by | Feb 17, 2021 | Safer Renting

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There’s an understandable presumption made by people who don’t deal with rogue landlords for a living, that all TRO style disputes revolve around lock changes, assaults, utility disconnections etc but this is far from the truth.

Many cases involve stupidly complex housing law issues and even moral quandaries and I thought with this piece that I would tell the tale of one of our recent cases that illustrates the various issues our TRO team have to wrestle with each day that don’t involve people being thrown on the street with all their belongings.

Often it is about negotiations and brokering deals of various types, based not on fairness or justice but on damage limitation and practicalities.

I long ago gave up any notion I once may have had of a Walt Disney version of law, where the landlord commits an offence and the tenant gets immediate justice from the courts. That isn’t how it works in the main.

Meet Felix (not real name) He rents a property from an agent and sub-lets out the 6 available rooms as an HMO.

The property is in a council district with selective licensing in place. The property has a selective license but not a mandatory HMO license that it needs with 6 households occupying.

The council discover the property, noting it’s unlicensed status and opens talks with the owner about the breach who, as is the normal procedure in 90% of cases, immediately goes to the property and tells everyone they have to get out. Four of the renters do as instructed but the remaining two, having taken the property on in good faith decide to stay put, having no funds to relocate anyway.

Around the same time that the council discover the property Felix disappears. This is July 2020.

Safer Renting get called in and contact the owner, Mr Sham advising him that he has no management control of the property because the sub-tenants were renting from and paying rent to, Felix.

Mr Sham replies in email that he doesn’t know who Felix is, has never met him and that in his view the sub-tenants are merely trespassers, having entered without his knowledge. He also demands rent payments from the remaining two occupants, who we advise not to pay, on the basis that they do not have a contract with Mr Sham and have tenancy agreements and records of rent payments to Felix from the start.

Several months and a few angry visits to the property later, with our assistance the tenant’s are still standing firm and we advise Mr Sham to back off or face legal action, at which point he goes off to see a solicitor for advice.

Having spoken to his solicitor he contacts us again and says he does know Felix after all but never gave approval to sub-let the property. He insists that the sub-tenants should pay him but we advise that although Felix may appear to have done a bunk, it doesn’t mean that the sub-tenants contracts with him have ended and that Mr Sham, not being party to the arrangement, still had no right to demand rent from them.

In case you don’t know this is a really common scenario, perhaps the most common for us. Felix’s tenancy has not been brought to an end by either landlord or tenant, so in legal terms he is still the landlord of the sub-tenants.

Mr Sham stood his ground for another week or so then went to see his solicitor again before coming back to us and adding that not only does he know about the letting but also, that Felix surrendered his tenancy to Mr Sham in July and that in accepting the surrender, the sub-tenants now become his direct tenants and therefore liable for the rent. (Parker v. Jones 1910)

Well, what’s the chances of that happening then? He completely forgot that he was renting to a man called Felix and then suddenly remembered after he had spoken to his solicitor, that not only had he done so but that he had also accepted surrender 5 months before? When he realised that if he hadn’t accepted surrender, the sub-tenants wouldn’t have owed him any money.

Memory can be a funny old thing until jogged.

Ok, so now we have established that despite his early onset memory problems, in theory at least, he can establish a rental liability for the sub-tenants but now what is he going to do? Serve a s8 notice and seek a possession order? Well at that time the moratorium on evictions still required a 6 month notice period, which could only be shortened if the renter was in 9 months rent arrears and discounting arrears accruing since March 23rd. Neither of which applied here, so he would be faced with a lengthy wait for a possession order, where we would have counterclaimed for harassment anyway  and raised his early communications with us over not knowing Felix, as proof of his trustworthiness.

Except he didn’t do that. Instead he applied for £5,000 against the two occupants using Money Claims Online (MCOL), which would give him a recognisable money order but no possession, a good and very cheap way for him to pressurise the occupants into throwing in the towel, fearing the debt, so he gets his property back for just the couple of hundred quid it took to lodge the MCOL claim.

Very cunning but things get more complicated. The claim was registered over the Xmas period. The tenant we were dealing with has no spoken English and by the time she notified us of the application she was 2 days past the filing a defence date. Not normally a problem in possession claims as you simply lodge a later defence but as we found out, the MCOL system doesn’t allow for filing late defences.

So all we could do was let the claim go ahead and then appeal it afterwards but if you don’t pay a claim within 30 days you automatically get a CCJ against you and setting such things aside doesn’t go smoothly and is a complete faff with no guarantee of a smooth or effective result.

Our client cant get legal aid for challenging a money claim and with no spoken English would struggle to represent herself in an appeal, where the defence is the untrustworthiness of the landlord and the complex housing law issues that would provide the basis for the appeal.

As predicted the landlord says that if she vacates by the end of the month he will drop the money claim. Recognising that she is really on a hiding to nothing, we reluctantly go down the practical route and approach the homelessness unit and explain her quandary and asking if they will remove her from the property on the basis of s175 homelessness by virtue of it being unreasonable to remain due to “Special circumstances”.

They grasp the quandary immediately but to our horror suggest, although quite correctly, pursuant to the first limb of the homelessness prevention duty to sustain a tenancy, that they will clear the £5,000 debt if he offers to take her on with a new agreement.

£5,000 being cheaper than the costs of rehousing but £5,000, to go to a man who in all probability isn’t even entitled to receive the money. A £5,000 reward of public money for having the honesty of Jeffrey Archer coupled with the moral compass of a KGB spy.

We were indeed spitting feathers at this suggestion, even though it would have saved her home and got rid of the debt hanging over her head.

This is the kind of compromise you are up against.

You want to protect the tenant from future problems and see justice done but it might also mean that the landlord wins and in this case, gets several thousand pounds he isn’t even entitled to.

Unlike the landlord the tenant cant afford legal representation and is not capable of defending herself.

The law is on her side, justice is theoretically on her side but in practice? Well, as I say, it’s a bit Walt Disney don’t you think?

Natural justice takes second place to practicalities and damage limitation.

Finally, thank god, the homelessness unit decided that they wont clear the debt and will instead get her out of there and arrange for rehousing.

The landlord of course is perfectly happy, having got possession just by spending £180 to launch a money claim that he probably had no intention of pursuing. A very cheap route to possession without involving possession orders or harassment, just lawful intimidation by way of fear of debt.

The tenant is happy because she is finally going to get out of there, albeit probably straight into the arms of a similar landlord.

The only satisfaction we get is at least knowing that Mr Sham is going to be five grand down. He certainly wont be getting the money from Felix but you can rest assured that the triumvirate of the agent, the owner and Felix will survive to sub-let another day, while they all divvy up the extra proceeds on an overcrowded sub-let, until the local authority licensing team discovers the next one, in which case Mr Sham will profess outrage again at the indignity and  ignorance of the sub-let, along with the agent who will insist they only let to Felix, whilst all along the three of them are renting properties in the same way all over London, sharing the extra spoils.

This is what it’s all about folks

 by Ben Reeve Lewis

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About Cambridge House Safer Renting

The Cambridge House Safer Renting team present the ‘go-to’ blog on the world of the Shadow Private Rented Sector.

We monitor the world of rogue landlord and agent activity, publicise developments, circulate innovative ideas, keep readers abreast of changes in laws and regulations, raising awareness of criminal trends and scams, celebrate successful actions and interview people working in the field, connecting up anyone involved, from tenants and their advisers, to enforcement officers, lawyers and journalists.

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