Possession after Tenant gives notice

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    Possession after Tenant gives notice

    Hi all,

    I've been doing a lot of research but am unable to find an answer to this question - perhaps there is a landlord on this forum who can point me in the right direction.

    One of my joint tenants in a (assured shorthold) periodic tenancy gave notice to quit, which we have assumed is valid and therefore ends the tenancy for both tenants, The notice date has now gone by so the tenancy has ended, but the second tenant has held over, refuses to discuss a new (sole) tenancy agreement and for good measure is not paying the rent! The question is how to get this tenant out of the property.

    The tenant(s) gave notice, so there was never a Section 21 or Section 8 notice. The remaining occupier apparently isn't legally a trespasser. Accelerated possession assumes there was a Section 21 notice et al, which of course there wasn't. So I'm stuck. Do I simply file a claim for possession using the non-accelerated procedure (forms N5 + N119)?


    #2
    There are only 2 routes, either the notice to quit was not valid, as one has remained in the property, so the tenancy hasn't ended. Or the tenancy has ended and now you have a squatter in the property.

    I would side on the fact that the tenancy hasn't ended and you need to follow the process of serving notice on both tenants to gain possession.

    Comment


      #3
      Thanks for your thoughts on this ash72.

      I'm convinced the NTQ from the joint tenant was valid, and a valid NTQ from one tenant ends the tenancy for all joint tenants, so I'm happy that this is the case. What's supposed to happen is that a new tenancy is created for the remaining tenant, though I don't want this to happen by default (if I do nothing). But he can't be a trespasser, and I can't serve notice on both tenants because of the valid NTQ, and I can't ignore the NTQ because it was valid. So very frustrating....

      Comment


        #4
        The remaining occupant is a trespasser and can be removed without a court order.
        This used to be confirmed on the Shelter England website, but I can't seem to find that page right now.

        Obviously there can be no violence or threats involved.

        An ex-tenant can't be a squatter because to be a squatter your initial entry to the property has to be a trespass.
        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


          #5
          Thanks jpkeates. I did a search at Shelter and came up with this which fits my case, and which seems to confirm what you're saying, but I couldn't really decode that second paragraph, which seems to contradict the first
          Payments after tenancy ends

          The information on this page will apply where the former tenant or another occupier remains in the property as a trespasser, for example, where a:
          • joint tenant remains in occupation after the expiry of a valid notice to quit served by another joint tenant.[1]

          Note that a tenancy that is protected by the Rent Act 1977, Housing Act 1985, Housing Act 1988 and Housing Act 1996 continues with the same security of tenure after the date a possession order takes effect, regardless of whether the possession order is outright, suspended or postponed.[2] The tenancy will end only when the order is enforced (ie the tenant is evicted) or the tenant leaves of her/his own accord after the possession order is made. The tenant does not become a trespasser and rent is payable until the tenancy ends.[3]

          Comment


            #6
            Yep, that's the page I couldn't find.

            The final paragraph is making a different point - which is that a possession order doesn't end a tenancy on its own, so the tenant isn't a trespasser after the court makes a possession order.
            But that doesn't apply to your case, becase you don't have a possession order.

            Valid notice by a tenant in a periodic tenancy ends the tenancy and, as long as you don't accept any more rent, no new one can begin.
            So the tenant not paying the rent is actually a plus.

            Point out the page from Shelter, because her situation is worse than she thinks, because she owes mesne profits which if you write to the tenant demanding the return of your property are double the value of the rent from the point that demand is served.
            Shelter just say they're equivalent to the rent, but they're being somewhat selective in their case citation.

            Just for the avoidance of doubt - you can't just assume notice is valid, it either is or it isn't.
            If it isn't valid, the tenancy hasn't ended, unless you confirmed to both tenants that you had accepted it as valid notice (which makes it valid).
            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


              #7
              Isn't double mesne profits only applicable if the landlord has already entered into a new tenancy agreement with another tenant?

              Comment


                #8
                Thank you ash72, jpkeats and ChrisDennison. You've really given me something to start with here.

                Comment


                  #9
                  Originally posted by jpkeates View Post
                  The remaining occupant is a trespasser and can be removed without a court order.
                  This used to be confirmed on the Shelter England website, but I can't seem to find that page right now.

                  Obviously there can be no violence or threats involved.

                  An ex-tenant can't be a squatter because to be a squatter your initial entry to the property has to be a trespass.
                  This isn't correct, there is no legal difference between "squatter" and "trespasser", they're synonyms. But in order to be declared trespass the person must have entered without permission (didn't happen), or know, or reasonably should have known they are trespassing (you could probably argue this in Court). The bit that confounds you is that, specifically, someone holding over after a lease cannot be deemed a trespass. Subsection 2 of section 144 of the Legal Aid and Sentencing and Punishment of Offenders Act (LASPO) is the relevant legislation for this.

                  Basically, it really doesn't matter because the process is the same.

                  You think they're a trespasser holding over the property - Obtain a Court order and instruct bailiffs
                  They're still a tenant but you want to remove them - Obtain a Court order and instruct bailiffs

                  You'd have a difficult case filing for trespass, you certainly wouldn't qualify for an IPO, I'd suggest you file s21/s8 and go through normal channels.

                  You can't file for possession without valid notice, which you don't have. You need to issue s8 and then file N5/N119 if you want to go that route, at which point you might as well have filed s21.

                  You could always try N5/N119 claiming they issued notice, but if for any reason they argue that the notice wasn't valid you might get your claim dismissed and slapped with costs - your call but I'd consult a solicitor, basically.

                  Comment


                    #10
                    Originally posted by hybrice View Post
                    The bit that confounds you is that, specifically, someone holding over after a lease cannot be deemed a trespass. Subsection 2 of section 144 of the Legal Aid and Sentencing and Punishment of Offenders Act (LASPO) is the relevant legislation for this.
                    I'm not sure that the term "trespasser" is that tightly defined in law is it? Section 3A (6) of the Protection from Eviction Act 1977 does seem to concede that a trespasser may include a former tenant still residing.

                    Comment


                      #11
                      Pleae complete and paste https://forums.landlordzone.co.uk/fo...om-new-posters

                      Comment


                        #12
                        Originally posted by DPT57 View Post

                        I'm not sure that the term "trespasser" is that tightly defined in law is it? Section 3A (6) of the Protection from Eviction Act 1977 does seem to concede that a trespasser may include a former tenant still residing.
                        I'd say it is, Trespass to land is clearly defined in both tort and criminal law. The key difference between "trespasser" and "squatter" is their intent to remain, otherwise, they're identical.

                        3A (6) doesn't apply, this person was not granted a temporary expedient lease and did not enter as a trespasser. It also doesn't concede that. To my understanding, this clause is to protect landlords when allowing ex-tenants re-entry to collect belongings and such and doesn't apply if they never left, have been wrong before though.

                        Comment


                          #13
                          Originally posted by hybrice View Post
                          This isn't correct, there is no legal difference between "squatter" and "trespasser", they're synonyms.
                          They're not synonyms.
                          All squatters are trespassers, but not all trespassers are squatters.
                          A squatter is a trespasser who lives where they trespass (or intends to).

                          The bit that confounds you is that, specifically, someone holding over after a lease cannot be deemed a trespass. Subsection 2 of section 144 of the Legal Aid and Sentencing and Punishment of Offenders Act (LASPO) is the relevant legislation for this.
                          That legislation says that someone holding over is not a squatter
                          It absolutely doesn't say that they are not a trespasser.

                          To be a squatter you have to enter as a trespass, which, for someone holding over after a lease isn't the case.
                          That person is a trespasser because their permission to occupy has expired, but they can't be a squatter because they entered the property with permission.

                          Basically, it really doesn't matter because the process is the same.
                          The process is not the same.
                          You can simply exclude a trespasser and you can't do that with a squatter.

                          You think they're a trespasser holding over the property - Obtain a Court order and instruct bailiffs
                          They're still a tenant but you want to remove them - Obtain a Court order and instruct bailiffs
                          If someone is holding over having given notice as a tenant, they're no longer a tenant.
                          A tenant is someone who has a lease, and they don't - the one they had has ended.
                          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
                            It's worth noting I have personal experience of this situation, having removed a person who had permission to enter the property (given by the joint owner) but was deemed a squatter in Court and removed by possession order. See my first post if you want details. That said, not a solicitor, only have my personal experience of going through this in Court as LIP.

                            Good input, I'd say in response:
                            1. I said "Legal" difference, which there isn't, they're the same, legally and the processes for removing them are the same. Though I agree with your generally-accepted definition and even put it in my own words in an above post.
                            2. By your own argument, if they're intending to live there, they're a squatter not a trespasser. So it applies.
                            3. You do not have to enter as a trespasser to squat in a property, entering as a trespasser is only one of 3 criteria for squatting, all of which are not required to be fulfilled. You can know, or reasonable should have known you're trespassing AND intend to remain and still be a squatter.
                            4. The process is the same, for trespass you file N5 with N121 particulars of the claim rather than N119 for rental. You should in no way attempt to "exclude" them, as you'd open yourself up to massive exposure if it turns out their notice was invalid, you're then guilty of unlawful eviction. As I say, get a Court order, instruct bailiffs.
                            5. You're correct, if the notice is valid, which we don't know if it was. So suggesting they're defacto a trespasser and should be excluded without all the details to be 100% surefooted legally is risky, bordering careless.

                            Comment


                              #15
                              Originally posted by hybrice View Post
                              Good input, I'd say in response:
                              Thank you, nice to be able to have a reasonable disagreement!
                              1. I said "Legal" difference, which there isn't, they're the same, legally and the processes for removing them are the same. Though I agree with your generally-accepted definition and even put it in my own words in an above post.
                              Legally they're not the same.
                              Squatting is quite precisely defined and the process for exclusion also legislated.
                              Most of the law relating to trespass is based on common law and cases.

                              You can be a trespasser without being a squatter, so I don't see how they can be "the same".
                              There are obviously close similarities - your response in #5 below indicates that you accept that you can exclude a trespasser (even though you wisely advise against it) which you can't do with a squatter - which means (I politely suggest) that they're not legally identical.
                              2. By your own argument, if they're intending to live there, they're a squatter not a trespasser. So it applies.
                              If you mean an ex tenant holding over intends to live there and that makes them a squatter, then no, because section 1a has already excluded them, so s1c doesn't apply.
                              My overriding point is that s144 is entirely concerned with squatters and its references to trespassers relate only to squatters (who, I think we agree are always also trespassers).
                              3. You do not have to enter as a trespasser to squat in a property, entering as a squatter is only one of 3 criteria for squatting, all of which are not required to be fulfilled. You can know, or reasonable should have known you're trespassing AND intend to remain and still be a squatter.
                              Yes you do have to enter as a trespasser to squat in a property.
                              There are two other conditions, but they are all required, so satisfying the other 2 criteria is not enough.

                              I accept that you don't have to "only" enter a property as a trespasser to be a squatter, because that's essentially my point.
                              All squatters are trespassers, not all trespassers are squatters.
                              Squatters are a sub-set of the set of trespassers.
                              4. The process is the same, for trespass you file N5 with N121 particulars of the claim rather than N119 for rental. You should in no way attempt to "exclude" them, as you'd open yourself up to massive exposure if it turns out their notice was invalid, you're then guilty of unlawful eviction. As I say, get a Court order, instruct bailiffs.
                              I am not going to suggest that this isn't excellent advice and your greater personal experience means that I suggest that this is the path to follow.
                              I have no such experience.

                              Simply for the sake of argument, though, if a tenant serves notice and a landlord accepts it, that basically makes it valid.
                              Legislation and contract are there if there's a disagreement about the terms of the notice, but the two parties are perfectly able to come to their own arrangements to end a tenancy.
                              An issue might well arise if the tenant gave a vague notice and the landlord gave a vague acceptance - there's a wealth of difference between "I'm leaving tomorrow"/"Good to know" and "I'm leaving tomorrow","Great, we agree that your tenancy ends on 6th August 2020".
                              And given that this is a joint tenancy, greater care is needed, because there is another person involved so any agreement about notice has to be agreed by that person.
                              5. You're correct, if the notice is valid, which we don't know if it was. So suggesting they're defacto a trespasser and should be excluded without all the details to be 100% surefooted legally is risky, bordering careless.
                              Couldn't possibly disagree with any of that.
                              The occupier holding over might be more likely to leave if the weakness of their situation was made known to them.
                              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

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