This is a good case for showing a number of issues relating to granting a tenancy, possession proceedings, notice to quit from a tenant, non payment of rent, witnessing of deeds, and a bit of double rent for good measure.

Every single piece of paperwork, from application forms to notices to tenancy agreements are exactly those found on our website available free of charge for Guild members and this case illustrates the importance of good paperwork.

Thompson v Thorpe and Taylor-Thorpe Leeds County Court 13 December 2012 2QT33017

And yes, the Thompson is me if you were wondering.

Background

On 1 July 2011, Miss Carlene Taylor-Thorpe and Jane (not her real name as wasn’t a party to the case) applied for a tenancy for a property at 109 Franklin Road, Harrogate.

In the application for accommodation form, information regarding a home owning guarantor was provided which is something we require for all residential lettings.

We did the usual checks including checking that the guarantor was a home owner which he was and the credit checks all came back fine.

The tenancy was granted from 8 July 2011 for a fixed term of three months at a rent of £450.00 per calendar month. The father of Carlene Taylor-Thorpe namely Mr Neil Thorpe was the guarantor and signed the deed of guarantee on the same date. The deed was witnessed by Jane, the other tenant.

The first months rent was paid on signing and the next two months rent were paid relatively on time. However, except a payment of housing benefit in November of £186, no payments were made from between October 2011 and March 2012 when finally evicted!

Notice to quit

On 18 November 2011, one of the joint tenants (Jane) gave us a notice to quit which expired on 7 January 2012. This was a valid notice to quit because it was (a) at least a calendar month in length and (b) expired the day before the rent was due.

There was no notice to quit from Carlene Taylor-Thorpe but nevertheless, the notice to quit received ended the entire tenancy because a notice to quit from one ends the tenancy for all Hammersmith & Fulham LBC v Monk [1991] UKHL 6.

We’re not entirely sure when Jane vacated but to the best of our knowledge it was a bit before expiry of the notice and so left Miss Taylor-Thorpe in occupation on her own.

Requests for payment from guarantor

In October when the rent wasn’t paid for the first time, the guarantor was contacted who stated that he would only pay once the tenants had been evicted by us. As one can perhaps appreciate, we weren’t impressed by being told when he “chooses” to pay rather than by following the agreed and signed guarantee form. The guarantor was reminded that this would be an expensive option (to essentially hold us to ransom and dictate when he pays) but nevertheless he decided to take that route and refused to pay.

Proceedings part 1

As we never agreed with the guarantors suggested payment schedule, a pre-action letter was issued and then proceedings commenced for £715.40 representing October and Novembers rent. (In all honesty, we truly thought theses proceedings would let the guarantor know how serious we were and he would then pay but it didn’t quite work like that!)

A default judgment was obtained for the full amount in our favour against the guarantor.

Possession proceedings against tenant

A section 21 notice was served on the tenants at around the same time as the notice to quit was given to us, so upon expiry, there was going to be multiple options for possession (rent arrears, notice to quit from tenant and section 21 notice).

Importantly, once the notice to quit from Jane had expired, we never demanded “rent” from the remaining occupier (after expiry of a notice from a tenant you must never ask for rent and only seek mesne profits or damages for use and occupation). In addition, and equally importantly, we treated Miss Taylor-Thorpe as a trespasser because the tenancy had now ended. Because we were treating her as a trespasser, possession was promptly sought as soon as the courts came back to work in January 2012.

Possession was ordered to be given on or before 21 February 2012. As Miss Taylor-Thorpe remained in occupation on 22 February 2012, a request for warrant of possession of land was issued.

The bailiff was scheduled to attend on 20 March 2012 at 10.15am.

On 19 March 2012 (the day before the bailiff), the defendant Miss Taylor-Thorpe filed an application with Harrogate County Court seeking “… suspension of notice of execution … requesting a 42 days suspension …” (This was despite not paying any rent / mesne profits since October!)

A hearing was ordered for 20 March 2012 which we attended and pointed out that as this was an application seeking to postpone possession under section 89 Housing Act 1980, it was impossible to have a hearing to even discuss the issue because such a hearing must be held “before the date on which possession is to be given up” (in this case therefore the hearing had to be held on or before 20 February 2012) [Civil Procedure Rule 55.18].

The defendants application was refused and the bailiff attended. The property wasn’t in the best state and condition we’ve ever had one left! (The bailiff commented it was one of the worst he’d seen for ten years).

Double rent

Where a notice to quit has been given by tenants and they don’t vacate at the end of the notice, a landlord is entitled to “… double the rent or sum which … should otherwise have paid … at the same times and in the same manner as the single rent or sum, before the giving such notice …” [section 18 Distress for Rent Act 1737].

In order for a landlord to be able to claim the double rent, the notice given must be valid and the landlord must treat the remaining occupiers as trespassers [Oliver Ashworth (Holdings) Ltd. v. Ballard (Kent) Ltd. [1999] 3 W.L.R. 57].

One of the questions that arose in this case was whether a landlord was entitled to double rent where one of several tenants had given notice even if the others were not aware nor party to the notice to quit.

For the periods 8 January 2012 (after expiry of the notice to quit) to 7 April 2012 (after the bailiff evicted on 20 March), we claimed double the rent so we submitted that an amount of £900.00 per calendar month was payable as mesne profits (damages for use and occupation) in this case.

Guarantor payment

After the eviction, the guarantor made a payment of £800.00 which was used to clear the first claim and interest. The remaining £20.20 was deducted from the rent remaining unpaid.

Money claim part 2

After a final debt amount was known after the eviction, proceedings were commenced against (1) Mr Thorpe, the guarantor and (2) Miss Taylor-Thorpe who had remained in occupation until attendance by the bailiff for the amount of £3,435.00 which included all the rent / mesne profits due (including the double rent) and a few fees that hadn’t been paid less of course the amount that judgment had already been obtained previously.

A default judgment was obtained for the full amount.

We thought it strange that we hadn’t heard anything from the guarantor despite now two county court judgments against him so we carried out a trace using our tracing service and according to the information, found that he had recently moved to a different property.

We therefore wrote to the guarantor at the new property which led to him making an application to set aside the judgment.

Set aside

The guarantor defendant claimed he hadn’t received any of the papers due to being at another address for the past 2 years. This was despite signing the guarantee form which included the address we used and all the application forms at the time of granting the tenancy containing the address we used for issuing the clam form.

At the set aside hearing, it was basically about to be refused to be set aside because we only had to show it had been served on “the last known address” and there wasn’t really any great prospect of success but nevertheless, we agreed to it being set aside due to the importance of the issues in question in particular the claim for double rent where only one of several tenants gave notice.

Therefore, with consent, the default judgment was set aside and the defendant ordered to file a defence within 14 days.

The defence

There were basically four elements to the defence:

  1. That the guarantor deed was invalid because the witness was not “independent” and a witness couldn’t be a party to the instrument (it had been witnessed by one of the joint tenants).
  2. At no time prior to the signing of the deed had the defendant been given a copy of the tenancy agreement. In addition, he claimed to have failed to bring his glasses so wasn’t aware what he was signing (he claimed that his daughter had told him he was only there to pay a deposit and had made no mention of being a guarantor)
  3. That double the rent was not applicable because the Distress for Rent Act 1737 did not apply in this case (hence the point about notice from one was raised) and;
  4. Claims were made by the defendant about discussions relating to liability and how long possession would take.

The decision

The final hearing was on 13 December 2012 in the county court at Leeds combined court and was set for half a day.

On the points in order of the defences pleaded the following was decided by the court:

1. Deed invalid

There is no requirement for the witness to be “independent”. The requirement is that the witness not be a party to the instrument itself. The guarantor deed was witnessed by one of the tenants but they were a party to the tenancy agreement and NOT the guarantor agreement made as a deed. Therefore, the guarantor agreement was valid.

2. Tenancy agreement not previously provided

Let the buyer beware” … The guarantor should have walked away if unsure. We always allow unlimited time at the signing appointments and never make appointments after so tenants and guarantors can take as long as necessary to read the documents at their own pace. There is no requirement whatsoever to provide a copy in advance of the meeting. They could have asked prior to the meeting. Interestingly, the court commented that there was even less a defence here because the guarantee was a box within the tenancy agreement itself i.e. it was sort of part of the tenancy. Recently we have moved to separate guarantee forms but this might be worth reconsidering.

3. Double rent not applicable

The court held that the double rent provisions also apply where one of joint tenants gives notice even without the concurrence of the other tenants. Therefore, as long as the notice is valid and the landlord treats any remaining occupiers as trespassers (so only accept mesne profits and seek possession promptly) then double the rent is payable upon expiry of the notice to quit if and for so long as one or more persons remain in occupation [Oliver Ashworth (Holdings) Ltd. v. Ballard (Kent) Ltd. [1999] 3 W.L.R. 57 followed].

4. Discussions that were had with the claimant about liability

The defendant guarantor claimed that at the signing of the agreement back in July 2011, he had asked myself, the claimant, how long it would take to evict his daughter should they not pay and how much his liability would be (strange because in the same breath he was saying that he had forgotten his glasses and didn’t know what he was signing!) This was totally untrue because as I pointed out, in the 20 or so years I’ve been letting property, no father acting as a guarantor has asked in the same room as his daughter questions about how quickly we would evict his daughter.

It is entirely accepted such a conversation took place because this was the conversation we had when we requested the money in October / November. His case was that he was going to pay when we had evicted which we didn’t accept. At that time we briefly explained a rough procedure i.e. 2 months notice, then a few weeks for a court order etc. In addition and in any event, the length of time possession took was as a direct result of the actions of his daughter.

The court didn’t place too much weight on the alleged hearsay evidence from the defendant and the court preferred our version of events on the balance of probabilities. In any event, it wasn’t really an important issue due to the guarantor agreement being made as a deed and had already been found as a fact to be valid.

Order

The set aside of the judgement was removed so the default judgment had effect again. The guarantor (and former tenant) was ordered to pay a total of £4,101.75 including court fees and interest within 28 days.

Final comment

This case just shows that if the paperwork is set up properly at the beginning, then it can be worth pursuing the debt and you should normally be successful in obtaining judgment.

Of course, we haven’t been paid yet but all we can do is keep chipping away until payment is made. At the time of granting the tenancy he was a home owner so a charge can be placed against the home (although we’re not sure that the new address is owned just yet). Ultimately, there are a number of things that can be done if he doesn’t pay including the bailiff to seize goods, charge on property and an attachment of earnings but it won’t be easy.

Who’d be a landlord?!

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