Seeking Possession - Occupier with basic protection

[malcia]

I applied for possession of a flat I own which is a self-contained annexe to my main residence - it was let using a resident landlord tenancy agreement (not a lodger agreement). The tenant has basic protection only.

The tenant's lawyer at the recent possession hearing submitted that I had not provided the Notice to Quit in the correct form (it did not contain important information for the tenant regarding their rights). Anyway my view is that as the tenancy was still in it's first 6 months fixed term I did not need to give a Notice to Quit but merely provide more than two month's notice that I would not be extending the tenancy. I am unsure whether such a notice should have included the important information for tenants.

Anyway I now await the formal submission of the defence (14 days) and then I will submit my reply within 7 days.

I cannot afford to get this wrong so should I:

1) Submit a new compliant notice (NTQ) just in case this one fails - she is in now in arrears by 2 months i.e., more than 21 days (grounds under the tenancy agreement to terminate). If so I'll need help to ensure I get this right. What notice period is required?

2) should I defend the original notice as I can then recover legal costs (per the tenancy agreement) so far court fees £355 and then costs to defend. Is it defenceable - Is there a prescribed format for notifying that I did not intend to extend the tenancy to go beyond the fixed term i.e., go to periodic?

[malcia]

Sorry I omitted to state that the TERM of the tenancy as per the agreement is as follows:

A term certain of 6 months commencing on the 1^st January 2018 and expiring 30^th June 2018.

Important: Because of the tenant’s lack of financial security the tenancy will end on 30^th June unless a new agreement is in place 2 months’ before the expiry of the agreement, notwithstanding either party giving written notice before that date

[mariner]

malcia, you are woefully misinformed.]
Fixed Term expiry date has no relevance to end of Tenancy.
If Tis in occupation at midnight on 1st July an SPT Contract will have arisen.
You will have to seek Court Repo unless T voluntarily vacates with vacant possession.

[Interlaken]

Malcia did you take a deposit off this tenant and protect it and provide the tenant with the terms and conditions of that scheme? Sounds like you failed to provide the tenant with the 'How to rent' booklet as well. Does the apartment have gas central heating or other gas appliances? If so you needed to have supplied a Gas Safety Certificate. Without even one of these items your Section 21 will always be invalid.

[jpkeates]

If the annexe is sufficient to be a dwelling house, it's probably going to be an AST regardless of what the agreement says.
You'd have to have evidence that it wasn't - that the tenant shared possession with you, or that they used "your" facilities in order to live.

I think you're going to need some proper serious legal advice, as I'd imagine that you're going to have to evict with section 21/ section 8 and may not have set things up in a way that allows that without a fair bit of work.

[malcia]

Malcia did you take a deposit off this tenant and protect it and provide the tenant with the terms and conditions of that scheme? Sounds like you failed to provide the tenant with the 'How to rent' booklet as well. Does the apartment have gas central heating or other gas appliances? If so you needed to have supplied a Gas Safety Certificate. Without even one of these items your Section 21 will always be invalid.

I do not need to comply with the LTA as this is a "Resident Landlord Tenancy" - the tenant has a self contained annexe integral to my main residence - the tenant does not share any parts of the dwelling with me but nonetheless I am resident landlord and the tenant has just basic rights

[malcia]

malcia, you are woefully misinformed.]
Fixed Term expiry date has no relevance to end of Tenancy.
If Tis in occupation at midnight on 1st July an SPT Contract will have arisen.
You will have to seek Court Repo unless T voluntarily vacates with vacant possession.

I realise that the tenant has the right to stay until I gain possession - the question is will the court uphold possession claim on the basis that it was a fixed term contract which expired - and as such I did not have to give notice to quit?

THE FOLLOWING WAS WRITTEN INTO THE TERMS OF THE AGREEMENT:
Important: Because of the tenant’s lack of financial security the tenancy will end on 30^th June unless a new agreement is in place 2 months’ before the expiry of the agreement, notwithstanding either party giving written notice before that date

[jpkeates]

I do not need to comply with the LTA as this is a "Resident Landlord Tenancy" - the tenant has a self contained annexe integral to my main residence - the tenant does not share any parts of the dwelling with me but nonetheless I am resident landlord and the tenant has just basic rights

If the property is in England or Wales, I think you're going to find that you're wrong about this, as everything you are describing makes me think that the tenant is on an assured shorthold tenancy.

You can't be a resident landlord if the tenant lives in a separate dwelling.

So I suspect that the tenancy didn't end, and that you haven't given valid notice.

[malcia]

If the property is in England or Wales, I think you're going to find that you're wrong about this, as everything you are describing makes me think that the tenant is on an assured shorthold tenancy.

You can't be a resident landlord if the tenant lives in a separate dwelling.

So I suspect that the tenancy didn't end, and that you haven't given valid notice.

I meet the criteria below and therefore the tenancy is not assured - the tenant has only basic rights.

http://england.shelter.org.uk/legal/...t_be_assured#9

A tenancy granted by a resident landlord cannot be assured.[34] There are certain conditions that need to be fulfilled before the resident landlord exception is established:

• the landlord granting the tenancy must have been an individual (ie not a company) and must have occupied (and continued to occupy throughout the tenancy) the property as her/his only or principal home
• if there is a change of landlord, the new landlord must also be an individual and continue to occupy the property as her/his only or principal home; the exception to this is that periods of non-residence are allowable following the sale of the premises or death of the landlord[35]
• if the building is not a purpose-built block of flats, the dwelling-house must constitute only part of that building, and the landlord must occupy another dwelling in the same building

[theartfullodger]

We know tenancy may not be AT or AST but their lawyer is right, they have right to go periodic, tenancy does end at end fixed term not does tenant have to leave.

What training done in landlord/tenant law?

[malcia]

We know tenancy may not be AT or AST but their lawyer is right, they have right to go periodic, tenancy does end at end fixed term not does tenant have to leave.

What training done in landlord/tenant law?

Just 5 years fighting my way through several tenancies - no formal training -

While I accept that the day after the fixed term tenancy ended it went periodic - I gave notice that I did not intend to renew the tenancy more than two month's before the end of the fixed term. In such circumstances my possession claim should be upheld?

[nukecad]

Even if you are a resident landlord (and I agree that you are) you still have to go through the court process to evict.

I also think that the tenants solicitor has not understood the resident landlord / basic protection situation fully and is relying on AST/SPT rules.
Probably because the tenant has not explained, or understood, his situation.

http://england.shelter.org.uk/legal/...s_of_occupiers

Eviction

The Protection from Eviction Act 1977 makes it unlawful for landlords of occupiers with basic protection to recover possession 'otherwise than by proceedings in the court'. The provisions of section 3 of the Protection from Eviction Act 1977 apply to all occupiers with basic protection. This means that if a tenancy or licence with basic protection has ended (either by notice or expiry of the fixed term) and the occupier continues to live there after termination, the landlord can only evict by obtaining a court order. However, the landlord does not have to give the court a reason to evict, so someone with basic protection has very limited security of tenure.

As you don't have to give the court a reason to evict in these circumstances then I believe that any issues with S21 or any other NTQ paperwork are irrelevant.

[theartfullodger]

The experts, Shelter Legal, on how a landlord may evict an occupier with basic protection...
http://england.shelter.org.uk/legal/...of_occupiers#3

& note...

Eviction

The Protection from Eviction Act 1977 makes it unlawful for landlords of occupiers with basic protection to recover possession 'otherwise than by proceedings in the court'.[11] The provisions of section 3 of the Protection from Eviction Act 1977 apply to all occupiers with basic protection.

Eviction any other way would be a civil & criminal offence: And yes, landlords can & have gone to jail over such matters.

[malcia]

The experts, Shelter Legal, on how a landlord may evict an occupier with basic protection...
http://england.shelter.org.uk/legal/...of_occupiers#3

& note...


Eviction any other way would be a civil & criminal offence: And yes, landlords can & have gone to jail over such matters.

No problem - I accept the need to seek possession through the courts - The question is will it succeed based on the fixed term expiry - [QUOTE=nukecad;n60371] I don't have to give a reason to evict as it is a fixed term agreement which has expired.

[theartfullodger]

In your shoes I'd not risk no NTQ, but issue a shiny new NTQ of at least 28 days (as per PfEa ) or 1 month (if monthly rent payments), worded in line with the clauses of the agreement and then, on expiry, apply to court.

Did you look at Shelter's link?

Periodic occupiers


An occupier with basic protection who has a periodic agreement is entitled to written notice to quit if her/his landlord wants to evict her/him. For information about the requirements for a notice to quit to be valid see Notices to quit: Landlords.

(I take it from your earlier post that by the time the court hearing you referred to happened it was by then periodic...)