No Tenancy agreement

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    No Tenancy agreement

    Any advice here would be much appreciated-

    A friend of mine has been in a house share ( sharing with 2 others ) for quite a few years. Landlord lives in another City so never visits the property and has informed them that he plans to sell. No one in the property has been given a tenancy agreement, deposit isn’t protected and no gas safety certificate given and from what I know there’s no HMO licence either. From what I read on these forums it seems the landlord has really got everything wrong here. He’s been talking about giving them 2 months notice to vacate.
    what are their rights ?

    #2
    Assuming this is in England or Wales there is a tenancy agreement it’s just not written down. If the landlord issues a Section 21 it will be invalid if he had taken a deposit and not protected it etc, etc.

    Your friend and other other tenants would be in a very strong position to negotiate a nice cash sum in return for agreeing to surrender the property.

    Comment


      #3
      In England.
      I’m not sure they’d want to move just yet as their in the middle of Uni exams, they’d be hoping to be there until at least September.
      So basically he has no chance of eviction? What would happen then because he wants to sell the property?

      Comment


        #4
        Doesn’t sound like the landlord has a snowball’s chance in hell of being able to use the Section 21 route. Could he use one of the Section 8 mandatory grounds to evict…very unlikely unless your friends fall into arrears


        He could sell the property with the tenants in-situ. Who would want to buy a property with tenants you can’t evict though?

        Suggest your friends contact Shelter for advice if they are concerned about their housing situation.

        Comment


          #5
          There's no automatic need to license a three person HMO, it would be something the local authority have the ability to impose, though.
          So, the first thing to do is check the council website for the local HMO rules.
          If it requires licensing and it isn't, it's not possible for the landlord to serve a no fault (section 21) notice until they apply for one.
          It might also be possible for the tenants to claim some rent back.
          But if there's no requirement to licence it, all that is academic.

          Not protecting the deposit and no Gas Safety Check (assuming there's gas) are also fatal to a section 21 notice, so if one is served, it can be, essentially ignored.
          So that would probably get the tenants to about March.
          What happens then is a matter for negotiation - based on what you've said, the landlord simply won't be able to evict them ever, the deposit can be returned to correct that, but you can't fix the Gas Safety Certificate.

          Your friends should probably simply wait for the landlord to understand his/her position.
          If they want to be there until September, that's probably achievable.
          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


            #6
            Thank you .
            I did the online HMO test for their Council and it’s saying the flat should have the ‘additional HMO license’.
            so basically if there is no paperwork at all how do you prove that you’ve even paid a deposit ?
            Am I correct in thinking to serve a section 21 these 4 things need to be in place
            1) deposit protected ( or returned to tenant if it wasn’t )
            2) gas safety certificate
            3) how to rent guide .
            4)HMO license

            Could he serve a section 8 without the above 4 things ?

            Comment


              #7
              Thanks for the advice

              so basically they could be there for years if they wanted ? Unless they fall into arrears ( then he could issue a section 8)?

              Comment


                #8
                Originally posted by Dominicaldis View Post
                Am I correct in thinking to serve a section 21 these 4 things need to be in place
                1) deposit protected ( or returned to tenant if it wasn’t )
                2) gas safety certificate
                3) how to rent guide .
                4)HMO license
                Plus an EPC

                1 - The landlord can't protect the deposit to fix the problem, they'd have to return it.
                2 - That can't be fixed. No GSC when the tenancy began can't be corrected.
                3 - Yes, it has to be the one in place when the tenancy began.
                4 - Yes.

                Could he serve a section 8 without the above 4 things ?
                Yes.
                But a section 8 has a series of specific grounds and one of those would have to apply - and the only one that might be used that isn't reliant on the tenant doing something wrong, like stopping paying rent, is that the landlord wants to move in.

                If a licence is required, when the tenants move out, they would be able to claim up to 12 months rent from the landlord with the support of the council.
                That is something that can be used in any negotiation with the landlord.

                To be fair, other than threatening the evict them, if the landlord has been decent otherwise, it's possibly just ignorant of the landlord.
                Most student lets are handled by landlord's who specialise in them, and, normally, tenancies have a fixed term linked to the academic year, so there's no risk of being evicted during term time.

                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


                  #9
                  To use a Section 8 ground 1 wouldn’t the landlord need to include a clause referring to ground 1 in the tenancy agreement and that this may be invoked, and prior to the start of the tenancy, the tenant must be served a notice explaining ground 1 and stating that the letting is on the basis that ground one may be invoked. With nothing written the landlord couldn’t use this ground even if he pretended he wanted to move back in…assuming the property is a former residence.

                  Comment


                    #10
                    Thank you jpkeats

                    That’s very interesting to know that a section 8 can be given if he says he wants to move in, even though he’s been quite ignorant in doing things correctly he can still serve a section 8 ( which I thought was purely for rent arrears)

                    TBH my friend has a decent relationship with him and apart from the place needing repainted and re carpeted ( it’s a really old property that’s had no work done ) and a leaking window ( currently using tape and a plastic sheet to stop the rain from getting in ) they are generally happy there as it’s very convenient for their Uni and transport etc .

                    I’m shocked that they could potentially claim upto 12 months rent back due to the failure to obtain an HMO license.
                    Could this be done even he decided to get a license now ? After they’d been there for a few years without one ?
                    I really don’t think they’d want to go down this route but if it could be used as a negotiation for any threat in the future they might do that.

                    Comment


                      #11
                      Really appreciate all the advice from everyone

                      Comment


                        #12
                        Originally posted by DoricPixie View Post
                        To use a Section 8 ground 1 wouldn’t the landlord need to include a clause referring to ground 1 in the tenancy agreement and that this may be invoked, and prior to the start of the tenancy, the tenant must be served a notice explaining ground 1 and stating that the letting is on the basis that ground one may be invoked. With nothing written the landlord couldn’t use this ground even if he pretended he wanted to move back in…assuming the property is a former residence.
                        And as there’s no TA this would be pretty difficult

                        Comment


                          #13
                          Originally posted by DoricPixie View Post
                          To use a Section 8 ground 1 wouldn’t the landlord need to include a clause referring to ground 1 in the tenancy agreement and that this may be invoked, and prior to the start of the tenancy, the tenant must be served a notice explaining ground 1 and stating that the letting is on the basis that ground one may be invoked. With nothing written the landlord couldn’t use this ground even if he pretended he wanted to move back in…assuming the property is a former residence.
                          That's not entirely correct.
                          The court can set aside the requirement for written notice if it is "just and equitable" to do so.

                          I don't know what would allow the court to do that, but it's not impossible.

                          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
                            Originally posted by jpkeates View Post
                            Plus an EPC
                            That depends on when the tenancy started.

                            Originally posted by jpkeates View Post
                            3 - Yes, it has to be the one in place when the tenancy began.
                            Or, possibly, the one in place when it is given to the tenant. The regulations are ambiguous

                            Comment


                              #15
                              Originally posted by Dominicaldis View Post
                              a section 8 ( which I thought was purely for rent arrears)
                              There are a number (of the order of 20) of grounds under which possession can be sought. See the Housing Act 1988.

                              Originally posted by Dominicaldis View Post
                              I’m shocked that they could potentially claim upto 12 months rent back due to the failure to obtain an HMO license.
                              Could this be done even he decided to get a license now ?
                              The claim is for the period for which they were paying rent whilst there was no required licence in place, up to a maximum of 12 months. Getting a licence ends the period for which a claim can be made.

                              Note that the need for a licence may have come in after the start of the tenancy.

                              See https://england.shelter.org.uk/profe...payment_orders

                              Comment

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