What evidence is normally needed?

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    What evidence is normally needed?

    For a landlord to serve a seeking possession order & notice to quit on the grounds that the tennant has sublet without permission?

    I have a client that this has happened to but she also lives there?
    Best Regards

    PI Guy

    #2
    Originally posted by PI Guy View Post
    For a landlord to serve a seeking possession order & notice to quit on the grounds that the tennant has sublet without permission?

    I have a client that this has happened to but she also lives there?
    So she is a resident landlord and the tenant is in fact her lodger?
    'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

    Comment


      #3
      Originally posted by mind the gap View Post
      So she is a resident landlord and the tenant is in fact her lodger?
      yes her lodger spends a lot of time abroad as well and the tennant also part-owns another property.

      the owner of the property is a HA

      my client is the tennant who has sublet
      Best Regards

      PI Guy

      Comment


        #4
        Originally posted by PI Guy View Post
        yes her lodger spends a lot of time abroad as well and the tennant also part-owns another property.

        the owner of the property is a HA
        I'm sorry, I'm even more confused now!

        Please explain who lives in the property in question, and under what kind of tenancy agreement, if any. The please explain who has been 'subletting' and to whom.

        What do you mean by 'a HA'?
        'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

        Comment


          #5
          ok lets start from the beginning.

          my client is a tenant of a housing association (HA). she has an assured tenancy and has had it for 15 odd years.

          recently she sublet the property to someone else although she continues to live there. she also partly owns another property.

          the HA are saying that she is not allowed to sublet in whole or in part. they say that "it has come to their attention" and have served a notice of seeking possession and a notice to quit.

          my question is, how much evidence is needed for them to do that? or are they simply fishing?

          I hope that's clearer
          Best Regards

          PI Guy

          Comment


            #6
            Originally posted by PI Guy View Post
            ok lets start from the beginning.

            my client is a tenant of a housing association (HA). she has an assured tenancy and has had it for 15 odd years.

            recently she sublet the property to someone else although she continues to live there. she also partly owns another property.

            the HA are saying that she is not allowed to sublet in whole or in part. they say that "it has come to their attention" and have served a notice of seeking possession and a notice to quit.

            my question is, how much evidence is needed for them to do that? or are they simply fishing?

            I hope that's clearer
            Yes, that's clear now, thank you, and I'm sorry, I don't know the answer to your question. Presumably the neighbours have reported the extra tenant and may have agreed to testify if necessary, but the question of how conclusively the housing association will have to prove it, is an interesting one. If there is cctv, I suppose it may be used to show the extra person coming in and out using his/her own key, but it can be hard to prove that someone is an unauthorised tenant rather than a houseguest.

            There seems no doubt that your client has been in breach of contract and I think the HA will take this very seriously, although the fact that she has been there for 15 years may afford her greater protection from eviction. I think she needs to seek legal advice!
            'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

            Comment


              #7
              From what you say, IMO there is no case for the council to claim that the premises are "sublet".

              It seems to me that in order to be sublet, a tenancy needs to be created. A lodger is not a tenant, at best he is a licensee and can be evicted almost at will of the rightful resident occupier.

              I would be getting your client to respond to the council in strong terms stating that no subletting has ever taken place either in whole or in part. State that should they issue proceedings for possession that this will be rigorously defended and strict proof will be required of the evidence they will be relying on as their grounds for seeking possession.
              On some things I am very knowledgeable, on other things I am stupid. Trouble is, sometimes I discover that the former is the latter or vice versa, and I don't know this until later - maybe even much later. Because of the number of posts I have done, I am now a Senior Member. However, read anything I write with the above in mind.

              Comment


                #8
                Originally posted by Esio Trot View Post
                From what you say, IMO there is no case for the council to claim that the premises are "sublet".

                It seems to me that in order to be sublet, a tenancy needs to be created. A lodger is not a tenant, at best he is a licensee and can be evicted almost at will of the rightful resident occupier.
                True, but the clause might well also prohibit sharing occupation without consent.
                JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                4. *- Contact info: click on my name (blue-highlight link).

                Comment


                  #9
                  So does anyone know what type of evidence is normally used in these types of cases?

                  I.e. witness statements from neighbours? is that enough? and what is the standard? is it on the balance of probabilities or beyond a reasonable doubt?
                  Best Regards

                  PI Guy

                  Comment


                    #10
                    Originally posted by PI Guy View Post
                    So does anyone know what type of evidence is normally used in these types of cases?

                    I.e. witness statements from neighbours? is that enough? and what is the standard? is it on the balance of probabilities or beyond a reasonable doubt?
                    It's not a criminal offence; the civil standard (balance of probabilities) would apply. Court will merely consider whatever evidence is adduced by either side of the dispute.
                    JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                    1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                    2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                    3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                    4. *- Contact info: click on my name (blue-highlight link).

                    Comment


                      #11
                      They are seeking possession on ground 12 in schedule 2 to the housing act 1988.

                      The specific clause of the tenancy agreement reads " to take possession of the premises at the commencement of the tenancy and not to part with possession of the premises or sub-let the whole of it."

                      They appear to believe that the tenant has sub-let the whole of it. The tenant is rarely there during the day if that makes any difference.
                      Best Regards

                      PI Guy

                      Comment


                        #12
                        Originally posted by PI Guy View Post
                        They are seeking possession on ground 12 in schedule 2 to the housing act 1988.

                        The specific clause of the tenancy agreement reads " to take possession of the premises at the commencement of the tenancy and not to part with possession of the premises or sub-let the whole of it."

                        They appear to believe that the tenant has sub-let the whole of it. The tenant is rarely there during the day if that makes any difference.
                        The Associations's own tenant is alleged to have:
                        a. sublet whole, becoming occupier's non-resident landlord; or
                        b. shared possession of part, remaining as co-occupier's resident landlord.

                        Either way, both are mentioned in posts on this thread. They cannot both be true! However, either would be a breach of the covenant not to part with possession [assuming this to mean 'occupation' and not 'possession' as including receiving rents and profits] or sub-let.
                        JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                        1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                        2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                        3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                        4. *- Contact info: click on my name (blue-highlight link).

                        Comment


                          #13
                          and therefore if the association have evidence, the tenant will lose?
                          Best Regards

                          PI Guy

                          Comment


                            #14
                            Is it a crimanl offence to sublet or is it breach of (ast) contract?

                            Comment


                              #15
                              Originally posted by PI Guy View Post
                              and therefore if the association have evidence, the tenant will lose?
                              Maybe. Remember that g12 is only a discretionary ground.
                              JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                              1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                              2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                              3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                              4. *- Contact info: click on my name (blue-highlight link).

                              Comment

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