Rent arrears in Scotland- Any help or word of advice Please!

[res123]

My tenant is in arrears for over three months now. Unfortunately, I have lost the spare key to the flat but the tenant refuses to answer texts, emails, phone calls or open the door when I went to the flat to discuss the matter.

 

I am learning his son lives with him too, who isn't on the lease. The son opened the door once (which I think was by mistake), and started making all sort of stories that he hasn't seen his father and his nervousness gave it away that dad is either inside the house or that the son was covering up for him.

 

I'm really worried, as I am paying mortgage out of pocket and its a hefty one. I told the son that I am going to start the eviction process and he had the guts to tell me that they will claim that they have been paying me cash (which isn't true). They did pay cash only once which was at the beginning of their tenancy. I am not sure if he said that to **** me off or he meant it. I can only imagine that this lot have made up their mind to not pay and play hard ball.

 

I never had to deal with something like this. I have tried going to the flat at various times and posted polite message at the door to return my call, but to no avail.

 

Can someone please provide some guidance on how to deal with this? Arrears are now in the region of £2400.

 

Thanks.

[Bang!]

First - can you confirm they are there on a Short Assured Tenancy, and you have the correct paperwork for this (AT5 and "Intention to form a Short Assured Tenancy)?

 

Have you served them with a "Notice to quit"? These are a pre requisite to evicting a tenant, and many letting agencies actually include one when the property is initially let, to hasten an eviction if its obvious they are being taken for a ride. This saves 40 days of delay if you want someone to leave. If you have not served one, do it now.

 

If the tenants are in receipt of housing benefit, you can contact the local authority after ?4? months of arrears and have it paid directly to you.

 

Sadly if they are lying to you in a confrontational rather than excuse making sense, then you are unlikely to ever see any rent from them if they are paying it themselves, so basically you are now just providing them with free accommodation.

 

Its also in your interest to give them notice you wish to inspect the property (its probably 48 hours notice it states in the tenancy agreement). Send it recorded, and leave over the required period of notice, also text it too. Its likely you will arrive and no one will answer - which again looks better for you once things progress further.

 

Three months rent arrears presented to a Sheriff is mandatory grounds for eviction, but if a small payment is made taking it under that amount it is still discretionary grounds.

 

Lastly, don't worry about their lying about having made cash payments, as if they had they would have obtained a receipt from you, which obviously they cannot show; and landlords don't make money evicting people who pay their rent.

Edited July 11, 2012 by Bang!

[res123]

Thanks for this. Here is something I noticed, the way things are, I don’t see him collecting recorded deliveries or even summons. Essentially, he is going to claim he never received any documents. I’m self managing this flat so have to either do this myself or have a solicitor do it for me. I don’t want to give him any other chances. Here are few more questions, if you don’t mind, please.

The lease initiated in Sep 2011, I believe my lease states that it will continue on a monthly basis. I read it elsewhere on the web that Scottish Short assured tenancy continue for the same period if it’s not ended. I hope that’s not the case as that will give him additional 6 months. Do you know anything about that?

 

I also read that its actually a 60 days notice if there is an AT6 involved (I hope I am mentioning the correct form). If I give him these notices, they must have certain language, can you recommend drafts please and what happens if he doesn’t take recorded delivery and its returned to me? I know he is being selective about what he does and does not collect. It’s apparent to me that he’s going to massage the system to his advantage and unfortunately for me, he is a private paying tenant.

 

This is a bit of a lesson that all private paying tenants are not a good bet and all DSS tenants are not bad bets.

 

Again, thanks for your help. I plan to visit him tomorrow for the last time and serve the notices you mentioned.

[Bang!]

OK - going through what you ask in order...

 

If you are worried about claims something never arrived, you can get a Sheriff's officer to deliver/serve them. I cannot remember the exact price, but I think its about £25, although £17 springs to mind too. Go to a small firm who will respect the work rather than a large one. It also adds weight to your side, and the guy they send will have experience in dealing with this type of issue.

 

However, all that is really needed for a court is your saying it has been delivered or a slip from recorded delivery, but a Sheriff's Officer visiting may encourage them to leave sooner, for not much money.

 

A Short Assured Tenancy runs for six months, and can be renewed the same way it commenced, or continues to run in tacit relocation effectively meaning it runs on the original terms if not renewed/terminated.

 

There are 18 reasons to evict - the first 17 split into mandatory and discretionary grounds. The last is a notice to quit. It always makes sense to issue a NTQ at the first sign of trouble, and if you proceed to court on other grounds that are mandatory (such as three months of arrears), and the tenant makes a payment taking them beneath that amount, then the decision to evict becomes discretionary. This is why a notice to quit makes sense as a back up, although may not seem fitting when there are mandatory grounds for eviction. A NTQ must state a date at least 40 days in advance as the end date for the tenancy.

 

Yes, AT6 is "Intention to apply to the Sheriff for an order of possession", its the correct form, preferably rely on a Sheriff's Officer to serve, as mentioned above.

 

Do you have the form already? It's fairly basic, and goes through each step saying what is required. You have 17 grounds for possession that can be used on the form, and although the more you can include the better, the notice for three months arrears is two weeks not 60 days (the form states 2 months for most mandatory grounds).

 

You are likely to have four grounds for repossession. One mandatory (3 month's arrears) and presumably three discretionary (persistent late payment, some arrears, and failure to abide by Tenancy Agreement - as mentioned previously as its likely they wont let you in for an inspection, but you need to let them fail to do this before including it). I am fairly sure these three fall under 2 weeks notice.

 

DSS tenants have the main downside that the benefits system is unreliable, and a six month wait prior to receiving benefits is not unheard of. Payments can also stop when other benefits change, so the main issue with DSS tenants is rarely the people, and more often government agencies.

 

A few other things that may be of help, although the chance of them going to court is close to zero (unless represented).

 

Get a letter off to them recorded delivery or with proof of posting, stating if they are having financial troubles to speak to the CAB, and ask them if their arrears are caused by housing benefit delays. This adds weight in your favour if they later try to claim this was the problem.

 

Your "key" comment earlier points at your intention to enter the property. In theory you would need a court order for this, although in practise it often happens, but looks bad to a Sheriff if the tenant has not done a runner. It can be used to contribute towards claims of an illegal eviction or harassment, which must be avoided.

 

Lastly, and I am not entirely sure of this, I think there is an option to include a claim for the rent arrears with the hearing to repossess. As you stated the tenant was paying their own rent, then they must have something to supply that money.

 

A decree in Scotland runs for ten years, and you have five years to take it to court, so it may be useful if you suspect they may be able to pay you at some stage in the future.

 

Have a shot at the form now, if there are any sections you need a hand with just ask, and I will look one out to have handy.

[res123]

Hi There: I thought I misplaced my tenancy, but finally found it. The only person named on the tenancy is father who is no where to be found. The guy who opens the door claims to be the son, I can prove or disprove that. He isn't on my tenancy, isn't this trespassing? Can I not get police involved as I have no idea who this guy really is?

 

If not,

 

Here is what my tenancy's irritancy clause:

"If at any time the rent (or any part of) is unpaid for 14 days after becoming due (whether or not formally demanded) or if the tenant becomes bankrupt or compounds with his creditors or if any of the terms of this agreement are not implemented or any of the prohibitions or conditions thereof are contravened, or if any of the circumstances mentioned in Groungs 8, 11, or 12 to 16 inclusive of Schedule 5 to the housing (scotland) act 1988 shall arise, then the landlord shall be etitled (in addition to any other right) to terminate the tenancy fortwith, provided that he gives tenant at least twenty days notice in writing of his intention to do so.

 

 

This clause indicates that I only need to give a 28 days notice v. the 40 days notice you mentioned above. If I can't enforce the clause then what's the point of it in my tenancy agreement?

 

If I have to serveAT6_Form (2).pdf AT6 form which I have attached to this post. What do I specifically put in part 2, 3, 4, 5 where it speaks of grounds upon which I am relying to take possession.

 

I am getting concerned that I may mess things up by trying to do this myself, should I be looking for a solicitor. I was really hoping to avoid it but this is turning out to be a stressful episode.

[Bang!]

OK - I will go through your issues one at a time. I should add that I have not dealt with these papers for about ten years, and everything is based on the procedures I use myself. I would have served a notice to quit by now, and yours will only have been served 2 or 3 days. I am uncertain of proceeding without the 40 days having past - as I checked through everything in the 90s when I decided my own procedures.

 

Trespass in the way you mean is more applicable to English law, but anyway, no he's not.

 

Sometimes just applying common sense will let you know if something is acceptable. Now for someone's son to be in their house and they happen to be out, then its their house. You cannot dictate who he lets stay with him. You're his landlord, not his mum! An exception to this will be subletting, which is normally not permitted by the tenancy agreement.

 

You cannot bring the police in as it's civil. If they threaten you, or trash the place, or steal some of the contents, then you can get the police.

 

Your tenancy agreement makes up a contract. It is not the law - just an agreement, although failure to adhere to the TA is discretionary grounds for eviction. (Ground 13, Schedule 5, Housing (Scotland) Act 1988).

 

While your TA says you can terminate a tenancy 20 days after 14 days of arrears, you would need to get a Sheriff to agree to issue a decree for this, and its discretionary at such a short time, but very unlikely to be granted on this alone. (Ground 12, Schedule 5).

 

Anyway, you mentioned already the tenant has over 3 months of arrears, and this is mandatory grounds for eviction. (Ground 8)

 

Two things here - 28 days was for agreements under ?3 or 4? months - 40 is the norm. Additionally, clauses in tenancy agreements very often have terms that are more favourable to the landlord than statute permits. So you may have a term stating you need three months notice to end a tenancy. This does not make it the law, and you could not expect a court to enforce an unlawful term. However, as your tenant is more likely to read the contract than to open a law book - sometimes these contracts work in your favour.

 

For the AT6....

 

PART 2.

 

Your name and address then the grounds.

 

These are (as I believe from what you said - if I am wrong then delete the one/s in error)...

 

Ground 8 - The tenant is in excess of three months in arrears with their rent.

 

Ground 11 - There are persistent delays in paying rent.

 

Ground 12 - There are current arrears in rent.

 

Ground 13 - There has been a breach of the tenancy agreement (can only be used for non rent arrears breaches, but if you did as I said and sent notification of an inspection which they then ignored, you can include this too).

 

PART 3

 

The tenant currently has arrears of ????? and ?(has paid rent both late and irregularly prior to this)?

 

The tenant has denied access to the dwelling as agreed in term ?? of the attached tenancy agreement.

 

Upon visiting the dwelling, an inmate therein not being the tenant has stated (whatever makes you feel you are seeing no more money or that the tenant is no longer living there).

 

PART 4

 

Date it a couple of days after two weeks after it is served. Get a sheriffs officer to serve it (although this in not a requirement but can save time).

 

PART 5

 

I could not remember this part, and it's not mentioned in the AT6 you included.

 

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I have no idea of what happens trying to proceed within days of issuing a notice to quit rather than letting it run its full duration. It's very likely it would be incompetent - but when its served by a Sheriff's Officer the tenant normally just does a moonlight very soon after.

 

You will need to see if someone else here can comment on trying to proceed without the notice to quit running its time. Alternately ask elsewhere. To the best of my knowledge all other info is correct but I am offering no warranty or guarantee of this.

Edited July 14, 2012 by Bang!

[res123]

Thanks! That was very helpful. The more I think about this, I think that at some point I have to take him to court anyway for arrears. In that case, I am not sure if I can deal with this on my own as I have a stressful full time job that requires being on the road hundreds of miles away from home.

 

Can you recommend any economical but good solicitors, that will move speedily. I know it sounds horrible, but I am just afraid of messing things up. I was in court few weeks ago for a speeding ticket and a tenant's case was being heard. I felt terrible for the landlord. The landlords were elderly and the rent was supplementing their retirement money. They were representing themselves, the tenant came up with all sort of excuses and the sheriff ended up ordering that the entire process need repeated as the elderly couple missed certain details. It was terrible, so am not trying to fall in the same trap as I am a novice at this and the tenant's comments that he would claim that he paid cash are very discomforting.

 

If you can kindly recommended a solicitor in Glasgow area that would be great. That will save me from picking someone random from the net.

 

One last question? I have lost my key to the flat. What if I were to change the locks, and put a note on the front of the door that please contact me to collect an extra pair of key? I am not attempting to wiggle my way out of my lawful obligations, but I like to at least have the keys to my own flat.

 

Thank you again for your massively helpful posts.

[res123]

Thanks! That was very helpful. The more I think about this, I think that at some point I have to take him to court anyway for arrears. In that case, I am not sure if I can deal with this on my own as I have a stressful full time job that requires being on the road hundreds of miles away from home.

 

Can you recommend any economical but good solicitors, that will move speedily. I know it sounds horrible, but I am just afraid of messing things up. I was in court few weeks ago for a speeding ticket and a tenant's case was being heard. I felt terrible for the landlord. The landlords were elderly and the rent was supplementing their retirement money. They were representing themselves, the tenant came up with all sort of excuses and the sheriff ended up ordering that the entire process need repeated as the elderly couple missed certain details. It was terrible, so am not trying to fall in the same trap as I am a novice at this and the tenant's comments that he would claim that he paid cash are very discomforting.

 

If you can kindly recommended a solicitor in Glasgow area that would be great. That will save me from picking someone random from the net.

 

One last question? I have lost my key to the flat. What if I were to change the locks, and put a note on the front of the door that please contact me to collect an extra pair of key? I am not attempting to wiggle my way out of my lawful obligations, but I like to at least have the keys to my own flat.

 

Thank you again for your massively helpful posts.

[Bang!]

Its not going to look good if the tenant says you changed the locks as you losing your key isn't going to look like the reason.

 

Its of the utmost importance you avoid an illegal eviction and to appear to harass the tenant, as the maximum compensation is based on the difference in value of the property sold with and without a sitting tenant (probably about £5K for a Glasgow flat now - but that is not always the amount awarded).

 

I don't have my books with me where I am just now - so everything is from memory and then checked online. However, on the train today I checked on my phone, and it seems possible its only with an Assured Tenancy

not a Short Assured Tenancy you can proceed to court with 3 months arrears without having issued a notice to quit and let it run.

 

Have you issued one already?

 

Also - there is a good chance just the appearance of a Sheriff's officer will start them leaving.

[SMARTMOVE]

Hi

 

Some of the advice you have been given is wrong, what stage are you at ?

[citizenB]

Res - these people might be able to advise a solicitor in your area.

 

http://www.gain4u.org.uk/document.aspx?cid=2

[sequenci]

You can also seek advice for free via Business Debtline on 0800 197 6026

[maroondevo52]

Not something I have a clue about , found this from Shelter Scotland................

 

http://www.jonathanmitchell.info/uploads/Eviction.pdf

Edited September 14, 2012 by citizenB

[cerberusalert]

I've uploaded the pdf file.

[cerberusalert]

Before a private landlord or letting agency can evict you from your home, they have to follow special procedures. This section explains when you can be evicted and the steps that must be followed.

 

The rules regarding eviction are different depending on the type of tenancy you have. You can find out which kind of tenancy you have by using our online tenancy checker.

 

If you are unsure about the kind of tenancy you have, or you are worried about being evicted, you can get advice from a Shelter advice centre or Citizens Advice, your local council or other local advice centre. Use the Advice Services Directory to find agencies in your area.

Eviction of assured tenants

 

If you rent from a private landlord and have an assured tenancy, you can only be evicted if your landlord follows the correct procedure. This page explains when landlords have the right to evict assured tenants and the procedures that must be followed.

Eviction of short assured tenants

 

If you rent from a private landlord and have a short assured tenancy, you can only be evicted if your landlord follows the correct procedure. This section explains the procedures landlords must follow before short assured tenants can be evicted.

Eviction due to repossession

 

If you rent your house off a private landlord and you have been threatened with eviction because they have defaulted on their mortgage this page outlines your rights.

Grounds for eviction

 

If your landlord is trying to evict you, they must provide a reason or ground. This page lists the grounds that can be used by a private landlord to evict an assured, or short assured, tenant.

Eviction of pre-1989 tenants

 

If you rent from a private landlord or letting agency and your tenancy started before 2 January 1989, you will probably have a regulated tenancy. This section looks at your rights against eviction.

http://scotland.shelter.org.uk/get_advice/advice_topics/eviction/eviction_of_private_tenants