Tenant abandoned the premises before the end of the fixed AST (6 months into it). They took their things and stopped paying the rent. The AST has now ended. There is 6 months unpaid rent and damages etc. I was awarded the rent deposit and am left with about £4k in rent to be paid. If the tenant refuses to pay, I believe I can pursue it in small claims court. Would I be correct? Any knowledge would be appreciated.
Yes you are. It’s a straightforward process.
Make sure you put down the tenants last known address (if you don’t know where they’ve moved to it will be your property).
Fill in the form, mail it off and you will most likely get a default judgment. After that you instruct debts collectors to find them and get the money.
If you want the money then find out their new address first using a tracing agent if you don’t have it. Otherwise you might get a ccj but no payment.
Does the tenant have any money? If not then they won’t be worth suing.
So David is right when it comes to suing a tenant without money. Flogging a dead horse and all that.
In terms of the address David is right that you can pay for an address trace, but I wouldn’t for three reasons. Firstly, it costs additional money. Secondly, by sending it to their new address you’re sure of them disputing it. Thirdly, the CCJ is valid against them if you use their old address (and you can go after them at their new address) but the trick is they can’t dispute it as long as you haven’t been told their new address!
It’s a bit sneaky but the law is clear and huge companies do it all the time when people move and leave old bills behind (they think!).
Love the sneaky bit, they deserve it !
Haven’t heard of that Per. My understanding is that if the tenant can show that you used the old address knowing they weren’t living there, they can easily get the judgement set aside. Do you have experience to the contrary?
Thanks everyone for your messages. Much appreciated.
Just to give a bit more info, the tenants are working professionally, but I don’t know whether they have savings. I assume they would not want CCJs regardless. The tenants abandoned mid-term, I erected an abandonment notice and as the tenant transferred their council tax and utilities back to me, it was clear that it was abandonment. I sent a copy of the contract to the council and utility companies. They all reverted the charges back to the tenants’. When it was clear they were not returning, I cleaned, redecorated and rented the premises before their tenancy finished. Soon after they left, they also requested back their rent deposit from DPS, which I disputed. It was left like that until the contract expired, then which I served a statutory declaration to obtain the deposit. DPS made them aware and after 14 days the DPS returned it to me. A few days ago (before my message on this forum) I sent them an notice via email to pay the outstanding balance, including damages etc and made it clear that I would take it to the courts if they do not, as well as asking for for their new address. If I end up taking them to court, I’d send the notice there.
If they do send me their new address, should I use it to serve them or last known address? A judge deciding in their absence would be preferable but there is always the chance of them actually providing me with their new address, though I don’t think they would.
They lived there for about 3 years and after about 6 months they started to mention nuisance coming from upstairs. In 3 years I got about 6 texts from them about it. They involve the council. They made an informal agreement with the people causing nuisance regarding the time they would allow them to play. Although I repeatedly asked for evidence they claimed to have, they never shared anything with me. Although they complained, they renewed their AST twice. They abandoned halfway through the second one. Should it go to court, do you think this would be a good defence for them?
Any advise from anyone would be appreciated. Sorry for the lengthy message.
As long as the tenant hasn’t told you or you’ve become aware where they are living you have no duty to take steps to find out.
It’s correct that they can ask to have it set aside once they become aware but A/ they might not know that or act in time, B/ they have to provide a reason to the judge and provide evidence, C/ their credit rating is already destroyed.
What is the outstanding balance you are referring to? As soon as you entered and started cleaning then you will be deemed to have taken back possession. So rent would only be due up to that date. If the rent for that period is more than the deposit then yes, there would be an outstanding balance, but not otherwise unless there was damage or other costs you had to cover.
In any event, I would just accept the situation and move on. The hassle of taking them to court is probably not worth it for a small amount of rent and there is always the risk you’d lose and have expensive court costs.
Yes, I agree as soon as I start cleaning, it’s deemed to have taken back possession, but by the time I had the possession it was about a month and time passed and by the time it was cleaned, tidied and in the market, even more time passed. After the money back from the deposit, the sum is around 3k. Wouldn’t you agree that I should be able to claim for the period until I relet it which was in his contractual responsibility period?
No, not once you took back possession. If you had left the property as it was and empty then yes, you would be entitled to claim for anything up to the date his fixed term ended. However, I wouldnt recommend this. Once you took possession, his tenancy and all obligations ceased. If you try to claim rent for a period that you were in possession, then you are admitting to illegally evicting him.
You can certainly pursue them using small claims track of the county court (the “small claims court” does not actually exist). It’s a very easy process as you can do it all online (search “money claims” and you can find the link on the HMCS website). Make sure you together official (and not some scam) website.
There may be an issue with getting all of the six months’ rent paid as the court may require you to have made reasonable efforts to replace the revenue once you became aware of the situation. You might want to look into that and craft an appropriate argument.
I really would not play sneaky as the court may not like that. Also if you have a decent case you will probably win anyway. I would always serve the papers on the defendant at their current address (if known). I believe that it is an established principal that the parties in a court case should keep each other up to date on each other’s argument and evidence.
You should also demonstrate that you have made every effort to settle this out of court – by making a proposal to the recalcitrant tenant. The court will appreciate that and if the defendant refuses to engage that will be a point in your favour.
In my experience following procedure and customs is at least as important as the actual evidence – in soe cases more so.
THs is not of course official advice as I am not a qualified lawyer – just what I would do if I were to find myself in your situation.
That isn’t right Matthew. Whilst anyone can sue anyone else, they won’t win if they don’t have a case, and its clear from Sevil’s statement “When it was clear they were not returning, I cleaned, redecorated and rented the premises before their tenancy finished” that he re-took possession of the property on the basis of implied surrender. No court will award any further rent for a period where the landlord was in possession. Furthermore, it opens up the possibility of a claim against him by the tenant.
If Sevil had left the property as it was with just his abandonment notice then he would have been able to claim the rent through MCOL and with no requirement to mitigate his losses during the fixed term. However, its a high risk strategy.
I’m not 100% convinced that the court would see it as illegal repossession and leave a landlord open to prosecution if there’s plenty of evidence that the tenants had left. There’s a basic principle in law that you have to mitigate your losses. That would suggest that attempting to re-let the property is what should be done. Obviously you can’t then claim for loss of rent once it has been let- there is no loss at that point.
I’m no lawyer and tenancy law may overrule that principle, but I still don’t see any sensible magistrate not seeing re- letting as the best course of action
Not quite sure where you are disagreeing with me here. I may not have got the detailed procedure correct but the practical result would be the same.
I believe that one should use good business sense before resorting to the courts – it’s usually a lot cheaper both in terms of fees and time. Funnily enough the court service seems to agree with me.
As I said I am not a qualified lawyer – but I have used this procedure in a comparable situation and made a successful claim. In that situation I did try (initially unsuccessfully) to contact the recalcitrant tenant prior to taking possession. After that I thought that the balance of risk was in favour of retaking possession. Indeed when I did eventually make contact with the tenant he was only too keen to settle the dispute (presumably, in his mind at least, in order to avoid being liable for the total back rent).
It is also good business practice to mitigate your losses as there is always a chance that the judge will not agree with you.
I think that you might be referring to taking possession
I would agree with you on that. Presumably there was some time before possession was retaken (and you could sue for that) and I did point out that you probably cannot get the whole six months.
Firstly, there is no legal requirement to mitigate losses with fixed term tenancy contracts.
I’m saying that if this went to court, a judge would attempt to assess at what point the tenancy ended. I dont believe they would conclude that it was as late as the date of re-let since it is clear from Sevils statement that he entered in order to clean before that. The obvious conclusion has to be that from that point he took possession of the property and he would not be able to claim rent for a period in which he was in lawful possession. If he presses the point a court would be free to conclude that he had taken possession unlawfully at a time when he believed the tenancy was still operating.
The tenants informed the council and utility companies that they moved out and so the council and utility companies sent their bills to the new occupier. They also requested their rent deposit back. Clearly, tenants were not coming back. When I relet the property, I informed the council and utilities that I relet the property and that previous tenant was responsible for empty periods as the responsibility was within their contractual period and they agreed. None of them chased me up for payment after this. When counterclaimed rent deposit tenant did not respond and I served statutory declaration and presumably they did not respond, and so DPS send me the deposit.
When it was clear tenants will not come back (and remember they left the door open and keys on kitchen unit) then I repossessed. This saved time for me and reduced their losses.
It should be noted that before abandoning they had requested a reference by way of a referencing agency for a different property. I have provided an honest reference of them paying on time etc but also are breaking their contract by trying to leave. I wrote to the tenant explaining their responsibilities but they ignored it and abandoned it.
I agree with Matthew and I believe my losses are recoverable.
I do not agree with David that should I claim in court, that they could retrospectively put a claim for my repossession, though the contract has already ended.
That’s fine. You are free to do as you think fit. Let us know hhe outcome.
Amazing advice, soooo good that almost feels like the best payback LL can do