quick tenancy question

[MOSagain]

Not my area of law so hoping someone can quickly advise.

Tenants are due to pay on 1st of the month. For the past few months payment has been received on or around 5th of month. Not received this month so DH phoned agents who said tenants paid by cheque to them on 6th June and not yet cleared

Looking at the contract quickly (just on way out) it seems very vague on how to give notice to get them out and how much notice to give them. We have a few concerns as it now appears that the agents knew that they were a bad credit risk and had asked them to pay 6 months rent up front when they first moved in. That was 9 months ago and since then they have been paying monthly and it is getting later and later.

Anyone?

What kind of tenancy is it? Presumably an assured shorthold but for a fixed term of say 6 or 12 months?

If it is for six months they are now on a rolling monthly periodic assured tenancy which can be terminated by a section 21 notice (giving two full months notice ending on a rental date - so if you gave it tomorrow, it would end on 31st August/1st September depending what the contract says. You would then have to issue accellerated possession proceedings.

If it is a 12 month tenancy, whilst you can serve a s21, whether you can issue proceedings will depend on the terms, normally you cannot until the fix term is up but in any event you can serve a section 8 Notice on Ground 11, which is persistent and late payment of rent.

The differences between the two proceedings are that a s21 notice possession (unless you are a local authority or housing association) will normally be granted on the papers without a hearing within a fairly short space of time of the proceedings being issued (you can issue proceedings on expiry of the notice)

If you issue proceedings on a section 8 notice, on Ground 11 - the court will have to find that there was persistent late payment AND it is reasonable to make an order - it is discretionary so you would have to explain why late payment causes you problems, especially if it is received within short order and there are no actual arrears accruing. You have to wait two weeks between serving the section 8 notice and issuing proceedings, and the court will not list the hearing for at least 28 days. There is an actual hearing and you would have to go to court to argue your case.

See landlordzone.co.uk for more advice and have a look at the CPR Rule 55

I'd probably serve both a s21 notice to expire at the right time (either 31.08/01/09 or end of the tenancy if a 12 month on) AND a section 8 Notice citing Ground 11 and see what they do.

HTH

Thanks YesMaam, you are a star
Yes, it is an assured shorthold tenancy. It was initially for 6 months so like you say, will now be a rolling monthly one.

Will see what agents have to say this morning and will then decide how to proceed. Not sure if we are more pissed off with the tenants or the agents for not telling us there was a problem with late payment and that they were a bad credit risk

My pleasure hope it gets sorted. The section 21 route is the best way to go as Judges have no discretion but to grant an order if it is proceedurally correct. The usual order is 14 days possession (then you can apply for a bailiff appointment which will take 2-6weeks) but they can argue for up to 6 weeks if there is hardship.

If you do end up going to court it is worth enquiring with the bailiff's office how long it is taking to get an appointment so you can say to the Judge that whatever date he/she gives for possession will be extended by X weeks for the bailiff and thus keep the date for possession asap.

One thing i need to correct is that they are on a rolling periodic (monthly) assured shorthold tenancy.

Thanks again YesMaam, very helpful.
Have communicated with agents today and expressed my displeasure I am pretty annoyed with them as they admit that the tenants have paid late every month and that in May they paid in two installments 5 and 9 days late and June paid over a week late by cheque. They have apparently had 'stern words' with them and hopefully this will be the kick up the arse they need. Seemingly they 'forgot' to pay it the last few months hence the late payment. They have promised to set up a SO and pay on 1st month in future.

I've told agents I want to go down and inspect the property next week and will see how I feel then. I'm just annoyed as we let them have it a lot cheaper than the going rate as we were assured they'd be good tenants (retired couple no pets etc) and they seem to be mucking us around.

Serve the notices anyway, you don't have to act on them.

I rented out a property once and I had tenants exactly the same, persistently late (although seemingly they were perfectly able to afford their Sky tv and chinese takeaway every night according to our old neighbours!) and I served them a section 21 and a section 8 notice, then they decided to leave and I got much nicer and better paying tenants!

And don't discount it, get what you are entitled to.

Thanks again for your advice. I exchanged a few text messages with neighbour last night (property not local) and she said they would not want to be going anywhere as they have a of stuff and he has apparently just lost his licence anyway so can't drive. It seems that they have a lot of things stored under the large car port and she said they've built a large shed in the garden (not sure how that works, presumably they have to take it when they go?) I'm a little worried that our (new) furniture might be in the car port/shed as they wanted it unfurnished as had all their own stuff. I think DS and I will be making a trip down next week. Just waiting to hear back from agents. Oh, and want to put rent up, how much notice do we give? I was thinking from October once they've been there a year.

I thought it was a safe bet renting to old people. Will probably find when we get them out that the places stinks of p*