Alternative ways to enforce a Peaceable Eviction

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    #16

    It would be much more sensible to let the "lead" tenant to sort out his own mess, as it was his judgement to allow the problem lodger into the property.
    And that is what is happening, but again I cannot see why I would not be permitted to 'act in support of the "lead" tenant'.

    You probably need to be more concerned what might happen if the problem lodger grasses you up for operating an HMO.

    A property that is compliant with the HMO Management Regulations, does not automatically confer it requires a Licence ... a property rented out to 3 people who are not from one 'household' is defined as an HMO under the Housing Act, Mandatory Licencing starts at 5 people, an HMO with 3 people would only require licencing where the council has brought in Selective and Additional Licencing to cover that, and this property does not require Licencing.

    I have to agree that this all sounds a borderline arrangement, to say the very least.
    Again ... Why should supporting a lead tenant in this manner bring into question the Landlord to Tenant (AST)) and Tenant to Lodger (Excluded Occupier) - contracts and agreements in place.

    If the tenant has a self contained flat in the building, then I believe the "lodgers" will not be licensees

    I think you are inferring that I live somewhere in the building, ie in another one of the flats, I do not reside anywhere in the building ... and so the Lodgers are Licencees, not tenants.

    Landlord needs to serve NTQ then proceed through court.
    If they were tenants, but they are Licencees, so no need for a court order.

    Today is Sunday, I am waitnig for a call from the Tenant to tell me the Lodgers mate has parked his car on the drive again, last weekend they cranked up the stereo, started working on hos car, with them both drinking and partaking in drugs, all to the annoyance of the neighbours and my other tenants on the building ... and intimidating the other lodger, who's room over looks the drive.
    What is the position if the lead tenant calls the Police with a view to removing the visitor, will they simply caution them and state its 'Civil' and he too is just a tresspasser ? and leave them there, how do you peacably evict a person parked in a vehicle on your drive.

    Comment


      #17
      That you consider that the paperwork means they are licensees does not mean they are. Various cases have ruled not.

      For what reason do you think they have a license, please? I appreciate you may be correct, but could you help and clarify kindly, please?
      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


        #18
        Various cases have ruled not.
        Can you point these to me please.

        If the tenant has a self contained flat in the building, then I believe the "lodgers" will not be licensees
        Why does the property being a 'self contained flat' make the lodger not a licencee, why is a flat different to say a 'semi detached house'.

        could you help and clarify kindly, please?
        Sure, the property here is one self contained flat in a block of two, both within in a building which I own.
        Tenant has an AST, with exclusive possession.
        Tenant has two lodgers, each on a Lodgers Agreeement that states they do not have exclusive occupation.
        I do not reside in any part of the building.
        My tenant is experiencing a range of anti social and criminal behaviours - from the Lodger himself, and his visitor/guest.

        My tenant is also concerned about the visitor, a most unpleasant intimidating character ... does the visitor have any rights if invited in by the Lodger, and can the visitor be banned from the property, and what is the lawful position if he is then again invited in by the lodger, if banned.
        The Lodgers Agreement explicitly states occupation is just for the named lodger only, but only mention of 'Visitors' in the document is for the Lodger not to act in an Anti Social manner towards any person in the neighbourhood, including 'visitors' - which I assume means other residents visitors at the property.

        Comment


          #19
          It obviously looks dodgy to lots of people. A court might believe that this is a sham agreement.
          https://www.legalforlandlords.co.uk/...-means-prison/
          Getting it wrong can have serious consequences, particularly if you really do plan to creep up behind him and just lock him out.
          https://www.legalforlandlords.co.uk/...-means-prison/

          Tell the tenant to get a court order and remove the doubt.

          Comment


            #20
            Originally posted by bob369 View Post
            Various cases have ruled not.
            Can you point these to me please.
            We can't really give proper legal advice.

            If the tenant has a self contained flat in the building, then I believe the "lodgers" will not be licensees
            Why does the property being a 'self contained flat' make the lodger not a licencee, why is a flat different to say a 'semi detached house'
            The key definition isn't a self contained flat or a semi-detached house, it's a dwelling house.

            If what is rented constitutes a dwelling house, it can be a tenancy.
            If it's not a dwelling house, it's almost certainly not a tenancy.

            could you help and clarify kindly, please?
            Sure, the property here is one self contained flat in a block of two, both within in a building which I own.
            Tenant has an AST, with exclusive possession.
            Tenant has two lodgers, each on a Lodgers Agreeement that states they do not have exclusive occupation.
            I do not reside in any part of the building.
            If the tenant rents one of the self contained flats, which they share with two lodgers (in the same self contained flat), it's unlikely that the two people your tenant shares with are tenants themselves.

            If the tenant lives in one part of the building, in one self contained flat and the two other people live in the other "self contained flat" they are very possibly tenants of the person they pay rent to, whatever the agreement that they have signed says.


            My tenant is experiencing a range of anti social and criminal behaviours - from the Lodger himself, and his visitor/guest.

            My tenant is also concerned about the visitor, a most unpleasant intimidating character ... does the visitor have any rights if invited in by the Lodger, and can the visitor be banned from the property, and what is the lawful position if he is then again invited in by the lodger, if banned.
            The Lodgers Agreement explicitly states occupation is just for the named lodger only, but only mention of 'Visitors' in the document is for the Lodger not to act in an Anti Social manner towards any person in the neighbourhood, including 'visitors' - which I assume means other residents visitors at the property.
            The rights of the person to receive visitors depends on the status of the person.

            If they're a tenant, they can probably invite in whoever they want - that's a privilege associated with being a tenant.
            If they're a lodger, probably not.

            This isn't really your problem, though, it's the tenant who has a problem.
            Most of this discussion is about how serious their problem is - you can't do anything other than help 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


              #21
              Originally posted by Ted.E.Bear View Post
              It obviously looks dodgy to lots of people. A court might believe that this is a sham agreement.
              link should have been:-
              https://england.shelter.org.uk/profe...ements#title-3

              Comment


                #22
                bob: Thanks for clarification: You do realise, I'm sure, that only your tenant (the landlord of the alleged lodger) can do any eviction in the current circumstances? You have no standing in relationship between your tenant & any other occupants, until & unless your tenancy with your tenant ends.

                Did you have a hand in the drafting of this alleged "license", please?
                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


                  #23
                  Thanks for all the replies, I have gone off and read some of the case law, most of what I could find was not the same situation here, those found , related to a situation where their was simply a Landlord and Lodger, and that case law covered whether the lodger thought they had exclusive occupation, and hence were in fact a tenant, some were upheld some not.
                  Here the situation is different, there is Landlord - Tenant - Lodger, and I could find no case law for this situation, please guide me if you know otherwise.
                  The Landlord to Tenant relationship here confers exclusive occupation - the Case Law referred is not questioning where such use is permitted. Presume it is the Tenant to Lodger arrangement that is being questioned on this post.

                  The Shelter site explains that:
                  If there is evidence (verbal or otherwise) that a term in an agreement was never intended to be effective, the evidence can override the written agreement to determine whether the agreement is a tenancy or licence.
                  If there is a written agreement, it will provide evidence of what was intended and the burden of proof is on the person seeking to overturn the provisions of a written agreement.

                  There is a written agreement that explicity states their is no Exclusive Occupation, both I and the Tenant have keys to enter the room, and have entered the room a good few times. On several occassions recording photographically the covering up of a smoke detector, disconnecting of a Fire Door Closer and fixing of hangers to the Fire Door, discoverance of various illegal drug paraphanalia, and an Ash Tray. My presence required as witness. I would have thought those actions provide enough 'substance' to back the words of the agreement.

                  Please challenge me further on my understanding, I am not a lawyer, but simply trying to act in the best interests of the Tenant, their other Lodger, my other tenant in the building and the neighbours ... all whom are concerned at this situationn.

                  Tell the tenant to get a court order and remove the doubt.
                  Thank you for the tip, yes I think that is the route to follow if there is any doubt here.

                  If it's not a dwelling house, it's almost certainly not a tenancy
                  It is a Dwelling- and thier is a Tenancy.
                  I have looked up this definition, agree there are distinctions between a dwelling house and a dwelling - but a self contained flat though is still a dwelling, and there is a tenancy for exclusive occupation of the flat by Tenant, not sure of your point on this, elaboration would be helpful..

                  it's unlikely that the two people your tenant shares with are tenants themselves.
                  Yes that is correct, but again unsure of what your answer is telling me, the two sharers could be tenants, if that was the arrangement, but it is not and they are Lodgers.

                  and the two other people live in the other "self contained flat" they are very possibly tenants
                  I agree

                  If they're a lodger, probably not.
                  Yes that is what I understand so far, thank you.

                  link should have been:-
                  https://england.shelter.org.uk/profe...ements#title-3
                  Thank you for finding that, very helpful.

                  You do realise, I'm sure, that only your tenant (the landlord of the alleged lodger) can do any eviction in the current circumstances?
                  Yes that is what will happen - but now with a court order, however if I get a call at any time from the Tenant - where they feel threatened, then I will be attend, along with the Police being called.

                  Did you have a hand in the drafting of this alleged "license", please?
                  The Tenant asked if I could recommend any documents, as a member of the NRLA I provided a blank copy of their Lodger Agreement - which the Tenant completed and signed with the Lodger, I was however present, again as witness.

                  I wish to gain a court order for eviction, can that be sought in advance of the approaching Notices end date, or does he need to become a 'hold over' tresspasser before I can apply.

                  Comment


                    #24
                    Originally posted by bob369 View Post
                    Here the situation is different, there is Landlord - Tenant - Lodger, and I could find no case law for this situation, please guide me if you know otherwise.
                    You need to adjust your thinking on that point, - because there are two landlords here.

                    You are Landlord to your Tenant.
                    Your Tenant is Landlord to his Lodgers.

                    You have no legal relationship with those lodgers, hence why you can't evict them, you are not their landlord.

                    So as far as case law applies it still just a Landlord and tenant(s) - but it is your Tenant who is that Landlord, not you, you have no standing in that relationship. (Which is what people have been trying to tell you).

                    Comment


                      #25
                      In order to be a licensee, the lodger needs to share living space, (not just stairs and landing) with their landlord, (in this case the tenant). As the tenant has a self contained flat the lodgers will likely be tenants. See Schedule 1 s10 of the Housing Act 1988 - https://www.legislation.gov.uk/ukpga/1988/50/schedule/1

                      Comment


                        #26
                        Thanks.

                        Originally posted by bob369 View Post
                        .............
                        Here the situation is different, there is Landlord - Tenant - Lodger, ...............
                        Not quite.

                        (in what you describe) There are two landlords:

                        Situation 1 - Landlord No1 (you) & Tenant (with whom you have AST): Let's call him "Mr T".

                        Situation 2 - Landlord No 2. (Mr T) & the person they are sub-letting to, who you call (& I agree ) is lodger.

                        Key thing is lodger is Mr T's lodger: He is not your lodger;, you have no contractual relationship with him. It is entirely up to YOUR tenant (Mr T) to evict him (if Mr T wishes to), or not. You can't force Mr T to evict him (except by ending through court the AST between you & Mr T, the bailiffs will evict anyone else in the place (in theory). You cannot, may not, legally unable to evict the lodger.

                        By all means support Mr T, but eviction of the lodger is up to Mr T, not you.



                        PS Actually think there may be three landlords: The freeholder (presumably you - as freeholder) is landlord of the any leaseholders who own each flat (one of whom is you ..) (? The flats are leasehold)

                        Make sense? (Anyone else - what have I got rong, please?)
                        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


                          #27

                          I wish to gain a court order for eviction, can that be sought in advance of the approaching Notices end date, or does he need to become a 'hold over' tresspasser before I can apply.
                          Apologies that is a typo, if it wasn't for the infernal 'Moderator Approval' system being so pedantic I would have corrected this before posting, however the Forum System wouldn't even let me edit the post whilst Green, so I had to leave, without my summary once over, go to work, and then it was posted before I could make any amendments.
                          I have posted regarding this infernal 'Mod Approval' annoyance:
                          https://forums.landlordzone.co.uk/fo...quire-approval
                          I understand the need for Mod Approvals in some circumstances, but to not let you Edit whilst its being approved seems draconian.

                          The above posted text though should have read 'The Tenant wishes to' instead of 'I wish to', I could have added 'with my support'.

                          This has probably led to some duplication in questioning, I agree, I am not the Landlord of the Lodger ... and I cannot take any action, whether that is Serving Notices, Evicting or gaining Court Orders, the Tenant must be responsible for this.

                          because there are two landlords here
                          Yes agreed, from my understanding I am termed the 'Head' Landlord, and the Tenant is the 'Immediate' Landlord. There is the term 'Superior' Landlord - but I understand that applies where there are leases, which is not the case here.

                          In order to be a licensee, the lodger needs to share living space, (not just stairs and landing) with their landlord
                          The lodger shares kitchen/diner with their landlord (my tenant) - they also share bathroom and toilet with the other lodger.

                          As the tenant has a self contained flat the lodgers will likely be tenants. See Schedule 1 s10 of the Housing Act 1988 - https://www.legislation.gov.uk/ukpga/1988/50/schedule/1
                          I need to sit down with a quiet moment and read through that Legislation again, I have had an initial read through already, but it is stodgy reading ... could you point me to the exact para in that section ie 10(1) (a) and (b) for example, that you are drawing on.
                          Is there an interpretation of this peice of legislation anywhere that makes more sense, to the mere mortals amongst us, from what I have understood the arrangement here satisfies the legislation, the landlord shares facilities and it is there main home, and has been prior to the start of any letting.

                          By all means support Mr T, but eviction of the lodger is up to Mr T, not you.
                          Yes agreed, and thanks, sorry if the last post misled.

                          So rephrasing the question:
                          The Tenant wishes to gain a court order for eviction, can that be sought in advance of the approaching Notices End date, or does the lodger need to become a 'hold over' tresspasser before the order can be sought.

                          Comment


                            #28
                            Originally posted by bob369 View Post
                            In order to be a licensee, the lodger needs to share living space, (not just stairs and landing) with their landlord
                            The lodger shares kitchen/diner with their landlord (my tenant)
                            You said that your tenant had a self contained flat!

                            Comment


                              #29
                              You said that your tenant had a self contained flat!
                              Apologies, possible misunderstanding, I may have said the Tenant has a self contained flat - to help explain the building type, but I understand what you were trying to say now, thanks for the replies.

                              I note this article, which explains that even where the accomodation is self contained,, ie no shariing you can avoid creating a tenancy:
                              http://www.lodgerlandlord.co.uk/2010...-granny-annex/

                              Comment


                                #30
                                Originally posted by bob369 View Post
                                I note this article, which explains that even where the accomodation is self contained,, ie no shariing you can avoid creating a tenancy:
                                http://www.lodgerlandlord.co.uk/2010...-granny-annex/
                                Be very careful trying to treat someone who's really a tenant as a lodger.
                                It often backfires.
                                If someone is in a self contained flat, it's more sensible to treat them as a tenant.
                                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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