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I have a flat that has been let to a tenant on an assured tenancy.

He started to become irregular...
I have a flat that has been let to a tenant on an assured tenancy. He started to become irregular with his rent payments during 2010. His final monthly payment was January 2011. After many promises and phone calls I came to a verbal agreement with the tenant that he could stay in the property if he agreed to erect a building for equivalent to the rental owed. The tenant agreed to this. However by February 2012 and despite continual chasing I had not heard from the tenant. When I did get to speak with the tenant during February 2012 he again stated his intention to erect a steel building for me however I stated that due to the considerable arrears he must show some financial willing to remain in the property. He duly paid �1000 to me. Despite chasing him I had no contact with him until September 2013 when he told me he would not be paying any further arrears. I later found out he has moved out without giving notice and went bankcrupt in September 2012. What can I do legally?
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Answered in 5 minutes by:
9/17/2013
Jo C.
Jo C., Barrister
Category: UK Property Law
Satisfied Customers: 70,813
Experience: Over 5 years in practice.
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Hi

Thank you for your question. My name is XXXXX XXXXX I will try to help with this.

Are you asking if you can sue him despite the bankruptcy?
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Customer reply replied 4 years ago
Hi there. Firstly it appears he has now moved out despite not giving notice. He may have been gone for many months. Our agreement was that he would erect a steel building for me as he is a steel building fabricator and erector which he still does. Can I enforce this agreement for the value of arrears both per and post bankcruptcy? Can I pursue through the courts the arrears? Is he liable due to not giving notice arrears until notice is given?
Just to let you know, i think this is more of a bankruptcy question so I'll pass this onto somebody who does that for you.
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Customer reply replied 4 years ago
For Jo C
There are three issues a) bankcruptcy
b) failure to give notice
c) alternative payment agreement
James Mather
Category: UK Property Law
Satisfied Customers: 22,629
Experience: Senior Partner at Berkson Wallace
Verified
I see that you have opted my colleague out. I will try to assist.
You should have given him a section 8 notice when he was first two months in arrears. In that respect, you have been the author of your own misfortune by simply letting the whole thing carry on
If he is bankrupt, then it wipes out his rent arrears to the date of the bankruptcy so he is only liable for rent arrears from September 2012 onwards.
I would raise the issue with the trustee in bankruptcy that is dealing with his case but it is doubtful that it will have much effect although the trustee/administrator may raise the issue with the bankrupt because clearly, he is not acting within the spirit of the bankruptcy administration.
I accept that he has not given you notice but given that he is obviously some kind of financial scumbag, I think it is hardly worth pursuing apart from the fact that you can put pursue him for rent arrears from September 2012 and also.
I think that the alternative payment agreement was what is known as “a puff” (that is, surprisingly enough, the legal phrase) which is when somebody just makes a remark to try and close a deal or get rid of someone. I think he was anxious to get rid of you chasing him for rent and therefore he offered to do this building for you to get rid of you. I don’t think there was ever any intention, based upon the fact that you have given me, of him doing the building. In any event, if you can’t get rent out of him, what chance do you think you have of getting a satisfactory building? I think very little.
Assuming that he has completely vacated the building and there is nothing of his left so that he cannot say he had not vacated, then I would issue Small Claims Court proceedings against him without further notice.. I assume that he owes under £10,000 otherwise it is not small claims.
This kind of person has no respect for debts whatsoever and I think the chances, even if you’re court claim is successful, of getting any money out of him is going to be remote.
Even if you do get a judgement, he was bankrupt 12 months ago and therefore the chances are that he has not amassed any assets or savings or money with which he would pay you. You could get an agreement ordered by the court, for him to pay monthly but the chances are that if he did not pay rent monthly, he would not pay the court order monthly. He has just been bankrupt so clearly not paying people is not high on his agenda.
I’m sorry, I appreciate that this is not the answer you wanted but there is no point in me misleading you. I have a duty to advise you truthfully and honestly, even if that answer is unfavourable
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Customer reply replied 4 years ago
He has set up in his daughters name with all his old equipment. He runs a steel building fabrication and erection company. It was I who proposed to him the chance to erect a building for me. Whilst the materials would cost him or myself it was an opportunity for him to pay off the arrears through his labour and profit margin on the building.

Your answer over his bankruptcy confirms what I already thought. However what I need to know most is (due to being unsure) say he left the property 12 months ago but I only found out last month can I take him to court due to him not giving notice?


Forgive me for being cynical. It might be in his daughter's name
but he will be pulling the strings!

Yes, you can sue him for all the arrears because he has not given
you notice. However you are under a duty to mitigate your loss and the court
might think that it would not be unreasonable for either you or an agent to
visit the property in a 12 month period, particularly if the rent was in
substantial arrears

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Customer reply replied 4 years ago
No I totally agree. However what is the legal requirement of the tenant giving notice? Does he need proof of such in court?


Yes he does need proof. Expect him to come up with a letter,
dated a year ago which he allegedly gave to you!

In other words, he will lie and it is up to the court who they
believe

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Customer reply replied 4 years ago
Thats what I was getting at! No point chasing unless the notice needs to be by recorded delivery. Fully expect a letter to pop up. So he doesn't need solid proof that the letter was sent when he will say it was?


Unless the agreement says that the notice has to be by recorded
delivery (doubtful) very you give it to you by hand or send it by first class
post provided he has proof of delivery.

He can actually say that he gave it to you by hand (lie). You
might want to change your tenancy agreement for the future to prevent this
happening

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Customer reply replied 4 years ago
Thats all clear and leaves me with the agreement over the building, if I can prove an agreement was in place both pre and post bankruptcy can I claim that he must now work off those arrears as agreed?






You don't need to prove the arrears because the arrears are fact.
He is liable to pay them.



You need to prove that there was an offer and an acceptance with
regard to the new building. If there is an offer to do it and acceptance by you,
then there is an agreement.



The consideration of the agreement (good financial consideration
in this case) are the arrears.



In cases like this however the court will rarely order specific
performance because if someone is finishing the job off against their will,
they are not going to make the best job of it, I am sure you can appreciate.



In that case therefore the court will award you
compensation/damages (money) which means that the whole thing has gone full
circle.

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Customer reply replied 4 years ago
What I am getting at is can I claim on the agreement for the arrears prior to his bankruptcy?

No. Bankruptcy wipes debts out incurred before the date of the bankruptcy and wipes out any obligations to that date. The three most notable things that it does not wipe out our child maintenance, spousal maintenance, and student loans.

You can only therefore enforce any agreement and debtswhich occurred from the date of bankruptcy (not the date of discharge from bankruptcy)

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Customer reply replied 4 years ago
very many thanks

I am glad to help.

Please don't forget to positively rate my
answer service even if it was not what you wanted to hear. You should now see a
series of buttons which enable you to rate my answer service formally.

If you don't rate it positively, then the site keep your deposit and I get 0
for my time.

James Mather
Category: UK Property Law
Satisfied Customers: 22,629
Experience: Senior Partner at Berkson Wallace
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