Solicitors Sheffield

Can a landlord evict a tenant without a court order?

No and be aware that, whatever the tenant has done, it is a criminal offence for a landlord to evict a tenant without a court order.

How long does a tenant have to be in arrears before a repossession order be granted under the Housing Act 1988?

A repossession order can be granted under the Housing Act if the tenant owes more than two months or eight weeks rent.

What’s the procedure?

Before starting court proceedings a landlord must first correctly issue a Section 8 Housing Act 1988 notice. This notice will give the tenant 14 days in which to respond. Once the Section 8 notice has expired, if the tenant has not paid part or all of the money due or has moved out of the property then a landlord can then apply for a hearing at a County Court.

Can the tenant defend the proceedings ?

Yes and it is not that unusual for a tenant to dispute that 8 weeks rent is in arrears by alleging a right of set off or breach of the tenancy agreement by the Landlord, commonly citing disrepair

What happens once the court has made a repossession order ?

Once a possession order is made, it is usual for the Order to give the tenant  several weeks to leave and sometimes the tenant still does not leave. Even then, the Landlord cannot repossess him/herself and the Landlord may have pay for and arrange Court bailiffs to enter the premises to remove the tenant which causes further delay as there can be a waiting list for bailiff time at the court. It can take weeks !

What is the basic meaning of duress and undue influence in contract law?

Duress and undue influence covers situations where a party to a contract has effectively been forced into signing the contract.  Under the law, these contracts are invalid as agreements which change one’s legal position should be entered into and ended freely.

How is duress defined?

Duress occurs where someone is forced to enter into a contract as a result of violence or unlawful constraint.  The actions must be of such that the person had no choice but to enter into the contract.  If, for example, I was told to sign a contract whilst having a gun pointed at me head, clearly I would have no choice but to sign the contract.  A definition of duress is given in DSND Subsea Ltd v Petroleum Geo-Services ASA:

“The ingredients of actionable duress are that there must be pressure, (a) whose practical effect is that there is compulsion on, or lack of practical choice for, the victim, (b) which is illegitimate, and (c) which is a significant case inducing the claimant to enter into the contract.”

Do threats against property count as duress?

Ordinarily, threats against property are not counted as duress.  However, in Sibhoen v Sibotre, threatening to burn a house down or destroy expensive artworks were defined as duress suggesting that the severity of the threat, type of property involved and potential consequences (setting a house on fire, for example may lead to death of the occupants) are relevant factors in determining whether threats against property can be considered as duress.

What is economic duress?

The basic requirements of duress still apply, that is a person must be forced into a contract.  Economic duress involves threats to one’s commercial interests.  In DSND Subsea Ltd v Petroleum Geo-Services ASA, threatening to breach an existing contract could be an example of duress. The “rough and tumble of the pressures of normal commercial bargaining” gives an idea of what will not be considered duress.

What is undue influence?

Undue influence deals with cases where the threshold for duress has not been reached.  However, there must be some sort of pressure of a certain characteristic in the relationship which explains why someone entered into a contract not entirely of their own free will.  In a relationship where there is a party who is dominant by virtue of their knowledge or economic power, if the weaker party gives a substantial gift or enters into the contract with the dominant party, the courts will ‘presume’ that undue influence guided the weaker party’s decision.  This is known as ‘presumed undue influence’ and to argue against undue influence, the dominant party may, for example, show that the weaker party sort independent advice before making the decision.  A good example of this type of relationship is between a bank and its customers.