Loopholes BEWARE
Possession - Section 8 and Section 21

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4 Posts
9 years ago
After more than a decade of renting a portfolio of properties I thought I had seen everything. BEWARE.

I'm hoping someone out there may have some experience of this and can offer me advice. The crux of my grumbles come down to, being able to find fault in any house if you want to. This allows tenants to issue a counterclaim to the Section 8 for disrepair. Initial court proceedings will be adjourned (the judge is only allotted a few minutes for simple cases). This buys the tenant another few months of living rent free.

My tenant moved into my property in June on a 12mth AST, and paid the deposit and first months rent in advance. He passed all credit checks and referencing. I started chasing rent immediately when it was late, my tenant cut his hours back at work and couldn't afford to pay so said he would have to move out (I agreed). After six weeks of chasing the proportion of the rent he agreed to pay I finally get a phone call from my tenant to say he has moved out, not because of financial difficulties, but due to dampness in the property which was affecting his health.

I was anxious to check out damp issues, especially given only a couple of years before a tenant at a different property had tried to claim liability against me for dampness. In that instance she dropped the claim after Environmental health visited the property and confirmed there was no damp. My current tenant wouldn't contact me to arrange an inspection as discussed, the phone call I received later that week was to tell me Environmental Health had been out to this property. It's common practice for Citizens Advice to advise tenants to contact environmental health as a matter of course. I'm no stranger to the EHO, they can make your life miserable and issue enforcement notices to update your property over and above that of current building regs, regardless of the issue they are called out for. Thankfully in this instance the property had been recently converted from three houses into one huge, high-end detached dwelling, so all building regulations, fire corridors etc were in place. Again the EHO was satisfied there was no damp in the property and was also satisfied with every other aspect of the property. This was confirmed in writing. This should have been the end, however....

Because my tenant cut his hours down (or stopped working), he was able to receive legal aid. Despite my sending the report from Environmental Health to my tenants solicitor he was able to receive legal aid to make a liability claim against me. Had there been initial evidence of damp any tenant could presumably go to a no win no fee type solicitor to get this expert witness report. If the tenant starts these proceedings before the section 8 is issued (landlords have to wait for two months rent arrears), it is near impossible to evict the tenant quickly if disrepair issues are found within the property as they can make a counterclaim to the Section 8.

There are two major issues. Firstly the tenants will be able to get an expert witness report from a chartered surveyor for free (costing around £1000), which effectively trump the environmental health report and any other survey reports a landlord may have carried out. Because these reports are so in depth the surveyor should find fault. Hell, I'd find issues if someone was paying me a grand. Unfortunately I fell down on things like evidence of past woodworm, pattern staining to the paint of a chimney breast (although the report stated this is likely to have been remnants of a old damp issue that has been rectified), a section of one staircase without a bannister, rotten window casing, evidence that the gutter had leaked at somepoint...This surveyor, working from the same legislation/guidelines as Environmental health deemed the property to be a health risk to the occupiers and found category 1 hazards.

The second issue is time. This is where I am today. If I start court proceedings for non-payment of rent (the Section 8 notice has expired) my case is likely to be thrown out due to a counterclaim of disrepair. I'm also likely to be liable for all expenses. There are 7 months left on the tenancy so a Section 21 is not an option. Any ideas? Has anyone else experienced this? Obviously I will be getting the work done to the property ASAP.

If I am correct here, clearly it is easy, should a tenant want, to get away without paying rent for 11 months out of a 12 month contract. (I won't be issuing 12 month ASTs anymore), especially if the property is slightly run-down....throw in a personal injury payout and that's the retirement pot sorted.

Factor this weeks reform bill changes into all of this and I think it's time for the landlords to retire.

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