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Month in advance

Steph F
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Glasgow West Housing Association

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I am assisting a group of tenants all in receipt of full HB who have received letter advising they are in rent arrears as they are not 1 month in advance.
I know there is nothing much we can do about 1 month up front when moving in but has the RSL any right to force tenants into ‘rent arrears’

most of these tenants live in a sheltered home complex

Elliot Kent
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What do the tenancy agreements say about when rent is due?

Steph F
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28th day of the month…
These tenants are being threatened with court action, I am contacting MSP, Shelter and Legal Services

[ Edited: 29 Jan 2020 at 09:13 am by Steph F ]
Va1der
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Is there any action being taken against the tenants to reclaim the arrears?
If not it doesn’t pose much of an issue, other than being annoying. Also creates an unnecessary deficit in the RSLs accounts, but that’s their problem.

You could ask the council to make more frequent payments, to reduce the amount of arrears at any given time.

And with regards to rent upfront when moving in, you could ask for DHPs.

EDIT: Hadn’t refreshed the page to see the above posts.

Va1der
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Steph F - 29 January 2020 09:04 AM

28th day of the month…
These tenants are being threatened with court action, I am contacting MSP, Shelter and Legal Services

Negotiations might be your easiest bet, if the RSL agrees to fortnightly arrears, for instance.

The council might be willing to cover it with DHPs.

As an aside, it sounds like the RSL has a new finance officer (I’m guessing these are ongoing tenancies), so if it’s with a bigger organisation you might have some success by going ‘above his head’ and see if this is indeed in line with their rent policy.

Steph F
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thanks guys

one of my the tenants involved has approached a solicitor and will be making a complaint in relation to the manner and wording of the arrears letter

Elliot Kent
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It’s not up to the landlord to just decide that you’re in arrears. If the rent isn’t yet due under the agreement, then the rent isn’t due and you aren’t in arrears regardless of what the landlord says. The landlord can huff and puff if they like, but in all likelihood your clients will qualify for legal aid to defend any possession action and doubtless their solicitors would be pressing for any claim to be struck out or dismissed with costs awarded.

Oldestrocker
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Elliot Kent - 29 January 2020 01:38 PM

It’s not up to the landlord to just decide that you’re in arrears. If the rent isn’t yet due under the agreement, then the rent isn’t due and you aren’t in arrears regardless of what the landlord says. The landlord can huff and puff if they like, but in all likelihood your clients will qualify for legal aid to defend any possession action and doubtless their solicitors would be pressing for any claim to be struck out or dismissed with costs awarded.

Rent arrears of this nature are quite common. The tenant has to abide by the contract that was signed.  Normally when taking up a tenancy say on the 1st June the tenant would pay not only a deposit but the first month’s rent. Rent from then on - 1st July is always in advance - as I explain to my tenants - ‘you pay a month and live there a month’.

However some landlords have a ‘2 month advance’ payment system. Effectively there really should never be a situation where the landlord has not received his rent - at the start of the month he would always be holding two months rent reducing to one months rent at the end of the month just before the next monthly payment is due.

[ Edited: 29 Jan 2020 at 04:48 pm by Oldestrocker ]
Timothy Seaside
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Oldestrocker - 29 January 2020 04:42 PM

However some landlords have a ‘2 month advance’ payment system. Effectively there really should never be a situation where the landlord has not received his rent - at the start of the month he would always be holding two months rent reducing to one months rent at the end of the month just before the next monthly payment is due.

Holding two months rent and requiring monthly rent payments is pretty much the definition of a tenancy deposit - I’ve successfully argued this in court a few times, and although I’m a bit rusty now, I think there is judicial authority for this. Landlords who do this are very much at risk of falling foul of the tenancy deposit rules in HA 2004.

However, the OP is about social landlords notifying tenants that they now need to pay in advance. As everybody here seems to agree, the key thing is to look at what the tenancy agreement says. I’ve heard of a lot of social landlords “encouraging” tenants to get a whole month ahead (so that they are still a month in credit when the next payment comes in) - it’s a sensible precaution to help mitigate the effects of moving to UC, but it can’t be forced on tenants.

If the rent is due weekly in advance then the tenant doesn’t have to pay a month in advance, although if they want to pay monthly they’ll effectively have to pay a month in advance because they can’t have a negative balance in any week.

If rent is due a month in advance then it should always be paid when it is due or the tenant will be in breach. This is sometimes a problem with HB (or UC APA MPTL) on monthly tenancies because four weekly HB payments will gradually fall out of sync with the monthly rent, and by the 13th payment the tenant will be four weeks in arrears. The Pre-Action Protocol should stop social landlords from jumping the gun in these situations because it specifically provides for allowing for unpaid amounts of HB/UC which are expected (Para 2.6(c)).

But I’m sure their solicitors will sort it out. Legal Aid Housing solicitors are brilliant.

Oldestrocker
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I must agree with you Timothy about Legal Aid Housing solicitors.
However they are only engaged if the applicant asks for help. Yes there should always be someone at the Court on the day to offer help and assistance but many just don’t bother to seek that help.
I heard of one case a while back with someone that happened to be in arrears (couple of months). No help was asked for and the Court issued an eviction notice. The tenant actually tried to find alternative accommodation. It was only by chance that they went to the CAB for some help in finding new accommodation that the matter was taken back to Court and a suspended order was given.