Help please - friend cannot get these lodgers out of home - do they have a tenancy?

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    Help please - friend cannot get these lodgers out of home - do they have a tenancy?

    Please can anyone with housing knowledge advise as my friend is basically being pushed out of his own home.

    My friend decided to rent rooms out in his house to two individual guys - one bedroom each and use of kitchen etc. He thought they were lodgers but in the worst case scenario licensees who he could ask to leave on a month’s notice. They paid a deposit. All was fine for 6 months. My friend then went overseas for 9 months to look after a sick parent. He left the key with relatives, so they could keep an eye on the property and check on his stuff as he left most of his belongings behind and had his own locked bedroom there.

    This is when things started to go wrong. The lodgers continued to pay rent but refused to let his relatives in to look at the property and would not allow estate agents round to value the property when my friend decided to put it on the market, so he was unable to sell it. They also took it upon themselves to get the electricity and gas account put into their own names without permission. I "believe" they told the council that they were living there on their own.

    My friend is now back and wants them out of his house. He has tried to obtain advice on the position, but most helplines are there to protect tenants from rogue landlords and not the other way around. He is now being forced to live in his own house with people he does not want there, and they can be quite aggressive towards him.

    He has spoken to the local council who told him there is nothing he can do about this as he was out of the country for over 6 months. I suggested that they would tell him that as they do not want to be left with 2 more people to house. He also spoke to a solicitor who is supposed to specialise in tenancy law but what he has been told sounds a bit off to me. He was told that because they have been in the property for over a year and he was out of the country for more than 6 months the licence automatically becomes a tenancy. He was told he needs to serve a section 21 notice. I thought this was only used in the case of assured shorthold tenancies which is not the case here and I did not think it was possible for an arrangement to morph into an ast. It may be key to this discussion as to whether they had exclusive possession of the house. To begin with he lived there with them, then when he went abroad they still never had full possession of the whole property (he always had a bedroom there) and it was intended that his relatives could pop in to see if everything was ok and to stay in his room if they wanted but the lodgers always refused them entry. Surely the lodgers should not be able to argue that they had exclusive possession of a property where they stopped others gaining authorised entry or is it the fact that he was out of the country that gives the lodgers exclusive possession (although as I said above he still had his own locked room). He has also been told he now needs to go to the expense of getting several things associated with a tenancy such as a rented property licence from his borough in order to let the property (and until then this arrangement that he does not want to even exist puts him at risk of a £30,000 fine for illegal letting) and things such as gas safety certificates.

    Does any of this sound right? Has anyone got any advice on this or could they perhaps point me in the direction of a help line that might help? The citizens advice bureau said they cannot help him as they are there for tenants and not landlords (odd as I would have thought he was still a "citizen") and Shelter said the same thing. There must be a way for him to get these men out of his home and who are basically holding him to ransom. Thanks.

    #2
    Were there locks on all the bedroom doors?

    Comment


      #3
      And when he was abroad looking after parents, where did his post go? Was he still registered to vote at the address? Did he pay council tax/was it in his name?

      Comment


        #4
        yes locks on their room (just found out the 2 guys who are brothers share their room) although my friend still kept a key and there is a lock on his bedroom too. Post continued going to this address. He was still registered to vote at the address and I understand that his name was the only one on the council tax throughout this time and he paid this and he never applied for a single person discount. Thanks.

        Comment


          #5
          I don't think your friend's position is good.

          Lodgers are l licensees, but I suspect that there is now a tenancy relationship.

          Comment


            #6
            The problem is occupants may (understandably) claim he no longer lived there so not resident landlord so tenancy not lodgers.

            And if locked out may claim harassment, illegal eviction, both criminal offences landlords can and have - rightly - gone to jail & fines.

            And currently any s21 will be invalid - unprotected deposit, no GSC or EPC served....

            Dunno.
            I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

            Comment


              #7
              Originally posted by theartfullodger View Post
              The problem is occupants may (understandably) claim he no longer lived there so not resident landlord so tenancy not lodgers.

              And if locked out may claim harassment, illegal eviction, both criminal offences landlords can and have - rightly - gone to jail & fines.

              And currently any s21 will be invalid - unprotected deposit, no GSC or EPC served....

              Dunno.
              But can an AST just be created by conduct? I understand that tenancies can be created but can it be an AST?

              Also if it was an AST then why did they let him back into his property? Surely this conduct suggests that the AST has come to an end? Thanks.

              Comment


                #8
                IMO

                The best and pretty much the only clean solution is for your friend to refund deposit etc, and form an official AST with his ex-lodgers, make it 6 months and issue everything like deposit certificate, EPC, gas/electric certificate right to rent etc. the ex-lodgers may not be happy to sign, so prepare to use a more favourable term (lower rent?) for the moment.

                This should clear up a lot of issues and allow your friend to potentially issue a S21 in 6 months time, ideally he should have done this before planning to move out in the long term.

                Comment


                  #9
                  ASTs pretty much have to be created by default, otherwise all landlords would only issue licences. Basically, if it looks like an AST, it is one, whatever the paperwork says.

                  Comment


                    #10
                    AST is default tenancy type (Housing Act 1988), can be verbal.
                    I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

                    Comment


                      #11
                      I think locks on the bedroom doors unfortunately means he has inadvertently created an AST, plus being away for that length of time. Allthough he did retain a key? He is a bit stuffed. If he cant persuade them into a new ast with all the correct documentation . . .. How relevant is the fact that he has moved back in? I'm not sure. Either way his only option is to persuade them into a new tenancy. Or pay them to leave. I don't think there is a definite answer. Anybody?

                      Comment


                        #12
                        I'm of the opinion that they were lodgers while he was living there, but when he left to live elsewhere for 6 months they became tenants with a verbal AST.

                        If you think about it then it has to be that way.
                        Otherwise a dodgy LL could try to get around tenancy law by letting to 'lodgers' as a resident LL, but only actualy living in the property themselves for the first week/month before moving out.

                        The fact that he kept a locked room there is irrelevant, as is the 'relative popping in' - if he was not resident then they can't be lodgers so it must be a tenancy and they now have the same rights as any other tenant.

                        His moving back in is also not relevant now, you can't change an AST to a lodger agreement just by moving in. (Again if you could then dodgy LL's everywhere would be doing it).

                        Comment


                          #13
                          Your friend needs to use a solicitor to resolve this issue.

                          If a tenancy arose (which I think is questionable), he's already committed an offence by moving back in.
                          As the property remained his residence, I suspect he's still resident, even if he wasn't physically present (supported by the locked room).

                          If a tenant is sent to prison, their AST remains in place even though they are not living in the property, which is a requirement of an AST. So residence is a flexible concept.

                          It would be helpful if the friend had continued to pay the council tax (as that would indicate that the occupants were not joint tenants at least).

                          When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                          Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                          Comment


                            #14
                            I understand he did continue to pay the council tax himself throughout the whole period.

                            Comment


                              #15
                              As JPK says, he needs to find a solicitor who is willing to take this on. That may not be easy as the outcome is far from certain. There are arguments on both sides of this but he should be aware that if it goes to court and he loses, it will cost him a lot of money. On the other hand the same could be said for the two brothers, who may also not want to take the risk. My guess is they are waiting for him to make them a financial offer. An LBA from a solicitor and a clear intention to go to court with this may make them lower their expectations to the point where he could make a reasonable without prejudice offer.

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