UK Landlord Forum / Life

I brought a property with a sitting tenant, unaware he's previous landlord couldn't evict him at court due to lack of gas safe certificate when he took up the property, my tenant is also using this as a defence against my s21.

Not only this but on the deposit protection certificate it's not completely filled in I have made a mistake and left a page blank where it says

(vi) The circumstances when all or part of the deposit may be retained by the landlord, by reference to the terms of the tenancy;
These are the circumstances in which all or part of the tenancy deposit may be retained at the end of the tenancy, with reference to the relevant clauses) in the Tenancy Agreement:

Would this need to be completed to make the deposit protection certificate valid?

In our tenancy agreement it also states we can also send notices via email so I have sent all these documents over email including how to rent guide. He said he hasn't agreed to recieve anything of these documents over email and hard copy of how to rent guide should have been given. Are notices the same as prescribed information?

Can anyone shed some light please? I've already applied for a possesion order so I'm guessing he will use this as a defence to prolong things.

Thank you

None of the other issues matter if there was no gas safety check done prior to the property being let. As it stands, that rules out using a s21 notice altogether. If the was a check done, but no certificate issued, that might be a way forward.

I don't think the PI issue is critical, it just means any deposit claim is invalid. The How to Rent guide isn't a notice, so the clause doesn't appear relevant.

Your tenant knows more about this than you do.

The tenant has told me there was gas check done but the man wasn't registered and therefore the certificate wasn't valid.

Assuming the tenant is paying their rent, your best (though not quickest) solution is to up the rent to the maximum comparable local amount you can get away with, when you can legally increase it.

Then max it out the following year.

Your Tenant will either move or default - if the latter then you have your alternative eviction route.

If you need the property quickly, then you need to offer a cash incentive good enough to get him moving of his own accord.

Quote from: sugarlips33 on December 01, 2024, 07:53:18 AMI brought a property with a sitting tenant

Not that this will change your current situation, but did your conveyancing solicitor not warn you of the pitfalls of buying with a tenant in situ?

Quote from: sugarlips33 on December 01, 2024, 09:38:18 AMThe tenant has told me there was gas check done but the man wasn't registered and therefore the certificate wasn't valid.

If the person doing the gas check wasn't certified to do the check it wasn't done at all, the certificate doesn't matter.
But, given the tenant has a significant incentive to not tell you the truth have you checked it out yourself. You don't want to be taking what the tenant says as being reliable.

Other than that, the advice offered by South-West is good.

The tenant has took help from shelter they apparently dealt with the previous landlord so have the evidence for this. Why does it matter to me though it's not me who done who didn't do the gas safe correctly

If there was no gas safety check done when the original tenancy began, there is no possibility that you can comply with the requirements to serve a valid s21 notice. It's not something you can fix.

You not being the landlord at the start of the tenancy doesn't change the need for the gas safety check to have been done then.

It's why buying a house with a tenant is risky and requires a lot of detailed checking, particularly if your plan is to evict the tenant after completion.

Is this likely going to be listed for a court hearing then? I've already applied for possesion order

It will fail again and your options are very limited unless the tenant gets into at least 2 months arrears.

Quote from: sugarlips33 on December 01, 2024, 01:27:46 PMIs this likely going to be listed for a court hearing then? I've already applied for possession order.

Unless the tenant decides to leave, yes it'll go to court. And you'll almost certainly lose.

Is the property in or outside of London?

Have you been given a copy of the Judgement by the Tenant?

Has a Gas Safety inspection been done since the alleged fake one?

Were you given any legal papers from the person that sold you the property?

Assuming you are going by S21 then all the prerequisites needed to be done or remedied before it was issued you are not clear whether when you say

"I've already applied for a possession order"

you mean you have served a new S21 in which case you might as well retract it or

If you have filed the n5b-eng with the Court in which case you should discontinue that as it will only delay matters.





You first need to consider the situation of the Tenant, are they deemed as a vulnerable Tenant by the Council (under Housing Act)?  In other words would the Council owe them a Housing duty if you successfully evicted them?

If they are vulnerable it may be the Council who referred them to a law centre to prevent homelessness (one of their duties).

It will probably end up a combination of carrot & stick.

Rather than evicting them, if they are now on an SPT because their previous Tenancy fixed term expired then you are entitled to increase rent using the S13 procedure, do not rush into the paperwork, so many people get this wrong.  Once you have read the guidance notes and are confident you know what you are doing then do some market research about the likely market rent, take into account similar properties and what is included in the rent.

They can and will refer the rent increase to the First Tier Tribunal, if they pay the increased rent they can't do this as they will be deemed to have accepted it.  Unless there is something wrong with the rent or it has already been increased in the last year then you will likely get an increase of some sort based on your submission, their referral and your submission to that referral.

If the Tenant is on Benefits then it might be the case that the new rent is above the LHA rate for the Area which is where Housing Benefit is set, (determine that on .GOV website before you start).  So now they would have to pay the excess out of other income and may go into arrears, once they hit 2 months of arrears you have cause under S8 Eviction route.

At the same time if you really want them out you offer to give them some money to leave, so they have a choice, debt or cash money, but if they are owed a housing duty they will not be able to leave of their own accord as they will be deemed by the Council as intentionally homeless.  Of course they may be fine to move to another PRS property and not involve the Council, their whole reason for delay may be the current rent being affordable, so again S13 removes this thinking.

Even though S21 prerequisites are not there in Section 8, some Tenants try it on and some Judges fall for it, so line up your ducks, get Gas Safety done properly, make sure the Deposit protection Legislation was fully complied with, make sure there are no prohibited fees you were not aware of, make sure you served How to Rent and especially a proper Prescribed Information.  The most common "try on" is to ask for an adjournment while they seek legal advice for a counterclaim.

The bit of the PI you missed out will definitely not suffice, it needs to refer to the section in the Tenancy and even by itself can lead to a S21 being deemed void, it also needs to be signed by you.

As for the email, if the Tenant informed you in writing that he had received them then unless he asked the previous Landlord to not send things via email then they will be deemed as served.  However, as what you served was likely void anyway then it is a moot point.

Also as they have now told you that they don't want email which is their right under GDPR you now have to serve properly and might as well get it done by professionals.

What you should be concerned about is how many previous tenancies were there with old Landlord where Deposit Protection Legislation was not fully complied with as these can result in a penalty of between 1x and 3x per Tenancy. 

If the seller did not declare all these failures as part of the sale via conveyancing Solicitor then I think you might have an action against them.  It is one thing to say they have a sitting Tenant and quite another to fail to mention the liabilities they have left you open to.

Quote from: sugarlips33 on December 01, 2024, 07:53:18 AMI brought a property with a sitting tenant, unaware he's previous landlord couldn't evict him at court due to lack of gas safe certificate when he took up the property, my tenant is also using this as a defence against my s21.

Not only this but on the deposit protection certificate it's not completely filled in I have made a mistake and left a page blank where it says

(vi) The circumstances when all or part of the deposit may be retained by the landlord, by reference to the terms of the tenancy;

These are the circumstances in which all or part of the tenancy deposit may be retained at the end of the tenancy, with reference to the relevant clauses) in the Tenancy Agreement:

Would this need to be completed to make the deposit protection certificate valid?

In our tenancy agreement it also states we can also send notices via email so I have sent all these documents over email including how to rent guide. He said he hasn't agreed to receive anything of these documents over email and hard copy of how to rent guide should have been given. Are notices the same as prescribed information?

Can anyone shed some light please? I've already applied for a possession order so I'm guessing he will use this as a defence to prolong things.

Thank you