further housing advice if you would like- but he must get proper advice. It is so important in these cases to have a legal professional consider his specific circumstances- I can only ever be general.
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