Mense profits Overpayment

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    Tenant was occupy a property up to 31.3.09 when he was evicted. The landlord had a possession order which was granted in February 09. HB was in payment to the landlord but the overp-ayment is for the Feb – end of March period.

    The landlord was invited to to provide evidence of a charge equivalent to the rent for the period of the permitted tresspass but did not do so.

    The overpayment was recovered from the tenants ongoing benefit at his new address but his support worker has now got him to submit a late appeal which may be in time.

    The overpayment was recoverable from both landlord and tenant but we choose to recover from tenant because he was not paying the rent.

    Does the failure of the L/L to supply details of the mense profits alter the recoverability?

    Can the L/L be held liable?

    Are there any relevant CD’s


    I am not entirely sure why there is an overpayment at all in this situation. A landlord would normally be entitled to mesne profits up to the date of eviction, as compensation for the tenant using the property and preventing it from being re-let to someone else. That should normally be ordered as part of the possession order. You have paid it to the landlord, so everyone’s happy, right? Check the terms of the possession order to see whether the tenant has been ordered to make payments up to the date of eviction.

    It will be easier to comment on whom the overpayment is or is not recoverable from if you can explain how it happened – why was HB paid at all, what did you not know at the time that you know now? Why is the claimant not entitled to that HB?


    Please forgive me if I have misundersood your post but I am not clear as to how there was an overpayment if the tenant did not leave the property until the end of March?

    Mesne profits are counted as rent for HB purposes, and so if what you are saying is that the notice meant he should have left in February but stayed uintil the end of March and you are satisfied that he was there then the rent payable for the period when he should have left and the date he actually left is treated as mesne profits automatically (I believe) and so you do not need evidence to allow the HB.

    Was there a time limit from when the possession order was granted to the date the tenant had to leave?

    I would suggest that the landlord can be liable for the overpayment as he knew all the facts eg that he served a notice seeking possession and I presume knew that his tenant had gone as he was evicted.

    I am not so sure that deciding to recover from the claimant “because he was not paying the rent” is a valid reason for making him the target.

    I think you need to look again at the decision and decide whether there should be an overpayment at all, and if there is one – who materially contributed to the overpayment and/or failed to notify that there had been a change in circusmtances

    Kevin D

    I can see exactly why Stuart reckons there was an overpayment. His LA asked the LL for evidence of a charge. None was provided. In turn, a decision has been made that there was no charge. I see nothing wrong with that approach.

    Further, if there was in fact no charge, that was a notifiable change of circs by both the claimant AND the LL. In the absence of notification from either, the o/p would be properly recoverable from both. The LL doesn’t escape in these circumstances.

    However, if the appeal is accepted, AND if evidence is now provided of a charge, I wouldn’t waste time going to Tribunal. May as well revise.


    The possession order is relevant as depending on what type it was ( lso a possession order is only the first step – if the tenant does not leave then the landlord has to serve a notice to quit)

    section 8 or section 21 will determine the length of time the tenant can legally remain in the property

    It would have to be at least two weeks from the date of the order (at least this period of time is granted) or it could have been longer – so I suspect cancelling from February depending on the date of the possession order and the date of the cancellation may need checking

    I did not realise that a landlord had in effect to apply for mesne profits – I thought that if a tenant remained in the property – illegally – beyond the date they were required to leave that there was still a liability but that it was simply called mesne profits – which would mean that the landlord does not have to prove this

    Joanne Ross

    I understood that once a possession order came into effect that any monies paid for rent/HB after this date invalidated the possession order and in effect created a new tenancy.
    I was also thought the landlord had to prove mesne profits before HB could be paid, if not then we could be paying HB based on mense profits when there is no liability for any payment to be made for the right to occupy a property until the baliffs move in on the eviction date.

    In this case neither the landlord or tenant notified us that a possession order had been granted until he was evicted by the baliffs. That’s why the claim was cancelled back to the date the possession order became effective and we requestd proof of mense profits, which was never supplied, thus the overpayment stood and the decision to recover from tenant was made.
    Anymore inforamtion regarding this woudl be very helpful



    [quote:2c5bd692ff]That’s why the claim was cancelled back to the date the possession order became effective and we requestd proof of mense profits, which was never supplied[/quote:2c5bd692ff]
    I think you’ve done this the wrong way around. First you would ask for proof of a continuing liability, and only if there was no response could you terminate the award from the date of the order. As Kevin suggested, if you now have proof of any mense profit charges you may as well revise.

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